Our Neo Leviathan?

In his principal writings Thomas Hobbes granted absolute powers to the sovereign, whether king or parliament. The British model in theory still maintains such absolute powers vested in the "Queen acting in Parliament." However, the Brits by custom and tradition, and the Founding Fathers pondering our own Constitution, have placed limits ("checks and balances") upon our executives -- president, prime minister, governor, mayor whatever.

Thus, it looks to be beyond his legitimate powers that George W. Bush has been straying with his defiance of laws -- both international and Constitutional. The caveat here is that such excesses are based on the most dangerous of precedents. While reading for review Austin Sarat's book on judicial clemency (Mercy on Trial: What It Means to Stop an Execution, Princeton University Press, 2005), I happened upon a direct reference to what anyone who is familiar with Hitler's rise to power knows all too well -- his use of emergency powers to take control of Germany and thereby the launching of the horrors of both WW2 and the Holocaust.

To run to the appropriate quote, Carl Schmitt, prominent legal theorist for both the Weimar Republic and for the Nazis in power, put it: "[The sovereign is he who decides on the state of exception." Per Sarat's comment, "Schmitt . . . understood the exception in relation to a state of emergency, a situation of economic and political crisis that imperils the state and would require, for resolution, the suspension of regular law."

Presumably this is not the text that Bush and his defenders have had in mind to justify his violations of law, but the parallel is there to be developed and those who are now critics of Bush's illegal acts, such as David Gergen, advisor to four presidents, and many a legal authority, are now warning Bush -- and us -- that he has gone too far -- far too far beyond the proper limits of the rule of law!
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"A war is just if there is no alternative, and the resort
to arms is legitimate if they represent your last hope." (Livy)
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Ed Kent 718-951-5324 (voice mail only) [blind copies]
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