How Did France Come to Look Like a Consolidated Democracy - Essay Example

How did France come to look like a consoli d democracy and why the fifth republic has been a relatively stable period in French history As expressions of primordial human aspirations, freedom and order are the key components of the equation of politics. Beginning with Plato, political thought and the philosophy of law have generally treated them as antithetical, because both concepts proceed from mutually exclusive systems of value. Debating the finality of the state, scholars have privileged either order and security or freedom and democracy, with each ideal being achievable only at the expense of the other. Hobbes' De Cive and Spinoza's Tractatus are two well-known intellectual illustrations of this polarity. This partly explains why democracies, unless the freedom on which they are founded is violated, are assumed to be poorly equipped to deal with threats to their security. This antinomy currently appears to be more pronounced as both terms of the alternative have been assuming new configurations. In terms of security, two opposing trends are at work. There is on the one hand an overall sense of irenization of modern polities' internal and external order that is encapsulated in the image of the neo-Saint-Simonean "consensual/warless society," and the parent neo-Hegelian view of "'the end of history." At the domestic level, their sociopolitical foundations are no longer questioned, and conflicts over the management of the state are settled through electoral alternatives. At the external level, appeasement induced by nuclear deterrence and continued with the progress of disarmament policies was enhanced by the collapse of the communist system, which represented enmity for the West. On the other hand, a new and more ambivalent threat pattern emerged that increases the ubiquity of order and security issues. Within societies, deepening center-periphery tensions and sociological cleavages lead to the displacement of traditional civility by more frictional relationships. From without, menaces become more insidious, discontinuous, and multifocal, and less predictable and identifiable than before the end of bipolarity, extending on the low-intensity side of the violence spectrum and assuming unconventional aspects. Concomitantly, old-fashioned institutions and instruments of violence management, doctrines, and protocols ruling their employment, and their articulations with the state appearing less suitable and effective, call for other less orthodox means based on preemption, swiftness, and secrecy, which are generally at variance with the democratic process. The concept of democracy has been evolving also. Karl Mannheim, T. H. Marshall, and more recently Edward Shils have described its logic in advanced polities. First, rights have been extended and their nature modified to encompass almost every aspect of the individual's life. Formerly limited to civic and political contents, they became economic and social, and finally sociological and cultural so as to include security. Second, the beneficiaries of these rights, once very few, have been extended to include the farthest peripheries of the social system (even beyond, in that advocates of the so-called "natural contract" or "deep ecology" also include animals and the environment). Thus, those who until recently would not have been judged as legitimate recipients of such rights, either because they were unable to enjoy them--e.g., the child, those mentally impaired, or immigrants, or those legally deprived such as delinquents--are now considered full members of the polity. Democratic rights, in other words, are seen as belonging to everyone, partisans as well as adversaries of democracy. Saint-Just's famous utterance, "no freedom for the enemy of freedom," would not be applicable today. Democracy has become a holistic concept, no longer defined in a discrete manner, be it in terms of the rights composing it or in terms of its titulars. The dilemma, then, is obvious. The rightful exigency for order and security often implies the use of means that might lead to a violation of other rights that may be less politically tolerable. A provisional interruption of the democratic process, formerly justifiable in light of the clear-cut nature of threats and the modest level of democratization, is not now feasible. The "efficiency" of terrorist techniques is based precisely on their playing with democratic principles with their own logic. Responses to this problem are conditioned by various factors, such as contiguity with threats, past experiences, cultural background, or the charisma of the state. Given the increasing economic, political, and normative interdependence within the democratic state system--at least in the Euro-Atlantic area, with Israel and Japan at either end the range of responses remains fairly narrow and national specificities are therefore less salient. Not without singularities, France offers a relevant case of efficient management of security issues in a democratic perspective and all the more illustrative in that security is central to its history. France, a military power with nuclear capability, is a decisive partner in Europe. It is a country with important imperial interests, as a result of its overseas national dependencies (the dpartements and territoires d'outre-mer in the Indian, Pacific, and Atlantic oceans) and its privileged relations with numerous Sub-Saharan states. It is also a society with strong centrifugal tendencies and a significant immigrant population. The wide range of France's security-related actions further demonstrates the centrality of the issue. It has been involved in classic interstate warfare (from the two world wars to the recent conflict in the Gulf); colonial conflicts (Indochinese and Algerian); numerous low-intensity interventions overseas, from operations of order restoration (in several West and Central African states) to rescue and humanitarian missions (Kolwesi, Togo, and Nicaragua): hostage crises (in Lebanon and New-Caledonia); antiterrorist actions that were both internal (Corsican, Basque) and external (Palestinian and Arab); and peacekeeping operations around the world (Middle-East, Bosnia, Cambodia, Somalia). The present analysis is structured around the six themes defined for the three case studies in this symposium. Given space limitations, it is not possible to treat the multiple facets of the issue, and the historical dimension is truncated. Even for the contemporary period, the question cannot be dealt with from both the internal and external perspectives. Finally, the various approaches, political and economic, legal and constitutional, by which the topic is best understood, could not be systematically developed. The following consequently must be taken only as sketches for further reflections. National Security and the Rule of Law The framing of security-related actions within a system of norms was a perennial concern in the West prior to the rise of democratic structures. With regard to waging war, weapons employment, and territorial and human protection, the Christian-scholastic and humanistic traditions have been critical for integrating legal and moral considerations into those of economy and efficiency in existence since antiquity. Yet even if this legacy was continued by emerging European nation-states, security-related crises have generally been periods of improvised and uncontrolled suspension of the rule of law, often amounting to its violation. At best, the only existing juridicial justifications for such parentheses in the imperium of law were the ambiguous doctrines of ragio di stato and necessity, as the German Notrecht, by which the legitimate nature of the ends pursued absolves whatever means employed. These approaches to the management of crisis outside legality would not be conceivable in democracies without the negation of their essence, i.e., the principle of the perenniality of law that supposes its operation whatever the circumstances. Such a principle implies the production of a "law of abnormality" (Gicquel 21-34) that is characterized by an ex ante definition of crises and the legality and juridicity of their treatment, and is at the same time aimed at the preservation of the continuity of the state while avoiding any abusive expansion of the public authorities' power. In France, the establishment of such a legal framing for handling security issues has been progressive. When a democracy is in development, there have been times of legal vacuity. Perceiving the foundations of the country to be challenged, governments have not hesitated to resort to full-scale unlawful repression, such as that used during the Revolution by the colonnes infernales against the Vende rebellion, which culminated in 1793 with the symptomatically defined period of Terror. It should be noted that references to the Roman dictatorship, which the revolutionary Comit de Salut public was supposed to emulate, served to provide a legal cloak for the regime. The conquest of the capital city, and the ruthless destruction of the Commune of Paris by the versaillaises troops in 1871 was another of these repressive episodes. Moreover, there were areas in which the law was lifted in the face of crisis, and populations whose status was treated without regard for the law. Saint-Domingue (now Haiti) and Spain, which Napoleon tried to control, and later the whole colonial empire that France dominated, are illustrations of such legal segregation. By the mid-twentieth century however, democratic consciousness had evolved to the point that policies treating security crises in disregard of the law were unacceptable. Today, with some reservations, only terrorist actions are considered as matters to be handled outside of the democratic process. When the actions have a foreign origin, and despite some professional jurists' scruples, it is not difficult to adopt measures allowing special powers to public authorities. Generally, the public will accept, if not push for, decisions somewhat at the margin of the rule of law, if they protect an innocent population: attesting to the agreement registered with one minister of the interior's declaration that "terrorists must be terrorized." However, appreciation of the illegitimacy of certain terrorist actions, and, a contrario, the legitimacy of responses to them, is not always easy to define. This difficulty is illustrated by the 1988 Ouvea affair in New Caledonia, in which Kanak independents, having shot four gendarmes, took 24 persons hostage, including the public prosecutor. If this was officially considered a criminal action engaged in by a minority to impose its view on a population that rejected it, others read it through the lens of decolonization as the only strategy for an exploited ethnic group to have its independence recognized. Polemics about the way the crisis was managed, most notably the death of two protagonists after their surrender, which led to several official investigations and sanctions, demonstrates that even when public opinion tolerates a swift if violent response, the rule of law cannot be completely bypassed. In any case, the length of its suspension must remain as short as possible. The creation of several institutions to deal with terrorism, as well as a system of graduated responses with numerous measures of prevention, underlines the fact that, even in this particular area of security, concern for acting within the rule of law is no longer absent. (Schmelck 53-64) The range of the so-called powers of crisis constituting this "law of abnormality" is fairly wide. The powers' origins are constitutional, legislative, and jurisprudential. They are organized to offer progressive and modulated responses adapted to the intensity of the crisis during peace and war. At the lower end of the spectrum are the means at the disposal of government, or its representatives, to overcome specific problems: 1) to carry out searches, seize documents, and even arrest (article 30 of the code of penal procedure) when the safety of the state is at stake: 2) to authorize the requisition of goods, services, and persons (law of July 1877, completed in July 1938 and January 1959) in case of military mobilization, as was done with the famous Marne taxis in 1914 and lately during the Gulf war with French shipping and airline companies; 3) to dissolve associations that put public order or the integrity of the nation in jeopardy (law of January 1936); and 4) to call on reservists (the raise en garde) if required for national defense (ordinance of January 1959). Moreover, for specific and punctual issues, the executive branch has the ability to legislate via the legislative and referendary habilitations (art. 38 and 92 of the constitution). Farther along the spectrum, and concerning time of war, insurrection, natural disaster, or general strike, the theory of "exceptional circumstances," elaborated by the Council of the State (the highest administrative court) at the end of World War I, allows administrative authorities (national and local) to rule in areas in principle reserved for lawmakers, but under jurisdictional control. The operational defense of the territory (DOT) constitutes an additional crisis contingency that transfers certain powers normally belonging to civilian authorities to the military. This permits protection of key sectors (from telecommunications to the nuclear forces), if threatened by infiltration or invasion (ordinance of January 1959 and decree of 1 March 1973). (Bizard 87-97) Beyond these enactments are the two known classical procedures of the state of siege (martial law) that go back to a bill of August 1849, completed in April 1878, and April 1916 (now art. 36 of the 1958 constitution). Also invoked is the state of emergency issued by a bill of April 1955 and completed in April 1960, both decreed by the council of ministers. After twelve days these must be authorized by the parliament. They differ in that the former, decided if there is an "imminent peril resulting from a foreign war or an armed insurrection," transfers police powers to the military, while the latter, decided in case of an "imminent peril resulting from a serious impairment to public order or from events presenting ... the character of a national calamity," increases the powers of civilian authorities, notably the prefects. If the state of siege has been decided during world wars, the state of emergency has been the common procedure since 1945, and was utilized in 1960 during the Algerian war and again in 1984 in New Caledonia. Should these measures be exhausted, or if the crisis turns paroxystic, a last possibility is offered with the application of article 16 of the constitution (itself an heir of art. 92 of the 1799 and 1814 constitutions and an imitator of art. 48 of the Weimar constitution), the ultima ratio for facing an exceptionally severe crisis. (Voisset 1-2) Although constitutional, the powers entrusted to the head of the state are so extraordinary that the institution appears to be a functional equivalent of a dictatorship. It is activated when "the institutions of the republic, the integrity of the territory, the independence of the nation or the execution of its international engagements" are faced with a "serious and immediate threat" on the one hand, and when "the regular functioning of constitutional public powers" is interrupted on the other. The powers of the president are then considerably extended, since he is to take "the steps required by the circumstances." That is, he temporarily acts in place of the government and the parliament, and he may suspend the application of one or more articles of the constitution. This is done in order "to see to it that constitutional public powers ... have means to accomplish their mission" and "in the least amount of time." In other words, actions engaged in by means of article 16 must aim at interrupting its very application. Article 16 has been used only once, for five months by General de Gaulle following the attempted military coup in Algeria in April 1961. It has not been seriously invoked since. Regardless of the exceptional character of these legal instruments, the rule of law is never cast aside. Moreover, each corresponds to a given level of crisis. They are of the law, although they sometimes imply a distance from the normal legality, notably regarding public liberties. Even the extreme case of article 16, considered by many jurists as too easy to set in motion, and excessive as well as exclusive in the powers transferred, conforms to legal conditions. The head of state must consult with the prime minister, the presidents of each chamber, and the Constitutional council, and then address the nation. During its operation, a jurisdictional and political control remains functional. The parliament still meets automatically, and the national assembly cannot be dissolved, although the latter is not really involved in the management of the crisis. In most other cases, the judge, although a posteriori, evaluates the adaptation and proportional nature of the measures taken in terms of the circumstances, and the habilitations must be ratified by the parliament. Risks of excess are also attenuated by the possibility of appeals before the courts in order to cancel a decision that would violate the law and possibly to obtain reparation for unjust damages resulting from its application. In sum, the French way of treating security-related problems is versatile enough to protect the continuity of the state within the demands of the rule of law. But while eschewing the violation of democratic rights, it also avoids discouragement and paralysis of political authorities about taking action should difficulties arise. National Security Decision-Making Security is the realm of archetypical political decision. In traditional nondemocratic structures, heads of state are military leaders as well as chiefs of justice. In democratic regimes the issue is more complex, because policy formulation belongs to civilian authorities representative of national sovereignty, which implies both institutional subordination of experts in armed violence and popular deliberation. Given the technical nature of national security management, however, particularly in large-scale external confrontations, the opinion of military professionals remains decisive and their role influential. This was the case in France until the mid-twentieth century, although the ultimate decisions regarding high strategy and the central core of military policy were controlled by governmental and parliamentary authorities. There were, however, times of crisis during which the military weighed heavily in key defense decisions, as shown by the experience of World Wars I and If. For example, men like Generals Foch and Weygand were sometimes tempted to invest in the political sphere, as also in the late 1950s and early 1960s during the Algerian war. (Weidenfeld and Nicholson, 1963) It is only recently that the separation of the military from the national defense decision-making process appears to be fully institutionalized. This particular question is examined here along three lines: 1) the subordination of the military; 2) the process of decision-making within the governmental sphere; and 3) the power structure within the military. Because of the increasingly comprehensive nature of national security and its ramifications in sectors previously viewed as nonmilitary, the civilian political role has expanded and military expertise has become more subordinate. From recruitment policy to targeting doctrine, from armament programming to tactical planning, civilian authorities play the leading roles. In a way, the failure and traumas subsequent to the Indochinese and Algerian conflicts have left durable marks, and have reinforced traditional distrust of the military about politics. But the main factor in this process was certainly the nuclearization of the French defense system undertaken in the mid-1960s. Given the cataclysmic nature of atomic weaponry, especially when conceived to be employed through massive retaliation, decisions about it are inevitably more political than military. The integrated character of French deterrence doctrine renders decisions concerning tactical nuclear weapons as well as conventional forces inseparable from those at the strategic level. Unlike the American model of a graduated response to a conventional attack, France has developed a doctrine in which conventional and tactical force components are not to be used as battle instruments, but as a means for testing the enemy's intentions and as a warning signifying readiness to resort to a strategic strike. The renaming of the tactical nuclear stratum as prestrategic is significant. Because the ultimate use of massive atomic retaliation is always presupposed in such a system, the engagement of even the lowest echelon of the defense machinery is therefore inherently political and can only belong to the civilian powers. Deterrence appears then as a kind of dialogue developed between the French leaders and their foreign adversaries. The military no longer determines the terms of this relationship. Instead, their role is confined to putting to work the elements of defense by conferring to them the greatest degree of operability. dynamic of civilian intervention in the area of military actions, from nuclear to lower-intensity operations, has thus been put into motion in France. From rescue operations, as in Kolwezi in 1978, or missions of protection for friendly states, as in Chad in 1983-84, to the management of hostage crises as in New Caledonia in 1988, or participation in a coalition as in the Gulf War, the supervision of the presidency has been continuous and has involved the minutiae of warfare. Decisions about the type of weapon or equipment to be used, the targets to be identified, the volume and the nature of forces to be engaged, are seen as political. In the Gulf War, for example, decisions about the flying of the Jaguar aircraft, or the explicit exclusion of the use of chemical and nuclear weapons, were actually made by the president. These decisions were also meant to indicate to the Arab countries, which France generally considers as partners, the modulated level of French involvement in the war. The habit of civilian authorities of being informed, consulted in depth, and obeyed, has combined with symmetrical practices from the military, which is now accustomed to a regular report and request for instructions before any important action. Moreover, the inclination of the contemporary media to interpret any military decision in a political sense reinforces this process. And the process is facilitated by the reliability and rapidity of modern communication systems, which allows the political authority to follow the unfolding of operations in actual time and space and to intervene when necessary. With civilian control of the decision-making process for national security established, the second issue is how it functions at the governmental level. The long-term trend is toward increasing centralization of decision-making. The constitution of 1958 seemed to divide national defense responsibilities among different authorities. The president is the head of the armed forces as well as the custodian of national independence, the integrity of the territory, and of international agreements (art. 5 and 15). The prime minister directs the government, which is in charge of the armed forces and is responsible for national defense (art. 20 and 21). The parliament authorizes the declaration of war (art. 35). Other bills, such as the ordinance of January 1959 on the general organization of defense, which gives the overall military direction of the defense to the prime minister (art. 9), and a decree of January 1964 which gives the president the exclusive right to engage the strategic air force, have reinforced this impression of a dissemination of the national security decision-making process. (Guillaume-Hoffnung 53-70) In fact, however, in light of interpretations of these texts, as well as of other measures such as the decrees of July 1962, December 1971, July 1975, and a law of December 1972, and the practice (beginning with the Algerian war and continued with the various low-intensity missions in Africa and Middle-east), of the president defining his own area of competence, he has evolved as the leading actor in the area of security, a trend confirmed by the prime minister's failed attempt in 1986 to define his own area of competence. The centrality of nuclear weapons in French defense is decisive in this regard. Francois Mitterrand noted in November 1983 that: "The key piece of France's deterrence strategy, is the chief of the state; it is me ..., everything rests on its determination.... " (Chantebout 21-32) The Gulf War enhanced further his role as chief of the armies and war leader within a coalition for large-scale conflict. Through specialized and confidential committees and councils, and the military network surrounding the presidential office, notably the president's own military chief of staff which operates as a genuine counter defense minister and as a de facto general chief of staff of the armed forces, President Mitterrand completely controlled military policy formulation. The prime minister assumed only a subordinate role, managing then, in addition to nonmilitary functions such as the administration of the economic, social, and financial consequences of the crisis, interministerial coordination of decisions, intelligence, and antiterrorist measures through the operations of the National Security Committee, the Interministerial committee of antiterrorist struggle, and the coordinative unit of antiterrorist action. The "absolutist" security role of the president also overshadowed parliamentary powers. The role of the legislative branch in this area has declined since World War I, reduced to debating the budget and laws of the military program with a limited margin of power for amendment, because parliamentary commissions depend on the defense minister for their information. The legislative competence to authorize the declaration of war (art. 35 of the 1958 constitution) seems only pro forma and is bypassed in practice. In August 1914, the parliament voted exceptional powers to a government that had already decreed mobilization. In September 1939 it consented to vote a special money supply. However, there was no declaration of war or consultation (except for the Suez expedition in 1956) for military operations in Korea (a battalion was sent), Indochina, or Algeria in the fifties, or the overseas low-intensity actions afterwards. Defined as a United Nations collective security operation, the Gulf War was also considered out of the reach of article 35. This said, an ultra-presidentialist vision of security role, especially the idea that the decision-making process in security affairs falls outside democratic scrutiny, would probably be exaggerated. During the Gulf War, for example, the French parliament's evanescence was rightly underlined, especially when compared to the House of Commons and the U.S. Congress, but it was not ignored altogether. Summoned to an extraordinary session, it debated the French military engagement on the basis of art. 49-1 and 4 rather than 35, and approved it by a large majority in each chamber. While not seated in session, specialists in defense and international affairs, as well as representatives of political groups, were briefed each week about the development of the operations. In order to appease growing anxiety, relevant parliamentary commissions were to be convened in an open forum, and had the war not been quickly concluded, a genuine debate might have taken place. Further, the head of state had been attentive to public opinion, addressing it no less than five times and having the ministers and military staff conduct televised explanations and discussions. Nevertheless, such an arrangement, which favors the presidency at the expense of national representation, would need to be reviewed in the case of a longer and more lethal conflict. (Hadas-Lebel 76-91) Works Cited Jean Gicquel, Droit constitutionnel et institutions politiques (Paris: Montchrestien, 1991) 669; see also, Pierre-Cleacute;ment Frier, "Les lgislations d'exception," Pouvoirs 10 (1979): 21-34. Robert Schmelck and Georges Piccac, "L'Etat face au terrorisme," Pouvoirs 10 (1979): 53-64. Alain Bizard, "La dfense oprationnelle du territoire (DOT)," Pouvoirs 38 (1986): 87-97. Michle Voisset, L'article 16 de la constitution du 4 octobre 1958 (Paris: Librairie gnrale de droit et de jurisprudence, 1969). Accounts of French civil-military relations are quite numerous: for an overview in English see Paul-Marie de La Gorce, The French Army: A Military-Political History (London: Weidenfeld and Nicholson, 1963). M. Guillaume-Hoffnung, "La prparation de la dcision militaire sous la Ve Rpublique," Administration 123 (March 1984): 53-70. Bernard Chantebout, "La dissuasion nuclaire et le pouvoir prsidentiel," Pouvoirs :38 (1986): 21-32; also Samy Cohen, La monarchie nuclaire (Paris: Hachette, 1986). Raphal Hadas-Lebel, "La Ve Rpublique et la guerre," Pouvoirs 58 (1991): 5-32; and Guy Carcassonne, et al. "Parlements et dmocraties en guerre," ibid. 76-91. Read More