Digression on the responsibility to protect: “The inevitability of Law and Economics” ?
In “Protection in the shadow of empire”, Anne Orford gives a post-colonial critical account of the concept of “responsibility to protect”. As suggested in the title, a quite clever pun, she argues that the R2P only comes as a theory schematizing already existing practices carried on by former imperial powers. Although a change to “sovereignty as control” to “sovereignty as responsibility” appears like a novelty, it is in fact a long established tradition, especially in the political theory of the social contract. Convening Hobbes and Carl Schmitt, she points out that both theories arose when the State’s legitimacy was being questioned by external forces (the Church or the Bolshevik revolutions). My questions very much deal with the concept of responsibility to protect but placed in a different context.
Indeed, Orford says that “the turn to protection does not have a predetermined political effect and can give rise to a range of projects directed towards quite different ends”. If protection is the raison d’être of a State, then, recourse to the “state of emergency” when the security of the State and the safety of its people are threatened makes perfect sense. It enables the State to take all appropriate measures to ensure the safety of the nation during a limited period of time. It also entails the suspension or limitation of some civic and political rights such as the freedom of assembly. Following the “Paris attacks”, the French President announced that France was at war and the emergency state was declared. However, a few months later, during his New Year’s speech, he also mentioned a second type of emergency state; a state of “economic emergency”. This is mainly so because of the aftermaths of the crisis and the high unemployment rate. In Venezuela, a country that recently made the same statement, “state of economic emergency” is enshrined in the constitution. But in France, it is not.
In my opinion, what it does is to place economy on an equal footing with security, and consequently, opposing it to the more general concept of “right”.
If the state of security emergency requires the suspension and/or limitation of civil and political rights, does its economic counterpart require suspension and/or limitation of economic and social rights? From where I stand, this statement seems paradoxical for the reason that there is an emergency situation precisely because social and economic rights are not being respected/ implemented as they should be.
So according to what standard the emergency of the economic situation is being evaluated? The welfare of the people OR, similarly to the political state of emergency aiming to protect the state’s interests, the State’s economic interests? By whom are these interests being set up? The people? The State? A supra-national entity? Or an invisible hand?
After the securitization of the State raison d’être as theorized by Foucault, should we consider this a symptomatic instantiation of an “economization” of the State raison d’être? As legal scholars, I think these questions are worth asking in order to understand the context in which law operates: as Frank Easterbrook rightly said, the connection between law and economics do seem inevitable.