1. Introduction: Emergency – between legal theory and legal history
The aim of this Article is to uncover, by means of a legal historical account, how a protracted use of emergency measures can actualise their transformative potential by reshaping constitutional orders. I argue that, under such circumstances, emergency operates a hollowing out of the liberal content and form of constitutionalism, that can go as far as a complete transformation of political regime, enabling a thorough constitutional change. To this end, I situate my analysis in the case of interwar Romania, understood as a European semi-peripheral context in which we can capture at a granular level the displacement produced by a permanent state of emergency during the 1930s, at a historical juncture marked by multiple crises. Along this analysis, drawing on the stark example of the assertion of monarchical dictatorship in Romania, I consider the extent to which such a radical change can reshape the basic constituents of modern legality. I proceed by examining the current theoretical limitations in addressing the historical role of emergency in relation to constitutional orders. I turn then to exploring the political and legal context of the prorogation of emergency measures in 1938 Romania. Last, I examine the limited status of modern legality in a situation oversaturated by emergency measures. In doing so, I build on my previous work discussing the role of emergency and exceptional measures both in legal theory and in the historical context of the interwar period. However, my attempt here is novel, insofar it is focused on grasping the effective actualisation of this transformative potential at the moment of its operation, under specific politico-legal conditions. I thus seek to pin down the transformative potential of emergency, and to offer an example on how emergency can reshape a constitutional order. My focus is thus limited insofar as I tend to grasp one particular aspect of emergency – its transformative potential – at a particular historical moment.
Today, as a matter of constitutional theory and human rights law, we still understand emergency as being a necessarily limited and contained phenomenon, operating within the procedural safeguards specific to liberal democracies:Footnote 1 for a predetermined period of time and under conditions of proportionality, being subjected to either constitutional or judicial review. According to this view, the role of emergency is essentially ‘conservative’, insofar as following its effective operation ‘rights are to be restored, legal processes resumed’.Footnote 2
While this position has turned in many respects into an empty formula, especially in the light of the constitutional and political developments in the past three decades,Footnote 3 it continues to carry a specific theoretical and ideological weight: the conceptual core of emergency law after 1945 is that of an exceptional, extraordinary institution limited by time and contained by the law and constitutional systems. The Paris minimum standards drawn up by the International Law Association of 1985 contemplate emergency as a legal mechanism declared when states face a situation of ‘public emergency which threatens the life of a nation’,Footnote 4 with such restrictions acting as normative safeguards. Article 15 of the European Convention of Human Rights contemplates the derogation from the provisions of the Convention within situations of emergency, thus acknowledging the extraordinary character of such measures. Yet such derogation has to uphold the normative commitments of the states with regards to the core of the Convention, by requiring a justification as well as conditions concerning the enactment of emergency – as strictly determined by the exigencies of the situation and compliance with international law. However, at the penumbra of the concept lies a host of examples that would go against this position embraced by international and regional human rights standards, which as useful as they are in reflecting state practice expressing binding law, cannot be the basis of a theory of emergency. We know as a matter of legal practice and legal history that emergency has a specific inertia,Footnote 5 that by the very fact that it is connected to contexts of crisis it precedes or follows constitutional moments, and that it is in many respects operating a furtive alteration of constitutional systems.
Despite all proof to the contrary, constitutional theory continues to represent emergency as marginalia to the operation of the law, obscuring its transformative potential. As Alan Greene rightly noted: ‘permanent states of emergency today, (…) are potentially transformative but this transformative dimension is never expressly acknowledged’.Footnote 6 There are many reasons for which such a position is entrenched within the analysis of law, starting with the very theoretical foundations that dominate our legal doctrine, or in continental parlance, legal science,Footnote 7 and perhaps ending with the less palatable political consequences of recognising emergency constitutional powers to alter the body of the law.
For legal science, as a science of norms, the social, political or economic context, even if recognised as perhaps exercising an influence over the production of law, continues to be perceived as external to legal discourse: a matter for sociological consideration and analysis that does not fall within the ambit of proper jurisprudential or doctrinal inquiry. It is an outside-of-the-law whose existence has to be either bracketed or suspended, in order to think ‘legally’.Footnote 8 As Hans Kelsen explained with specific reference to emergency powers: ‘the state … is a legal system’ and ‘in situations of ‘national emergency’, the state’s action ‘cannot (…) go against the statute’.Footnote 9 Politically, recognising altering constitutional powers to constitutional bodies endowed with emergency powers, is obviously difficult to accept: it would amount to re-writing the constitutional provisions each time an emergency is declared.Footnote 10 And yet, we all know in legal terms that once an emergency is enacted, legal reality will be altered, with rights being affected – officially temporarily – but also with a specific way of thinking about the law as essentially an instrument of restoring and controlling order. Ultimately, ‘the entire purpose of declaring a state of emergency is to enable powers not ordinarily permissible under the constraints of the constitution’,Footnote 11 and operate a change within the functioning of the system. In Clinton Rossiter’s words, ‘in times of crisis a democratic, constitutional government, must be temporarily altered to whatever degree is necessary to overcome the peril and restore normal conditions’.Footnote 12
I aim to draw attention to a particular way in which emergency law can operate as a specific device that finds itself at the threshold of constitutional orders, political ideologies, constitutional imaginaries and temporalities. Let me explain this further: once declared, emergency, even under the conditions and limits of liberal constitutionalism, is able to convey both within and beyond the formal normative injunctions and provisions a significant symbolic weight that touches upon the core constitutional concepts, values and constituents. Upon its declaration, the ‘life of the nation is threatened’ both as a matter of law and as a matter of politico-legal significance.Footnote 13
Depending on the nature of the threat, the constituents of the state are to be defended under the purview of the law. Moreover, the territory is to be protected and/or quartered by repressive or protective measures, the exercise of fundamental rights is either limited, subjected to restrictions or to significant interference by public authorities, and state authorities extend their legal powers beyond the regular threshold determined by the regular operation of the law. In short, something changes in the way constitutional provisions operate. Within this distortion of the law a number of central constitutional and jurisprudential questions become apparent and mark the daily interpretation and application of the law in a significant way: ‘with the exception the power of real life breaks into a mechanism that has become torpid by repetition’.Footnote 14
Emergency raises the question of acts that are taken under the strain of circumstances, bypassing regular procedures, it evokes ‘context-generated acts – acts performed not under the guidance of rules, but under the force of circumstances’.Footnote 15
Emergency brings within the sphere of the law a specific excess of context, of ‘non-law’, a certain a-legal conceptual and practical ‘messiness’. This excess that can be traced and haunts even the most prosaic declarations of emergency, is to be taken seriously as both a jurisprudential and philosophical category. Explored, but not fully rendered by the works of Carl Schmitt and Giorgio Agamben, in their iteration of the exception, it still needs to be examined by a minute and historically attuned analysis, able to grasp its local, cultural, legal and intellectual instantiations, as a part of a transnational and comparative history of the theory and practice of emergency powers.
I believe that emergency as a constitutional concept and practice has a degree of autonomy that warrants a historical analysis of its own not at the margins of constitutional history, but as a secret nomos of modernity in its entanglement with moments of revolution, counter-revolution and social strife.Footnote 16 I hasten to note that emergency is to be distinguished from the philosophical category of the exception, which under the work of Agamben – in his reconstruction of Schmitt’s concept of Ausnahmezustand (exception) – has obscured precisely these historical and jurisprudential inflections by offering a rather de-materialised and a-historical concept.Footnote 17 To be more precise, what we deal with in this strain of literature is a conflation between emergency and exception as a part of an intellectual history that it is ultimately reducible to tensions within the Western legal tradition that start with the Aristotelian distinction between nomos and zoe.Footnote 18 As Agamben writes,
The ‘sovereign’ structure of the law, its peculiar and original ‘force’, has the form of a state of exception in which fact and law are indistinguishable (…). Life, which is thus obliged, can in the last instance be implicated in the sphere of the law only through the presupposition of its inclusive exclusion, only in an exceptio.Footnote 19
While acknowledging the importance of this type of work in grasping the central aspects of an intellectual genealogy of the concept of exception and its ability to cast its shadow over our entire politico-legal thought,Footnote 20 I depart from this position in an attempt to grasp what is historically at stake in the deployment of emergency measures and emergency powers in the context of modernity. My aim is to be able to grasp the socio-legal traces of this operation, as well and its effects on legal culture rather than to offer an ontology of law and politics within the Western tradition. In short, whereas the exception is about the intellectual trajectory and philosophical structures that determine the status of legality in a broader historical timeframe pertaining to the history of ideas, emergency is about the actual legal devices and measures entangled in the material history of law, politics and society.
I read Carl Schmitt against himself insisting on the theoretical and logical distinction between emergency as a historical category and exception as a proper philosophical one. As Schmitt noted, ‘the exception is to be understood to refer to a general concept in the theory of the state, and not merely to a construct applied to any emergency decree or state of siege’.Footnote 21 What I am interested in analysing here is how emergency, as a particular legal practice, responds to a historical configuration. I aim to reconstruct the concept of emergency, and subsequently that of exception in a move that attempts to restate the primacy of material conditions that determine legal practices In paraphrasing Schmitt, I claim that the exception as a philosophical category proves nothing:Footnote 22 what we need to know is the history of the minute, prosaic, but nonetheless disruptive and transformative potential of legal and a-legal emergencies. Against this background, I analyse the operation of a specific type of emergency, the state of siege. A model of constitutional accommodation of emergency measures, circulating from France across the globe,Footnote 23 the state of siege is enmeshed in the experience of the interwar I aim to capture here: as a distinctly continental constitutional device, pertaining to the legal tradition of Civil law,Footnote 24 it raises a number of specific questions related to the self-representation of the polity and the nexus between law, politics and authority that are intrinsically connected to the militarisation of public life during the interwar period.
I consider that the experience of the interwar is to serve as a caveat for an ‘or worse’ that liberal constitutionalism contained in its very structure as a remainder of the absolute power that it aimed to contain historically. The notion of ‘constitutional dictatorship’,Footnote 25 as well as the real and imagined Roman republican origins sustaining the historical models of emergency,Footnote 26 just as Eugénie Merieau’s important reading of Tocqueville in this symposium, all prove that the unbound executive is not extraneous to liberalism. In Mark Neocleus’s words, ‘far from being outside the rule of law, emergency powers emerge from within it’.Footnote 27 While we know that the interwar period was a specific timespan that had amassed an unprecedented erosion of parliamentary powers, and a general turn towards right-wing authoritarianism in Europe, opening the way for totalitarian experiments, the legal mechanisms of this turn have been less explored, and even less so in relation to the lessons and significance they hold for the project of building democracy through law.Footnote 28
Furthermore, while we are aware of the specific link between the global economic crisis of the 1930s and the politico-legal turmoil following its spread and effects, we are only now exploring the connection between economic cycles of production and the contemporary polycrisis befalling our polities. Perhaps, there is room to speculate that Hobsbawm’s Age of Extremes was not a ‘short century’,Footnote 29 but as Arrighi pointed out, a long timespan in which we still find ourselves.Footnote 30
2. The Context: Monarchy, authoritarianism and the fascist offensive
The focus of my historical investigation is Romania in the interwar period. This adds another level of particularity to the analysis I deploy here: it is a country with a very unclear geography, as many dependent or semi-dependent states would have through the long era of nation-states: at the intersection between the Northern Balkans, Central Europe and Eastern Europe, it is a state that effectively constituted itself as a borderland, a buffer zone between the empires. Second, it is a state that re-casted itself following a short and brutal participation in the First World War along the side of the Entente, and was subject to the Versailles treaty. It also imposed with a distinct level of military prowess and legal minutiae its sovereignty over the newly acquired territories.Footnote 31
Romania was a multi-ethnic state, ruled by a constitution guaranteeing equal protection of the law and rights to its citizens regardless of national origin, and instituted universal male suffrage. As it grew aware of its subaltern and fragile status in world politics, and it perceived its new position under international law as a necessary foothold for further development, Romania navigated rather clumsily the vagaries of the interwar era. While it reluctantly agreed to the protection of minorities within its boundaries,Footnote 32 it did not secure the recognition of its Eastern borders by the USSR, due to the staunchly anti-communist stand of the established political spectrum.Footnote 33 Furthermore, the financial crisis has severely affected the economic growth, causing further political strain and instability and increasing the rise of the far-right and antisemitic politics.
Under this historical trajectory already marked by an inherent fragility and recurring crisis, the year 1938 distinguishes itself as a specific moment of disruption and political turmoil. While opening the ‘continuum of dictatorships’Footnote 34 it proved itself to be a threshold in the dissolution of the liberal nomos. As such, this historical moment marked the beginning of a fluid transition ‘from an anti-fascist to a fascistised, royal dictatorship, and from a fascist regime to a xenophobic, conservative nationalist military dictatorship’.Footnote 35 I aim to highlight the importance of the legal entanglements of emergency in opening and devising a new space for reshaping sovereign power. The starting point for this analysis is the declaration of the state of siege by King Carol II following the dismissal of the Goga government.
This government was acting as a caretaker following a political standstill at the end of the elections of December 1937. It was led by Octavian Goga, a nationalist poet leader of a pro-German and anti-Semitic party, the National Christian Party.Footnote 36 The Goga government, appointed by a lax reading of the King’s powers to nominate the prime-minister vested by article 93 of the constitution,Footnote 37 was a clear marker of deeper processes and divisions within Romanian society. First, it was an acceptable formula for ruling the country in its pro-German turn that was building up since 1937.Footnote 38 Second, it was an attempt to secure a compromise solution between the loosely constitutional democratic parties, the King’s trans-party basis of informal power, and the overtly rebellious local fascist movement, that took part in elections under the party name Everything for the Country.Footnote 39
Growing politically within the antisemitic-milieu of the last years of Austro-Hungary, Goga was a pro-monarchist and opposed to the revolutionary inflexions of the fascist movement, while sharing otherwise their basic stand on discriminatory policies against the Jewish population.Footnote 40 Testimony to this is the hybrid character of this party, based on a fusion of Goga’s National Agrarian Party and the League of National Christian Defence, the oldest antisemitic movement in the country, in whose ranks the leader of the Iron Guard did his political apprenticeship.Footnote 41 Rather a defender of the ‘authority’ than a promotor of a national revolution, the NCP engaged in an open competition with the Iron Guard.Footnote 42
The situation was itself revealing for the level of corrosion of constitutional values and public life: Alexandru Constantin Cuza, Goga’s ally, was one of the foremost opponents of the liberal and universalist characters of the Constitution of 1923, militating explicitly against including the Jewish population within the body politic of Romania.Footnote 43 As most of the parties in the far right of the political spectrum, both the NPC and the fascist movement had important paramilitary organisations: street fights between the blue shirts of the NPC and the green shirts of the Iron Guard were a common presence during the first days of the activity of the new government.Footnote 44 By that time, political violence was already a constant presence within Romania, with the main fascist movement, the Legion of Archangel Michael being the main perpetrator since the late 1920s, and a core of hardliner ultranationalists such as Corneliu Zelea Codreanu being responsible for political assassinations and plots since 1920s.Footnote 45 The compromise that the Goga government represented was a make-shift solution for holding the rise of the Iron Guard. Indeed, the rise of the far-right had been the most significant political development through the 1930s, paralleling the economic crisis at the coming to the throne of King Carol II.
As a movement overtly calling for racial policies directed against the Jews and the Roma, ranging as far as calls for ethnic cleansing and genocide, the Legion was a symptom for deeper tensions within the social, economic and politico-legal structure of the state. In its stark opposition to the constitution and constitutional order,Footnote 46 the Legion was effecting a malaise of layers of society with mass democracy and the specific type of cronyism that the oligarchical policies the pro-monarchical wing of the National Liberal Party instituted.Footnote 47 Building on antisemitic imaginaries and anti-communist politics and suspicion, it offered a myth of national rejuvenation and rebirth through struggle against inner enemies and invaders.Footnote 48 It affirmed itself as an uncompromising competitor for power that already was on the point of forming as a separate political faction, exercising a specific claim over the sovereign power of the state. Its recourses to violence were not clandestine. The Legion used public trials as means of communication, while the inner ideological justification of violent acts against either the Jewish population and the state authorities was that of acts grounded in ‘justice’ and the higher laws of the Romanian nation.Footnote 49
The ideas defended by the fascist movement were not limited to its membership or sympathisers. Diffuse conspiracy theories and calls for radical reaction to public corruption attributed to Jewish hegemony were part of the imaginaries shared by other far-right movements.Footnote 50 What distinguished the Legion was its religious inflection, its politics of retreat and the creation of a ‘separate society’ as a formative subjective experienceFootnote 51 and a distinct locus of a new sovereignty.Footnote 52 By its clear connection to state repression the fascist movement in Romania was a product, a subject and an object of emergency measures, being closely related with their enactment: first, it operated as a para-military as a strike-breaking formation supporting the gendarmerie and the army in the early 1920sFootnote 53 but also throughout the 1930s against socialist and communist strikers.Footnote 54 Second, it determined through its actions the enactment of various states of siege through the 1930s, and third it ended up being the object of exceptional legal measures devised by the state in its attempt to repress its violent activities.Footnote 55 But inasmuch the life of the Legion was tied to the experience of emergency, its existence also highlights the fragility of a constitutional system that needed exceptional measures in order to protect itself from inner contestation.
The established part of the political spectrum was far from obeying the rules of constitutional conduct. The King, who was initially forced to renounce the throne in favour to his son in 1926, following the estrangement with his wife and the ensuing public scandal, returned on 6 June 1930 clandestinely yet with the assent of the regency council. He was responding to the call of the democratic National Peasant government, which, faced with the effects of the financial crisis, considered the return of the King as a way of rallying the country.Footnote 56 This return was from the very beginning not that of a constitutional monarch: even if all the parties involved (the government and the regency council) were in accord on his return, and the assent of the parliament was granted, the return to the throne was based on the legal spurious argument that the act of renunciation was null as one cannot renounce what one does not have.Footnote 57 The return of Carol was that of a charismatic leader, aiming to create his own mass support for authoritarian rule.Footnote 58 This explains why until 1935 at least the King was in good terms with the fascist movement: inasmuch as the Legion despised the politico-legal status quo, it considered the monarchy important to national unity.Footnote 59 However, the extreme antisemitism of the Iron Guard as well as the refusal of the fascist movement to anoint the King as their leader produced a rift between the two. Following the assassination of prime-minister IG Duca by a fascist death squad,Footnote 60 the King started to take seriously the Legion as a contender to hegemony while still showing a level of leniency towards it. The fascists were allowed to congregate publicly in nationwide rallies and even if their movement was subject to bans and legal dissolution, they reorganised under the name Everything for The Country.Footnote 61
Within this competition between the state and the fascist movement two moments are of particular importance. The issuing of the Criminal Code of 1936, as an important legal instrument aimed at introducing an authoritarian and modern vision of exercising legal power and at tackling the threats to constitutional order.Footnote 62 Parallel to this legal advancement, the fascist movement engaged in overt political violence against state authorities, by establishing a permanent death squad meant to suppress the enemies of the movement. In a last attempt to appease its growing rise, Carol asked formally for the leadership of the Legion, in exchange of a legionary cabinet. Refusing this offer, the fascists found themselves in a peculiar position of organising a political pact of non-aggression with all the other parties that was meant to ensure restraint from electoral fraud and stand against the King’s interference.Footnote 63 While the elections were free from interference, due to the majority bonus system, no party was able to claim victory.
The Goga government was thus a compromise. It was the result of the constitutional interference of a King who already had lost most of his legitimacy. Through its short existence it managed to antagonise Romania’s allies and guarantor powers, France and Britain, by an overt pro-German policy and agenda.Footnote 64 It also introduced as early as its first days of rule bans on social democratic and progressist press.Footnote 65 It was also at the origins of the first overtly antisemitic legislation in January 1938 that sought to revise the citizenship of Romanians of Jewish descent that had acquired it after 1918,Footnote 66 and counting most Jewish population. The legislation had to be reviewed, as international pressure from France, Britain and the United States as well as legal self-defense by the Jewish population were able to stall Goga’s ambitions.Footnote 67 The only success that Goga was able to mark was a personal one, as he managed to agree with the fascist movement that in the following snap elections they will support his party and will not run for elections.Footnote 68 Infuriated by this plan, and under the pressure of a Soviet military intervention in an overt pro-German, right wing authoritarian and potentially fascist Romania, the King asked for and approved Goga’s resignation.Footnote 69
3. The Law: Constitution, State of Sige, Caesarism
On 11 February King Carol II issued Decree no. 856 for the establishment of a state of siege throughout the country. The decree contained a significant provision in its Article 6 stating that ‘the state of siege will be lifted when it will be deemed appropriate’.Footnote 70 At a first glance this provision appears to be unusual as the concept and practice of emergency powers – and consequently that of the state of siege – necessarily presuppose a temporal limit for the exercise of this powers. This is even more striking if we consider the particularities of the Romanian legal historical context. Since December 1933, when prime minister Duca was assassinated, there were no less than 15 legal documents issued: statutes, royal decrees and ministerial orders with the effect of prolonging the effects of the state of siege. Regardless of the fact that the declaration of the state of siege fell within the remit of the legislative, with the executive – the government and the King being able to declare it under very specific circumstances – many of these declarations fell into a grey zone. For instance, the initial document opening these series is a Royal Decree issued under the conditions of a parliament in recess.Footnote 71 The effects of this decree were ratified by a statute only 3 months later, while this subsequent statute offered a blank cheque to the executive to declare the state of siege within six months.Footnote 72 The initial state of siege was continuously renewed during all this time from December 1936 to February 1938, yet the important legal minutia of parliamentary scrutiny was upheld, laws being passed to the effect of empowering the legislative for the declaration of siege.
Therefore, when Carol II issues the 11 February decree, he already points towards his intention of doing away with the legislative and with the whole existing constitutional process, by proroguing the state of siege sine die. In parallel with this decree a Proclamation to the Country was issued, claiming explicitly that the King aimed to lay down the supreme law which was ‘the salvation of the country’.Footnote 73 Nine days later a new constitution was issued by royal decree and submitted to plebiscite.Footnote 74 Under the new constitution, the King exercised legislative powers alongside the legislative, under the principle of unity of power. Romanian inhabitants were first subjects to the Fatherland, as bearers of duties, and only secondly were they endowed with political freedoms and formal equality before the law.Footnote 75 Political pluralism was abolished, and political activity was only allowed later in 1938 when the King established his own and the only legal party, the Front of National Rebirth.Footnote 76 Perhaps nothing better captures the level of institutional change brought about by this constitutional reform than the suppression of former Article 91 of the Constitution of 1923, which stated that all King’s powers were vested in the Constitution. As constitutionalists of the time noted, it was clear that the King was considering acting according to his role as ‘a symbol of the organic unity of the state’.Footnote 77
What is important to note here is the symbolic, legal, functional and political connection between the theory and practice of the state of siege on one hand and the new constitutional regime brought about by King Carol II. The state of siege blurs traditional categories of law, warfare, judicial practice and military tactics.Footnote 78 Rather than being exterior to the constitutional mechanisms – as for instance the legitimation of exceptional powers through the suspension of the constitution, or the invocation of necessity – the state of siege is generally (and this was the case of Romania since 1923) accommodated within the very structure of the constitutional order. This position was clearly presented by the United Sections of the Cassation Court in 1935, explaining that the state of siege is entirely a fully constitutional mechanism once it is declared constitutionallyFootnote 79 – and of course the declaration of constitutionality given by the parliament or, in limited cases by the executive, was beyond any legal or for that matter constitutional scrutiny – as a political measure or an intrinsically discretionary power.Footnote 80
At the bottom of it, any declaration of emergency and potentially all its effects were secured outside the ambit of any form of judicial reviewFootnote 81 – with the exception of blatant irregularities when for instance military governors were creating new crimes, effectively usurping legislative power.Footnote 82 At the basis of any state of siege declared through the interwar period and beyond stood a Statute on the State of Siege of the United Principalities dating from 1864Footnote 83 (and arguably in what concerns its legal effects an annex to the Code of Military Justice of the Principality of Wallachia of 1852.Footnote 84 ) The legal effects of the declaration of the state of siege were simple ones, moulded after the French Statute on the State of Siege of 1849: transfer of order-maintaining and policing powers and in some cases of judicial powers from civil authorities to military ones under the territory declared to be under siege. Concurrently, the declaration determined restrictions in the exercise of fundamental rights and political freedoms.Footnote 85
There were some legal protections against abuse – a residual review power of the courts to check the legality of the application of emergency,Footnote 86 as well as constitutional safeguards declaring that the constitution cannot be suspended, yet the exercise of the rights can be limited under the state of siege.Footnote 87 Perhaps the most important safeguard was that of the temporal limits assigned to emergency. However, their existence should not be overemphasized. As the preparatory works of the Criminal Code of 1936 attest, most of the debates concerning criminal law principles of legal responsibility for attempt, preparatory acts, political nature of a crime were grounded in the legal experience of the state of siege.Footnote 88 They thus aimed to entrench temporary and extraordinary measures within the regular operation of the criminal law.
Beyond all the legal technicalities and indeed the legal theoretical difficulties that the state of emergency entails for constitutional theory, one should not forget that it remained an essentially political–legal device aimed at responding to a particularly threatening situation. As a political device it was used both strategically in supressing internal dissent in times of war or as a mechanism of pacification within the newly occupied territories, or cynically as a blunt instrument for silencing opposition and political dissent. While it is the task of the historian to distinguish between these types of declarations and uses, and perhaps to establish taxonomies, one should be wary of anachronism: for lawyers and politicians of the time each of these declarations had concrete legal effects, political consequences and anything between the two.
4. Sovereign Power: The King and the Captain
By the month of April 1938, King Carol II had secured full hegemony over constitutional politics by completely rewriting both the material and the formal constitution. The narrative on which the monarch rested his legitimacy was essentially caesarist.Footnote 89 The dictatorial regime was brought about as a distinct sovereign dictatorshipFootnote 90 that emerged as an outgrowth and as a by-product of an already exacerbated use of state of siege.Footnote 91 In both a limited legal historical as well as in a broader political sense, the constitution of February 1938 is a constitution of the state of siege. Not only was it passed under the protection and the shadow of the siege declared on 11 February, but it was fashioned as a response of the King to a dire geopolitical and internal situation of strife, turmoil and threat. As it was noted by a contemporary commentator of the constitution, it was an expression of sovereignty: ‘the highest expression of Sovereignty is found in the measures of legitimate defense of the State, when the rulers have the right – and even the obligation – to commit even illegal acts in order to save the State in times of danger’.Footnote 92 Significantly, the state of siege was never lifted, coexisting with the existing constitutional order, to the point of fusing with it. For instance, days after the entry into force of the new constitution, a decree-law containing the provision of the Law for the Defense of Order Within the StateFootnote 93 was issued. For its part, it was aimed at tackling political violence and criminalised political propaganda, public assemblies with a political character, as well as chanting or marching in formations. Riding the wave of multiple crises in a real or putative attempt to respond their effects, and certainly in an attempt to affirm his full powers as a dictatorial monarch, Carol II fashioned himself as the saviour of the nation.
However, dissent was growing, and even if the fascist Legionary movement assured of its determination of preventing any civil war, the state apparatus was increasingly worried about the possibility of an armed insurrection. Action was soon taken in order to neutralise the Legion’s competition. As brutal and as cynical Carol II and his clique might have been in their calculations, on one point they were right: the fascist claim to embodying sovereign power separately from the official authority of the state was something to be reckoned with.Footnote 94 And even if civil war was not a distinct possibility around that time, it was inscribed in the previous actions and the evolution of the fascist movement.
This is why in April 1938, the state authorities apprehended Codreanu in a rather odd manner. Charged with contempt of authority for having insulted the Crown Councillor Nicolae Iorga, a reputed historian and prominent figure of the nationalist movement, Codreanu was put under arrest and tried.Footnote 95 While the case against him was rather shaky – the insult being done in a private letter addressed to Iorga, and the statement in question consisted in ‘you are dishonest’Footnote 96 – it provided a good opportunity for keeping Codreanu in custody.Footnote 97 In May, another case was brought against Codreanu, this time covering more serious and to some extent more plausible offences.
Codreanu was now tried on three counts: treason by possession and public reproduction of documents concerning the security of the State – Article 191, paras 1 and 2 ‘Carol II’ Penal Code, Article 190; Conspiracy against the social order – Article 209(4); Sedition – Article 210;Footnote 98 all under the conditions of the state of siege declared on 11 February.Footnote 99 He was accused of holding documents and cypher codes of the Ministry of Interior and of the secret police; of having entered in contact with a foreign power – most likely Germany – in order to prepare a social revolution, and of having stockpiled weapons and ammunitions and trained paramilitary forces with the view of provoking civil war. On the last point the indictment is clear: the Legion, and especially its paramilitary wing, the Iron Guard, was a contender to the formal sovereign power.Footnote 100
As it read:
In pursuit of the ultimate goal of Legionary organisation and activity -the defendant Corneliu Z. Codreanu, organized his military units both as a formation and as training and discipline. The establishment of the ‘Legionary Corps’ (…) proves in all evidence that the paramilitary organizations were intended (…) to substitute themselves by violent means to the legal authority.Footnote 101
Codreanu’s record of appearances before courts ever since 1923 for charges such as attempted murder and murder,Footnote 102 offences to public order and peace in 1926 and 1933,Footnote 103 and accessory to murder or murder following the assassinations of Duca and Mihai Stelescu assassination,Footnote 104 has translated in as many acquittals. The long record of violence authored by the Legionary movement was in many instances tolerated by the judiciary – especially when the accused was the leader of the movement, and even against strong evidence. It almost goes without saying that a level of impunity enhanced the forces of the movement. The conviction read in the sentencing judgment of 28 May 1938 seems to come too late. Convicted for 10 years in prison, Codreanu and his family appealed to the Supreme Court and ultimately sought pardon from the King. While the procedures were rejected, the secret services grew increasingly worried about the possibility of a fascist insurrection that might have even the support of the military.Footnote 105
At the end of November 1938, Codreanu was shot dead while allegedly attempting to flee from escort during a prison transfer. This way of dispensing of political enemies had a longer history within the activity of the Romanian repressive apparatus that was connected to the uses of emergency measures: for instance, following the repression of the Tatar Bunary uprising, extra-judicial killings were coined ‘the Bessarabian system’.Footnote 106 With this final trial we can measure how far the displacement of constitutional rule went in the early days of the royal dictatorship, expunging liberal legality from the structure of the law. In effect the trial is just a part of the obscure civil war that had slowly engulfed the society and in which recourse to sheer sovereign power was believed to be the only solution. The fact that the conflict took place between two factions from the antisemitic authoritarian Right shows even more to which extent the authority of rational legality has been effaced.
5. Conclusions
The protracted used of the state of siege and its ultimate prorogation sine die in 1938 Romania proves how emergency measures can operate as a threshold between constitutional orders, and how the transformative potential of these measures can be actualised under specific socio-historical conditions. The case analysed is also able to capture how far the logic of emergency can pervade legal thought and praxis, and affect the basics of legality in a situation of crisis. It is also able to highlight what we can grasp by analysing emergency historically, as a phenomenon grounded in a particular historical configuration, beyond the philosophical trajectory of the state of exception. Moreover, such an analysis can offer a more refined account of the Romanian interwar era by giving law and legal practice their due place in reflecting and effecting shifts within the political regimes. The analysis advanced here is only a snapshot of a more complex historical puzzle. The year 1938 marks a threshold constitutional history in a constant accumulation of social tensions, political and institutional reshuffling, and overall failures to ground and uphold a liberal nomos, that goes back to the inception of legal modernity in the European periphery. It is also a snapshot of the politico-legal history of the state of siege as an emergency mechanism operating in modern Romania ever since the 19th century.
Last, but not least, this moment is not unique: in 1940, following the territorial cession of Bessarabia, Bukovina to USSR and Transylvania to Hungary, under the pressure of the Legionary movement, the King abdicated and a new constitutional regime of an exceptional nature was installed with the power divided between general Ion Antonescu, as the Head of State – Conducător, and Horia Sima as the Head of the Legionary movement.Footnote 107 In January 1941 the Legion rebelled against the military and was quelled, giving rise to a new regime also grounded in emergency measures.Footnote 108 For its part the state of siege carried on to offer the legal and symbolic guideline in supporting the perpetration of the Holocaust.Footnote 109 In a very different context, at the end of the socialist era, in December 1989, emergency measures preceded the demise of the socialist constitution and marked the advent of the liberal order.
In his History of Sexuality, building on earlier interventions,Footnote 110 Michel Foucault hypothesises that political modernity is inherently related to a shift in the sovereign power from an attribute of the sovereign right to kill, to a power over shaping life.Footnote 111 For the right to kill to be reconstructed within the frame of the modern state a new type of discourse needs to emerge, able to justify and legitimise its exercise, namely the discourse of racism.Footnote 112 What the Romanian threshold of 1938 is able to prove is that the affirmation of sovereign power that pervades any declaration of emergency, is perhaps enough to circumvent – even if temporarily – any other discursive constrain other than those necessary for its declaration, and opens a new type of temporality, that goes beyond that of legal modernity.
The sovereign right to kill had survived within the very structure of the law, as a constant deferred potential, and as a legal ‘necessity’ that in and by itself is able to actualise the old form of sovereign power that liberal constitutionalism wanted to dispense with. Rather than acting as a Katechon in preventing civil war, or as an ‘emergency brake’Footnote 113 that would be able to support the status quo before the vagaries of history, emergency had an active part in enabling the dissolution that it aimed to contain. On one hand, by its constant use in the 1930s – in a very similar vein as in the case of Germany – it became part of the regular mechanism of the state to the point where its enactment was ‘normal’. On the other hand, it offered the legal frames and the political language for the birth of a new constitutional regime, one pledging to ‘save the country’, to put an end to social turmoil, and to abolish dissent. In doing so, it acted rather as a contradiction of its intended role, by thoroughly and explicitly founding an overt constitutional change. Once deployed, emergency opened a field in which extra-legal contexts where power intersected with legal rationalisation, legal history and subjective positions in reconstructing constitutional order and producing new constitutional imaginaries.
Acknowledgements
Views and opinions expressed are those of the author only and do not necessarily reflect those of the European Union or the European Research Council Executive Agency. Neither the European Union nor the granting authority can be held responsible for them. I am grateful to the organisers and participants at the ‘Revisiting the Dark Legacies of Illiberalism’ conference (Imre Kertész Kolleg, Jena, December 2022) and ‘Authoritarian Encounters’ workshop (still in Jena, December 2023), as well as the 6th annual convention of the International Association for Comparative Fascist Studies (COMFAS, CEU October 2023), especially to Raul Cârstocea, Constantin Iordachi and Michal Kopacek. I am indebted to those who have read and commented on this article at various stages of its development, especially to David Fraser and Przemyslaw Tacik. I am grateful to the anonymous reviewers for their attentive reading, especially for the constructive suggestions. I am solely responsible for all errors and omissions in this Article.
Funding statement
The research for this article was funded by the European Union (ERC CoG EMERGE 101087876).
Competing interests
None.
Open access
