2. The birth of republicanism, liberalism and the state of exception

Before 1789, slavery was practiced in the French colonies and regulated by the ‘Code Noir’, officially adopted in 1685 for the old French colonies of the West Indies – this Code made slaves a property deprived of any right and regulated their lawful use by their owners; meanwhile, slavery was prohibited on French metropolitan soil.Footnote ¹⁵ The custom was that as soon as a slave stepped foot on French soil, he was freed – because slavery cannot exist on French soil. The same principle applied in Britain, but, instead of the nature of the soil, it was the nature of the air that made it incompatible with slavery – because the air of England is too pure for a slave to breathe. This dual principle, slavery in the colonies, freedom at home, gave rise to quite a few resounding lawsuits filed by slaves returning from the colonies with their owners without being granted emancipation when they stepped foot in France or breathed the English air.Footnote ¹⁶ These cases judged in metropolitan France or Britain usually granted freedom to the incoming slaves but were only concerned with slavery ‘at home’ and had no impact on the principle of lawful slavery in the colonies.

In France, when the Declaration of the Rights of Man and Citizen (DDHC) was adopted with much fracas in August 1789, the ‘Code Noir’ was still operating in the colonies. The question of whether the Declaration applied to the colonies, and whether these two texts could coexist was left for later: the self-proclaimed Constituent Assembly had other priorities. From inception, Martial law was one of the very first priorities of the Constituent Assembly. Martial Law was adopted in October 1789, two years before France’s first Constitution, immediately signed into law by the King – in fact, the first allowed the second, as it was used and implemented on the Champ de Mars in July 1791 to repress the protesters eventually calling for a Republic. Once the threat of republicanism was dealt with, the first French Constitution was finally adopted in September 1791, installing a constitutional monarchy with Louis XVI as its constitutional monarch. The following century saw the succession of political regimes, oscillating between monarchies/empires and republics, but whose Constitutions all relied on various types of states of exceptions, usually in the form of Martial Law, enacted prior to the corresponding Constitution.Footnote ¹⁷

While the First Republic, established in 1792, proclaimed formal equality of all Frenchmen, eventually abolishing slavery during ‘the Mass Terror’ in 1794 – following Robespierre’s famous words ‘Périssent nos colonies, plutôt qu’un principe!’Footnote ¹⁸ – it was reestablished by Napoleon in 1802. Napoleon’s idea was simple: there was to be a dual legal system in place, one for metropolitan France and another for the colonies. As per Article 91 of the 1799 Constitution, laws adopted in Paris were not applicable in the empire, and colonies were to be ruled by ‘special legislation’.Footnote ¹⁹ Interestingly, the Constitution’s next article established the principle of the state of exception, suspending ‘the empire of the Constitution’ for a specified amount of time and a specific space. Later, the imperial 1802 Constitution referred in its Article 54 to a specific ‘constitution of the colonies’ to be established by an organic law.Footnote ²⁰ Then, after the Empire, the traditional form of constitutional monarchy returned for about thirty years, from 1814 to 1848. The monarchic constitutions also enshrined that metropolitan French laws were not applicable in the colonies, which were subject to ‘specific laws and regulations’.Footnote ²¹ This was the time of the conquest of Algeria, started in 1830 under the ‘July Monarchy’: the conquest of Algeria was the laboratory of dual constitutionalism, later made into a standard of liberal imperial governance under the Third Republic.

3. Dual constitutionalism in Algeria: the legacy of Alexis de Tocqueville

Tocqueville (1805–1859), the author of De la Démocratie en Amérique, published in two volumes in 1835 and 1840, and L’Ancien Régime et la Révolution, published in 1856, was an ardent colonialist. His first writings, notably Quelques idées sur les raisons qui s’opposent à ce que les Français aient de bonnes colonies (1833), are testament to this. He owed part of his career to his various plaidoyers in favour of French colonial domination of Algerians, which got him elected to Parliament in 1839 under the July Monarchy, in the early years of the conquest – however, he was, by the standard of the time, rather a moderate advocate of the use of violence for the sake of colonisation.Footnote ²²

In 1831, while he was a young magistrate, he was sent to North America to study the penal system there; he got very much interested in the American way of democracy, and at the same time developed a passion about the British and American colonisation of North America. Not only were Americans better democrats than French people, but also the British had been better ‘colonizers’ than French people, according to him. He was truly fascinated by the British empire, and not only in North America. The British colonisation of India was also of much interest to him – in dialogue with his friend John Stuart Mill on the matter, he even planned to write a book about it.Footnote ²³ At the time he wrote his main essays on democracy, France had lost much of its North American colonies to the British with the treaty of Paris in 1763, and he argued that France must, to retrieve its grandeur, enter a new era of colonisation, namely in Africa. This was a question of life and death, he advocated: France must colonise Algeria.

Beyond Quelques idées sur les raisons qui s’opposent à ce que les Français aient de bonnes colonies (1833), Tocqueville published a lot on Algeria. He, notably, wrote Sur l’Algérie (1837), Travail sur l’Algérie (1841) and Rapport sur l’Algérie (1847). He went to Algeria twice, in 1830 and 1847, and observed there how the military government behaved, using Martial Law.

His position was to oppose Martial Law in principle. Nevertheless, he considered that in Algeria, Martial Law must be used both for the conquest and ‘pacification’ process but also remain there permanently. However, it must apply only to Algerian indigenous citizens. There must be the Rule of Law for French, white people in Algeria, in order to draw French people to the colonies, and a State of exception for Muslim, Arab Algerians. This was the only way, according to him, to encourage French people to come to Algeria and to stay there: there was a need for enough dictatorship to simultaneously allow for expropriations and repression of indigenous populations for an efficient colony, and enough liberties to offer French settlers a good life. The first will be treated with Martial law, the latter with civil laws and the Constitution.

Tocqueville is perhaps the first liberal thinker to have clearly theorised the dual system dictatorship/democracy within a same State applied to two different groups: the Arab subjects and the French citizen. Even before his election to Parliament, starting with the Lettre sur l’Algérie, published in 1837, he had developed his ideas on legal dualism.

Tocqueville is also one of the first ones to acknowledge that colonialism made the colonisers even more barbarous; thus he wrote, in 1841,

Tocqueville noted that the entire architecture of the government in Algeria rested on the mechanism of the state of exception, offering the military governor an absolute power he could rely on all the time without need for justification. To him, this was fully justified; in order to engage in colonisation, the government should engage in violence: ‘Since we have committed the great violence of conquest, I think we should not avoid the small violence which is absolutely necessary to consolidate it’.Footnote ²⁷ Unlike other thinkers of his time, such as Mill, Tocqueville made no difference between martial law for the purpose of conquest and martial law for the purposes of daily administration. He did not consider the martial law regime as applied to the ‘indigenes’ to be temporary, or programmed to disappear when the ‘indigenes’ would have become capable of governing themselves. In his work on Algeria in 1841, he wrote:

In the same excerpt, he continued: ‘I do not believe that for the present our great political institutions can be introduced into Africa: the electoral system, freedom of the press, the jury. These institutions are not necessary for the infancy of societies. (…) In any case, we can say in a general way that all the political liberties must be suspended in Algeria’.Footnote ²⁹ If he wrote in De la Démocratie en Amérique that a ‘society cannot only hold by force’, at the same time, he proposed that Algeria be permanently ruled by martial law.

4. The setup of the dual legality framework in the second republic turned empire

In 1848, as the colonisation of Algeria continued unabated, and within the context of a European revolutionary movement, a worker’s revolution broke out in Paris – which Tocqueville condemned – and, following a bloody repression, the Second Republic was proclaimed. The elected Assembly, of which Tocqueville was a member, drafted a new Constitution. Just like in 1789, one of the first acts of the Constitution-drafting assembly was to work on a new version of Martial Law; notwithstanding the fact that the revolution itself had been suppressed with the use of Martial Law. This time, reference to Martial Law was enshrined in the 1848 Constitution (Article 106).Footnote ³⁰ Even though the Constitution declared Algeria to be ‘French territory’, in line with the views of Tocqueville, Article 109 of the Constitution of the Second Republic stated that the legal order applicable to the colonies should differ from metropolitan France – but only until ‘a special law would place them under the empire of the present Constitution’.Footnote ³¹ But this law would never exist. The ‘empire of the French Constitution’ would not apply in French colonies. Instead, Article 109 became the foundation of a permanent, by default, state of exception in the colonies: only when stated otherwise would republican laws be applicable in the colonies.

Some laws explicitly stated their bifurcated dual applicability. This was the case for the 1849 version of the state of siege.Footnote ³² It stated that in the metropolis, Martial Law would be declared by the elected National Assembly, and that in the colonies, given the circumstances, it would be declared discretionarily by the governor of the colony.Footnote ³³ So the new version of Martial Law, dated 9 August 1849, and signed by Louis-Napoleon Bonaparte, then still ‘President of the Republic’, devised two different procedures for declaring Martial Law, one for the colonies, one for metropolitan France. The powers granted to the military, however, were the same. As per Article 9, the military could: 1 – Make house searches, day and night; 2 – Pronounce removal measures against individuals; 3 – Order the rendering of weapons and ammunition; 4 – Ban publications and meetings. Soon, the provisions in place for the colonies would migrate back to Paris.

Elected President, Louis-Napoleon then turned the Second Republic into the Second Empire through a military coup d’état and the declaration of martial law, abolished the Constitution and enacted another, imperial Constitution, that transferred the power to declare the state of siege from the legislature to the Prince-President alone,Footnote ³⁴ which he immediately used on parts of French metropolitan territory as part of his coup d’état. In 1860, with the establishment of ministerial responsibility, the Second Empire turned parliamentary, and even liberal, with the adoption of several laws liberalising control of information and the press, for instance.Footnote ³⁵ Also, in 1860, under the now ‘liberal’ Second Empire, French laws became applicable in the colonies. However, right after this transformation, the 1865 law on naturalisation in Algeria established the ad-hoc legal category of ‘indigenous person’ deprived of full political rights, thus recreating legal dualism. The law established a distinction between French ‘citizens’ and French Muslim ‘subjects’.Footnote ³⁶

Meanwhile, economic liberalism was imposed through legal codification and land appropriation policies. The Sénatus-consulte of 1863 reorganised tribal lands, recognising them nominally but requiring their division into individual plots, making them legally transferable.Footnote ³⁷ This reform dismantled collective ownership and opened the way for European settlement. Administrative policies, including land surveys, cadastral registration, and fiscal pressures, forced many Algerian peasants to sell or mortgage their plots to pay taxes, purchase supplies, or meet debts. The result was a gradual integration of Algerian agriculture into the capitalist market, with large estates dominated by European colonists producing cereals, wine, and other export crops.Footnote ³⁸ Eventually, in 1870, Louis-Napoleon Bonaparte lost to Prussia in Sedan, and abdicated; the Republic was once again proclaimed, the third iteration of it. Yet the Third Republic would engage even further in the colonial ‘pacification’ of Algeria: civilizing through Martial Law and the forcible development of markets.

5. Liberal colonialism during the third republic: forcing the creation of markets

In 1870, when the Second Empire collapsed, parts of French metropolitan territory had been under Napoleon the Third’s state of siege for 20 years,Footnote ³⁹ but now with modern infrastructure and flourishing trade and commerce. In the political vacuum created by Bonaparte’s abdication and the uncertainty over the choice of political regime – when the Third Republic was proclaimed, no consensus as to the form of regime France should take had emerged – the Commune, a revolutionary uprising calling for communalist self-government, was proclaimed at Paris City Hall in March 1871. At the exact same time, the biggest revolt against the French took place in Algeria, called the Mokrani Revolt. Both were heavily repressed through the use of states of exceptions.

In Versailles, where the government and assembly had been displaced, monarchists and republicans were forced into a circumstantial alliance to end the Commune. They chose Adolphe Thiers, a royalist, but elected ‘head of the executive’, to lead the counterrevolution in Paris. Martial Law was declared – and would last three years, much longer than the actual Commune uprising. The anti-Commune alliance was so tenuous that it was impossible to adopt a formal Constitution and settle the form of the regime. Among the monarchists and the republicans, there was however a consensus on the topic of foreign policy and in particular on the need to pursue colonial conquest for the aggrandisement of France. Adolphe Thiers sent the military to the streets of Paris to repress the Commune, which ended in massive bloodshed, while pursuing the violent ‘pacification’ of Algeria. Eventually, a parliamentary, republican interpretation of the Constitution, called the ‘Grévy Constitution’ and dated 1879, became dominant. The same year, Parliament decided to return, together with the government, from Versailles to Paris, symbolising the victory of republicanism over monarchism. One of the first acts of the consolidated Third Republic was to adopt yet another Martial Law. In its 1878 version, it stated that only the National Assembly could declare the state of siege – except in the colonies, where this power belonged to the governor.Footnote ⁴⁰

A few years later, in 1884, it voted the following constitutional amendment: ‘the republican form of government cannot be the object of a revision proposal’.Footnote ⁴¹ The 1884 constitutional amendment settled the fate of France for good: France was now firmly a Republic, and a return to monarchy would be unconstitutional. As the regime type was settled, the liberal character of the State had to be affirmed. Unlike former republican constitutions, the Constitution of the Third Republic had no catalogue of rights. Jurists debated the question of whether to give constitutional status to the DDHC, but it was eventually decided not to constitutionalise it under the framework of the Third Republic. Therefore, major laws had to be passed to make the rights and liberties enshrined in the DDHC part of the legal order of the Third Republic. Most of French landmark liberal laws were passed during the early years of the Third Republic, such as the Law on Freedom of the Press (1881), the Law on Freedom to form Trade Unions (1884), the Law on Freedom of Association (1901), and, perhaps, the most distinctive of all, the law on the Separation of Church and State (1905). This law stated: ‘Article 1: The Republic ensures freedom of conscience. It guarantees the free exercise of religious office under restrictions in the interest of public order; Article 2: The Republic does not recognize, nor pay salaries of, nor subsidize any religion’.Footnote ⁴²

Yet, at the same time, France was using religion – Islam – as a main discriminating factor in denying rights and liberties to Muslims in the colonies and imposing on them a permanent state of exception. In Algeria, it established a legalised state of dictatorship where all executive, legislative and judicial powers were vested in the hands of a governor. The category of indigenous subject, as opposed to French citizen, created by Napoleon the Third in 1865, had not been abrogated or denounced by the new republican, liberal regime. Moreover, in 1881, the French Parliament adopted a law on the status of the indigenous population in the colonies, the infamous ‘Code of the Indigénat’, which, unlike its name suggests, had nothing of a Code, but was a set of miscellaneous pieces of legislation denying indigenous ‘subjects’ rights granted under the French Constitution and the protection of the French Civil Code. Instead, governors were given rights to order collective internment, collective fines, forced labour, deportation, and sequestration of indigenous property and population at will. These executive orders, which were not subject to prior judicial authorisation, could not be challenged before any court.Footnote ⁴³

None of the rights proclaimed in the DDHC or any other pieces of legislation were applicable in Algeria, including the separation of powers, a key principle of the DDHC. Another key principle of the DDHC, the right to property, the ‘most sacred’ right, imprescriptible, according to DDHC articles 2 and 17, was suspended – since the conquest and pacification were precisely based on expropriation. The colonies were to be administered by ‘decrees’, a system soon officially called the ‘decree’ system of Algeria. They were justified by a permanent use of a state of exception that would only apply to Muslims in Algeria – but not to settlers. In line with the views of Tocqueville, the colonial state of exception relied on legal pluralism. Colonial powers set up a legal dual system within their colonies: rights were granted to settlers, but not to the ‘indigenes’, namely the Muslims,Footnote ⁴⁴ subject to the absolute power of the military governor. To be applicable to the colonies, a law passed by the French Parliament had to have been transposed first. But no law came to transpose the Napoleonic Civil Code, nor any other code from metropolitan France.

The ‘sequestre’ was one of the three most emblematic specific laws applicable only to Muslims in Algeria. It was a criminal sanction for infringements of the special laws relative to indigénat not planned by French law. It could be ordered for a list of about 30 specific infractions, such as: hostility; meeting without authorisation; departure from the territory of the city without permit; disrespectful action; disrespectful statements towards an agent representing authority even outside of its functions; or false complaint. It was decided by the governor-general alone and consisted of the seizure of the private property of Algerians, in particular houses and land. The seized houses and land became momentarily the property of the governor-general who could rent it out to French settlers. Nevertheless, the Arabs whose property had been seized could then buy back their former property. This was a form of legalised razzia, of the type Tocqueville spoke of with admiration. (After 1830, French authorities had already begun to classify lands as ‘state-owned’ or ‘vacant’, but the late 19^th century saw this process of transfer go to individual settlers). The land could then be used by settlers for agricultural purposes, in order to develop the local economy and markets.

The most spectacular case of ‘sequestre’ happened in 1871, following the March 1871 Mokrani Revolt. The lands of about 900 000 Algerians were seized, corresponding to more than a quarter of the total Algerian population, and transferred to settlers.Footnote ⁴⁵ This greatly enriched the settler population by giving them control of the most fertile lands on Algerian soil. This also furthered the liberal project of breaking up collective land ownership and use to develop the market, consecrated by successive sets of laws in 1873, 1887, and 1897.Footnote ⁴⁶ In particular, the Warnier law of 1873 dismantled traditional communal land ownership, replacing it with private property, and creating the institution of mortgage, incentivising landowners to use their land as collateral to borrow money and be indebted.

The second sanction specifically applicable to Algerians was the collective administrative internment. The measure of administrative internment, decided discretionarily by the governor, was the most paradigmatic of all measures of the permanent Algerian state of exception. It was first used during the conquest, namely during the July Monarchy, but was then systematised under the Second and Third Republics. Any motive of public order could justify administrative detention in camps as well as, from 1900 onwards, the specific infractions of stealing herds and pilgrimage to Mecca without authorisation. Administrative internment was pronounced without specifying a specific length of detention. This internment could be pronounced either as a stand-alone measure, or as a complement to another sanction.

Finally, the last specific sanction was that of collective fines. The governor could discretionarily order the payment of collective fines and decide on the amount. This sanction was first used as part of the conquest and pacification efforts, but later, it was extended to any ‘collective crimes’ or crimes committed as a group, or when a tribe had not cooperated with the French authorities in denouncing the author of an infraction or act of hostility. The 1871 Mokrani revolt was not only punished with expropriation, but also with a collective fine of 63 million francs, which resulted in the durable impoverishment of the indigenous population. The use of collective fines was later regulated by a law circumscribing it to the punishment for wildfires – it was believed that most wildfires happening in Algeria were criminal in nature and were acts of hostility against the French.Footnote ⁴⁷

What is so striking about these measures which derogate every principle of the DDHC as well as principles on which the Third Republic rested is precisely that these were not only de facto practices.Footnote ⁴⁸ The Code of Indigénat was a law passed by the Parliament seated in Paris – other pieces of legislation were sanctioned by a vote of the very same members of Parliament who adopted the great liberal laws of the Third Republic. Authoritarianism in the colonies was made in the name of the ‘civilizing mission’, which entailed the development of economic liberalism and free markets for the enrichment of the metropolis. By the beginning of the 20^th century, much of Algerian land was now owned individually, and a land market, together with a mortgage market, developed, having been forcibly ‘grown’ there by the French.

6. The interwar period: liberal authoritarianism returns home

World War I was a key moment in the history of the State of exception, and its migration from the colonies back to the metropolis. On 2 August 1914, President Poincare declared the state of siege, applicable to the entire French territory, for the first time since the consolidation of the Third Republic, after the Commune uprising. It lasted more than five years, being eventually lifted on 12 October 1919.Footnote ⁴⁹ Thus, from 1914 to 1919, France was placed under a state of siege, giving the military wide-ranging powers. Simultaneously, a civilian emergency procedure was also being generalised, that of the ‘décret-loi’, whereby the government gained the power to legislate by decree – as in Algeria, except that, according to the constitutional procedure in place on metropolitan soil, the decree gained legislative status only after a posteriori ratification by Parliament. If the state of exception was eventually lifted at the end of the war, Parliament never recovered, and the Third Republic turned into a ‘republic of decree’. As if the decree regime of Algeria migrated back to the metropolis, Parliament was increasingly bypassed and progressively dispossessed of its law-making power. The differences in the law-making process between Algeria and France were receding. Also, after the war, some of the ‘indigeènes’ in Algeria and other colonies were granted individual political rights, in return for their participation in the war;Footnote ⁵⁰ although Algeria was still governed by decree – and the ‘Code of the Indigénat’ was still operating for Muslims.

Meanwhile, in the realm of administrative law, a parallel phenomenon was unfolding. The Council of State developed, during World War I, a prolific case law allowing derogations to established principles of administrative legality. It developed the theory of exceptional circumstances, notably in its decision of 28 June 1918 in Heyriès.Footnote ⁵¹ This theory of exceptional circumstances authorised the administrative authority to act in violation of established rules of administrative legality in exceptional circumstances – a theory with an exceptional ulterior trajectory.Footnote ⁵² Meanwhile, during the Interwar Period, the Conseil d’Etat transformed its mission so as to assist the development of economic liberalism through an expanding corpus of economically liberal case-law, condemning the economic intervention of the State, except in specific cases.Footnote ⁵³

These times witnessed the flourishing of the ‘civilizing mission’ through law. The Interwar period is in France the age d’or of Comparative Law as well as of the Colonial Schools and the consolidation of the new legal subdiscipline of ‘colonial legislation’, which had officially entered the law curriculum in 1905.Footnote ⁵⁴ Chairs of Comparative Law were set up in several cities in France, with the aim of participating in the civilising mission by exporting civilised law around the world. Societies were being classified based on their legal advancement or Westernisation, with the help of the new disciplines of anthropology and ethnology. The Colonial School, established as early as 1889 in order to train colonial governors, became extremely prestigious during the Interwar, and two of the most prestigious elite institutions, Sciences Po (then called the Ecole Libre des Sciences Politiques) and Polytechnique, also established curriculums to train colonial governors. Preparatory classes to the Colonial school were established in the most prestigious Parisian high schools, such as Lycée Louis Legrand. Students, French and from the colonies, selected through a highly competitive process, entered a two to three-year training, primarily in languages and law, before being sent to the colonies to serve the French State.Footnote ⁵⁵

The most read and authoritative law handbook of the time was that of Arthur Girault, Principles of Colonial Legislation, whose first edition is dated 1894.Footnote ⁵⁶ This handbook established as a principle the duality of the French legal system. The author starts by acknowledging that the system in place in the colonies was a ‘decree regime’ which contravened the separation of powers doctrine and other key principles of the rule of law. In its introduction, this handbook first criticised the principle of the decree regime, before turning to condoning it as a necessary evil in the colonies.

More interestingly, the handbook highlighted how the colonies were the perfect place to ‘experiment’ new legislation, in particular penal and criminal legislation, referencing another major book, La politique expérimentale, by Léon Donnat.Footnote ⁵⁸ Girault’s handbook was reprinted several times during the Third Republic. In 1933, it was replaced as a reference law handbook by another handbook, authored by Joseph Barthélémy and Paul Duez and entitled with sobriety Constitutional Law Treatise. Footnote ⁵⁹ In it, the authors wrote that France, just like the United Kingdom, must combine liberal institutions on metropolitan soil with an authoritarian constitutional order in the colonies, a dual legal system which is justified by the inequality of races and the resulting subjugation of indigenes as proven by their status as subjects, not citizens.Footnote ⁶⁰

During the interwar period, the glorification of colonisation as a mission of civilisation reached a peak – a testimony to this is the Vincennes colonial exposition of 1931, which was one of the most celebrated colonial expositions ever held by France. Meanwhile, the practice of ruling by decree in Paris did not slow down – it followed the same pattern as Article 48 in Weimar.Footnote ⁶¹ In 1939, the ‘decree-law’ procedure was officially made the regular law-making procedure of the Third Republic. Finally, in 1940, when the National Assembly of the Third Republic gave full powers to Pétain, the transition was quite smooth, as Parliament had long lost its law-making power. The Council of State could also relatively easily build on its previous case law to condone the Vichy regime. Several jurists of the Third Republic were promoted and entered the collaborationist Government – for instance, Joseph Barthélémy, the author of the above-mentioned Constitutional Law treatise, became Minister of Justice under Marshal Pétain.Footnote ⁶²

The Constitution of the Fourth Republic attempted to break with both colonialism and Nazism. It consciously did not constitutionalise any state of exception, and it also banned the practice of ‘decree-laws’ which had paved the way for the generalisation, in metropolitan France, of ‘government by decree’: Article 13 stated that ‘The National Assembly alone votes the law. It cannot delegate this right’. Eventually, the Code of the Indigénat was repealed in 1946, the same year the Constitution was adopted by referendum. But this unified, liberal constitutional order did not last long, and the Fourth Republic fell back into the ills of the Third Republic. In 1954 a constitutional revision brought Martial Law back into the Constitution,Footnote ⁶³ and the practice of decree-laws was re-established. Meanwhile, in Algeria, the practice of internment camps and torture became systematic, although they were no longer sanctioned by law – these practices were soon however ‘legalized’ by the enactment of a new law of exception, the 1955 law on the state of emergency, whose aim was to replace the state of siege with a civilian version of it. The Fifth Republic would, in continuity with the Third, constitutionalise the practice of decree-laws (renamed ‘ordonnances’) as well as various states of exception, to be widely used in the colonies and, after decolonisation, on populations descending from Algerian ‘indigenes’.Footnote ⁶⁴

Apart from Joseph Barthélémy, a good example of this fluidity between liberal imperialism of the Third Republic, Nazism of the Vichy Regime and liberal authoritarianism of the Fifth Republic can be found in the biography of Maurice Papon. In 1932–1933, he was a military officer in the colonial army, based in Paris. He then served in Libya and Morocco. In 1940, as a civil servant of the Ministry of Interior, he became a key official of the Vichy Regime and collaborator, overseeing a ‘department of Jewish Questions’, involved in deportations to camps. From 1951 to 1954, he worked as secretary-general to the Paris Police, overseeing notably Algerian ‘issues’ – Algerian workers were massively mobilised to rebuild France after WWII, and meanwhile largely discriminated against. Then, in 1954, he was sent to the colonies, first to Morocco then to Algeria, where he supervised operations of torture against independentists and worked under the Algerian State of Emergency of 1955. In 1958, he was appointed to the Police Prefecture where he presided over operations to ‘deradicalize’ Algerians in Paris from the influence of the FLN – he imposed selective states of emergencies on Algerians in Paris, such as Algerian-only curfews. In October 1961, a protest against such curfew was repressed: Algerians were shot by the police and drowned in the Seine river – the number of casualties is still, today, not yet established officially, but historians report about a hundred deaths.Footnote ⁶⁵ Leaving the civil service, he then became a CEO in the Defence industry before becoming Minister of Budget under Prime Minister Raymond Barre III (1978–1981), praising the economic policies of General Pinochet in Chile. Eventually, in 1998, he was convicted of crimes against humanity for his role in the deportation of Jews – he fled, was arrested, and freed for health reasons.Footnote ⁶⁶

7. Concluding remarks

The principle of setting up dictatorships in the colonies – authoritarianism – for forcing and enforcing markets – economic liberalism – has been a key driver of Liberal Imperialism from the 19^th century onwards, becoming increasingly neoliberal as capitalism did. The aim was to force capitalist exploitation premised upon compatible doctrines of economic liberalism and racism.

Compared to the notion of Liberal Authoritarianism as crafted by Hermann Heller to refer to Carl Schmitt’s idea of an authoritarian State, a free economy, based on a presidential state of exception, later implemented by the Nazis, the added value of using ‘Liberal Authoritarianism’ to refer to this colonial policy and the justification for using it retroactively are twofold. First, while Liberal Imperialism is not established as a category of constitutional thought but rather of international relations, history, or other social sciences, Liberal Authoritarianism is referring to a political and economic model of bifurcated legality, from the point of view of the metropolitan State. Second, it allows to establish the continuity and genealogy of Nazism/Vichysm with imperialism and colonialism and also with contemporary developments of bifurcated legality on immigrants using the state of emergency, a liberal legal tool, to reconcile liberties for some at the expense of authoritarianism for others.

The colonial-Nazi continuum, as most vividly depicted by Aimé Césaire,Footnote ⁶⁷ is illustrated by the history of the state of exception in France and its colonies – the exception in the colonies, a liberal–authoritarian encounter during the Third Republic, eventually returned home during the Vichy Regime. During World War I, states of exception and rule by decree, in France, but also in other imperial democracies, followed a common path, as Giorgio Agamben pointed out.Footnote ⁶⁸ What Agamben insufficiently highlighted is how colonial and imperial the genealogy of the State of exception is, and the ‘boomerang’ effect colonial governance exercises on liberalism at home, a point Foucault briefly touched upon.Footnote ⁶⁹ If the authoritarian practices of liberal imperialism have been documented for the British and German empires,Footnote ⁷⁰ this work is still in its infancy when it comes to France and its empire, especially as part of legal scholarship.Footnote ⁷¹ This dual legal system in fact allowed the coexistence, without much cognitive dissonance, of the proclamation of equality before the law in the metropolis and the practice of inequality before the law in the colonies, of the proclamation of liberal democracy in Paris and the practice of authoritarianism in Alger. This mechanism of reconciling contradictions thanks to the idea of the exception is still today woven into the very fabric of the French republican, liberal, post-empire.