Metapolítica
Articles: This article was written by my friend and colleague Luis Manuel Sanchez, a senior scholar Arequipa and comes complete their doctoral studies at the National University of Australia. This article will appear soon in the Journal of Law, Universidad Nacional de San Agustín de Arequipa (UNSA). I thank Manuel afford to hang your text and you'll soon be answering his critics. (EHN)
By Luis Manuel Sánchez Fernández
Contents 1. Conservative Thinking
2. Schmitt Policy
3. Exception and Decision
4. Reality exception
5. Criminal Law "What Enemy?
6. Of the Royal Emergency
Democratic
In a sense, the attacks on September 11, 2001 in New York City are comparable to the fall of the Berlin Wall, in particular for the United States. In 1989 America was able to celebrate the fall of Russian socialism, defined then as a "strategic enemy" of democracy. In 2001, the 'enemy' seems to reappear, this time in the form of terrorism, associated with the current U.S. administration to what he calls the "fundamentalist" Islamic.
The reappearance of the "enemy" political seems to present the problem of the "exception" an issue say something forgotten in the political and constitutional theory. This has been duly noted by Eduardo Hernando Nieto, recent articles [1] . Professor of Catholic thought that the "war on terror" declared by the second Bush administration (son) could make meritorious, in the current situation, a return to political decisiveness Schmittian, or re-discussion of notions such as Constitutional Emergency (Watkins 1939) 'constitutional dictatorship' (Clinton Rossiter 1948), in connection with the so-called "enemy criminal law 'suggested in the eighties by Günter Jakobs. Not that
EHNieto considers that the actions taken by the U.S. government to properly apply the use of these notions [2] , but his article reveal a certain preference for the idea of \u200b\u200bthe exception itself. Like Schmitt, the teacher suggests that liberal legal discourse does not have an answer to the problems of the emergency, and hosts more likely to view "realistic" Schmitt, which says "purports to be even a legal approach ... and any point of view it is to implement a model alone making "(Hernando Nieto 2007).
return later to examine whether the thesis "realistic" followed in time by politicians like Hans Morgentau or Henry Kissinger, and inherited by scholars as Leo Strauss and Samuel Huntington, can be considered legal. Let us note now that, in the line of reasoning exposes Nieto - a line on the other hand, the professor has warned himself as "dangerous" [3] - the so-called 'liberal democracy', at the time the favorite system in most states of the world, is centrally questioned. Liberal democracy in our case with an important social definition fails to offer a satisfactory answer to the demands of stability and security of States. This is, arguably, basic objection to the existing democracies from the conservative side.
The conservative critique is not, of course, the only suffer democracies. There are other questions that have even more attractive in developed capitalist countries. Including those originating in the Habermasian line of thought or ideas of Rawls, in favor of a deliberative democracy in which they work, with different nuances Cohen (1989), Gutmann and Thompson (1996), Benhabib (1996), Dryzek 2000), among numerous other authors. They are also unique, and perhaps more appropriate for our countries, criticism of the feminist movements (IMYoung 1990, A. Philips 1993), communitarians (Sandel 1984), republican (McIntiye 1987), Marxists (McPherson 1973), and in particular the critique of environmental political theory which employs several authors (Gorz 1980, Bookchin 1982, Eckersley 1992, Dryzek and Schlosberg 1998).
The reason to pay attention in this article to conservative critics - in dialogue with some ideas of Professor EHNieto around the themes of uniqueness and the "enemy criminal law" - lies in the relative attractiveness of these positions are among political and intellectual elites of American society, whose influence in our countries can not be ignored.
1. Thinking
Conservative Conservatism as a political philosophy is not in itself objectionable. At least it depends on what you want to keep. Reasonable conservatives may think, for example, which is more appropriate to maintain the lifestyle of living in the traditional, because unless the environment deteriorates, rather than embark on community projects in exchange for its own unmanageable consequences in ecological terms [4] . In this sense, a conservative approach is not eo ipso discredited, except for privileging consequences, or lack of impartiality ethics, which might entail. The latter is what the conservative critique of liberal democracy can be credited. His view is displayed radically biased, essentially making it vulnerable to rational criticism, as discussed in what follows.
The fear of conservative attitudes to the democratic gains is as old as democracy itself. It could refer to Plato and even Aristotle, who, judging from the translations of their texts, were suspicious of democracy because it favored the chaos, or understood as a degenerate form of government. Later, during the revolutionary times classical modern period, in North America and France, leading conservatives like de Maistre and Burke deprecated of democracy, considering the Government people do not fit, or involve the possibility of so-called 'dictatorship of the majority' (Tocqueville 1835-1840). More recently
democracy, the Greek way, was declared virtually impossible for thinkers proclaimed 'realists', who the government described as an elite (Mosca 1896, Michels 1927) and the regular mechanism to choose between candidates specialize in making politics (Schumpeter 1942). Even before Schumpeter, Weber (1922) did not fail to notice the problems of bureaucracy which accompanied democracy, advocating a "presidential Caesarism" before the "Caesarism charismatic" Schmitt. Dahl for his part in the Fifties (1956), came to believe that democracy could not be more than a number of minority government, threatened at times by the crowd.
A fact is that actually existing democracies are not far from the descriptions offered by Weber, Schumpeter and Dahl. They are a marked expression exacerbated representativism policy has placed in the hands of a 'political class' minority. Against this model of democracy, described in the Anglo-European culture as 'liberal democracy', away from a Hellenic-style democracy, is that conservative thought directs their spears. But his criticism is directed against the democratic foundations of their inauthenticity, but against the 'instability', 'indecisive', 'insecurity' and 'unpredictability' that this would generate. Your question runs roughly in the same direction of Plato and Aristotle, only criticized the democratic model is not the oldest but modern. The major concern of conservatives is the 'lawlessness' of democracy, an issue that is amplified in the latest authoritative jargon of the theorists of the White House.
Conservative thought has not had much appeal regularly at the academy, but he was gone. Instead, their presence in policy areas has generally been more noticeable. For example, in the seventies in a popular report to the Commission called Tricontinental comprised of "prominent citizens" (read politicians and influential businessmen) in Western Europe, Japan and North America, three authors admittedly conservative, Michel Crozier, Samuel Huntington and Joji Watanuki [5] , characterized as the biggest problems of democratic governments, the "anomie" and "dysfunctional" democracies, the excess of expectations and mobilization of the masses that "overload" the governments and the "splitting" interest. All this would reduce the potential for action by States and would risk the "governance."
As few times, the conclusions of these authors were not directly to the shelves, but have provided guidance in the following years, the internal and external policies especially during the Reagan and Bush (father). Since then, the neo-conservative thinking is officially installed in the White House sub-consolidated with subsequent administrations of Bush (son), then Clinton. Neo-conservatives have become notorious to occupy the spaces of influence in American politics, the most influential, Irving and William Kristol, Abraham Shulsky, David Cheney, Donald Rumsfeld, Paul Wolfowitz. They linked the hardening of U.S. policy on issues such as ratification of the Kyoto Protocol, the anti-immigrant policy, the war on terror, the occupation of Iraq and Afghanistan, etc. The sectarianism of American policy in these and other issues has been so pronounced, against the claims of most nations, that each day more critical that characterize the American attitude as imperial itself [6] .
The ideas of two European political philosophers have been particularly useful in the re-development of speech (neo) conservative: Carl Schmitt and Leo Strauss [7] . The second really a follower of the ideas of the first since his student years in Germany, author of Notes to The Concept of the Political, as one interested in reviving the Hobbesian state theory by placing in the center of "obedience" to power [8] . A majority of authors agree that the ideas Strauss practices haunt the White House since the days of Reagan, although some authors discuss the weight of such influence [9] .
Schmitt's critique is directed against the democratic liberalism, because it denies "political" but failed to remove politics from the face of land [10] . "The political" would be an inescapable dimension, pre-state, therefore it is to advocate for their recovery. But the 'political' becomes a category not defined "full" by Schmitt [11] . Indeed, in Schmitt's language is presented as a category of the will, rather than of reasoning, rather as something esoteric. Some might see it as an invitation to the 'struggle' [12] Permanent between 'friends' and 'enemies', or recovery of the principle of obedience consecrated by the Leviathan: Protego ergo forced. Or Maybe it's just the foundation to restore the fear as a source of 'politics'. On this latter Strauss wrote "... the fear of death, fear of death by violence, is [to Hobbes] the source of all rights, the primary basis of natural rights" [13] . Both Strauss, like Schmitt, there is a common primordial interest in visiting a 'realism' of Hobbes, like that of Macchiavello, influences that are pivotal in the development of the political discourse of both authors. Schmitt
appeals to the conservative view because it challenges the uncertainty that parliamentary occasionally generated. Criticizes the loss of identity politics, in terms of a secular state that has lost any religious organization, and the possible reduction of politics to a formal technology [14] . Schmitt liberal democracy equates with constitutional rules apparently abstract and formal procedures to manage the right, in the manner of Kelsen against whom he directed several of their attacks. Calls upon the decision, except when legal, that in his opinion is the foundation of the right. In support of this alleged find reasons in his Political Theology (1934).
Strauss, meanwhile, emphasizes the moment of loss of substantivity policy that under liberalism would have been installed. One of the major concerns of his work is to rescue the morality of politics in the footsteps of the Platonic heritage. However, would not be, strictly speaking, the search for objective morality but one that should be understood in terms of power. "In other words, those who are in power define what is right and good as they see appropriate" [15] .
Clearly, both ways, the discourse of political philosophy is inclined to favor the conditions for the unrestricted exercise of power, personified in the ruler, to the detriment of the right conditions normally associated with the rules constitutional democracies. From this point of view, although both can be thought of as a kind of political theory, it is arguable that can be taken as legal theories. We return on this in what follows.
2. Schmitt Policy
Since Roman Catholicism and Political Form (1923), Schmitt develops the thesis of Hobesiana roots, which will then cause of the Concept of the Political (1927), that policy is the development of meaning through the distinction of 'friends' and 'enemies'. According to McCormick, Schmitt takes too literally the claim that politics Weber involves subjective personal choice between God and the Devil " [16] .
is possible that the context of Schmitt, in the Europe of the 30's, had the political sense to imagine how hobesiano natural state, as the struggle between 'good' and 'evil'. However, a policy context variable is insufficient to establish a definition of politics. The story does not rule out scenarios where policy descriptive enough condition to be practiced, not as good-evil opposition, but as the peaceful resistance (Gandhi), Civil Disobedience (Luther King), the acceptance of difference (Philips, Benhabib) , or dialogue (UN) [17] .
Moreover, even assuming that the policy was in all cases the confrontation between the 'good' and 'evil' - as in biblical times-hence not immediately follows a practical philosophy aimed at annihilating the enemy thoughtless , or exclusive use of the methods of war, or to a regular policy based on the exception. The Habermasian deliberation time, even in this perspective, would not be deleted by itself. Always be necessary to resort to some kind of argument even to decide, reasonably, if anything is' \u200b\u200bgood or 'bad', or, of course, the type of sanction that the "evil" might warrant. Unless you assume that whoever takes power from and discretion is authorized to decide for itself when and who put the label of "enemies."
This issue reveals one of the key epistemological shortcomings - or dogmatic assumptions, read from the ideological perspective of Schmitt in the exhibition. Decisions would be to contain the evil, but should we assume that good and evil are epistemologically defined in advance, perhaps in some secret place of 'political theology'? If not, who is the one authorized to define 'good' and 'evil'? [18] On the other hand, on what basis can decide who is in power has the right to use arms and to defend what interests? Schmitt's response would likely be that such attributes are given by definition in the hands of the dictator, because dictator qui est Dictate. And Sovereign "... is he who decides on the exception " [19] . The sovereign "decide if there is an extreme emergency and what should be done to eliminate" [20] .
Strauss on the other hand, perhaps I would argue which are allowed to pursue those evil "side of God", as in the famous Peloponnesian War as described by Tucydides, where conservative thought seem to find the reason to celebrate the triumph of the Gods of Sparta on democracy Athens [21] .
"According to the formulation of Schmitt-McCormick says that in all cases of emergency, it would seem necessary to resort to a unitary institution that has a monopoly in the making, so that no confusion or conflict arises" [22] Characteristic of this argument is his work The guardian of the Constitution (1931) in which his defense charismatic leadership all fully defined. Sovereignty would be embodied in the Reischspräsident, from which the way for the defense of the Third Reich is paved. In 1934 Schmitt authored the article "The Führer protects the law" which is more explicit in condemning the paramilitary threat of Hitler in mourning for the killing of civilians during the "Night of Long Knives" (June 30 , 1934) [23] . EH
Nieto understands that Schmitt's decision to accede to the Führer is proof of that conviction Hobbesian: Submission "in exchange for security." However, Bendersky version is that devotion to the Hitler regime Schmitt remained despite being shifted from the condition of main lawyer in the Reich, even when his life was threatened by circumstantial servers regime [24] .
McCormick has also been noted that adherence to the "sovereignty of the dictator," is an exit point for Schmitt's position steady in an early work of 1921, Die Diktatur, where Schmitt refers to the Roman dictatorship as an institution emergency to preserve the Republic in times of acute crisis [25] . They also criticized the use of technology as a means dictatorship and the perpetuation of it by the emerging Russian communism [26] . However, in Political Theology dictatorship becomes a permanent exemption. Schmitt introduces the idea of \u200b\u200bdictatorship 'sovereign', which is postulated as the power to suspend and change the political order in perpetuity on behalf of an unreachable "people" and "eschatological notion of history" [27] .
This step also means that Schmitt takes a stand romantic, existentialist or 'aesthetic' of the policy before, in Roman Catholicism, had criticized. The will is placed in the center of politics. Schmitt waiver to the separation of powers because it paralyzes the dark state and who is the sovereign [28] . At this point, has written McCormick, Schmitt made "in the language of the Antichrist myth nietzscheano quasi-European elite forge meaning through cultural-political struggle against Soviet Russia" [29] .
Schmitt is surely right to maintain that the State can not claim the exemption does not state, but only under certain course, as in his theological, and therefore immune to criticism of the men can be assumed that is an exception in its purity of "sovereign dictatorship" exempt from any democratic control or any rational control. Consequently, what you get, strictly speaking, the moving position Schmitt is not a theory of the exception but a pure policy decisions. The exception does not have the possibility of a rational control. This happens because the policy does not state schmittian any values, but the approach of the ruler, and thus confirms itself as the expression of political interests, power hierarchies and conditions established in the State [30] . Ultimately leads to the authoritative assertion of the will as that came with the Third Reich, possibly the kind of "exceptional state" I would have to be taken as the model of sovereignty that his theory was interested in defending. There is a concern
'realistic' in Schmitt, but his theory can not avoid succumbing to their ideological beliefs that reveal not only the regulatory role assigned to the pure will, but at various theoretical mutations are discovered in his work. The study by John McCormick, who have come here quoting, is relevant in that direction. Unlike apologetic readings (a few for that matter) and numerous critical readings, McCormick Schmitt revises the very terms of his theory, and finds its way to critical of modern technology and romanticism, a technology lawyer and existentialism dictatorial leader. Later, an enemy of pluralism tries to pass as a sort of liberal interested in defending the individual, reciprocity and due process, after the war [31] .
This does not mean, of course that the model advocated by Schmitt policy is completely lacking. Rather, it is possible that such a policy is the common denominator in several proclaimed democracies. However, this does not pay enough to conquer "the concept of politics" or to assume as a postulate desirable policy.
Schmitt, and Strauss, deal with problems undoubtedly relevant policy, including the dissatisfactions of parliamentary democracy, with the possibility that the conflict can not be eliminated through the mediation of representatives. But recognition of the conflict and the possibility of evil and the limitations of liberal democracy, does not follow that the sovereignty should yield to the hands of an authority figure in charge of deciding for themselves what good and bad, and meet the policy direction of their own. From this point of view, we can try to believe that both Schmitt and Strauss, were not interested in war, but the order [32] , but the technology proposed policy implies the possibility of war and the continuing bloodshed. The history of Germany in the 30's and North America are the days that may serve as evidence.
3. Exception and Decision
The manner in which Schmitt links the exception to the theological miracle [33] is certainly illuminating. However, we could agree on which to base a theory than through biblical metaphors can be an endless exercise. The main difficulty, of course, is that it is epistemologically biblical possibilities of all: knowledge and ignorance, good and evil, punishment and forgiveness, heroism and sacrifice, slavery and freedom, war and peace. It will therefore virtually impossible to find a justification for something stable, regardless of a conviction of faith that can not be challenged in life, but is unstable for a theoretical basis.
However, it is the only way you can be based a theory of the exception. Contrary to Schmitt, there is no reason to believe that the exception is inconsistent with liberal democratic politics, even within the constitutional rules that Schmitt could be considered 'formal technologies. " McCormick points out that criticism of Locke Schmitt liberalism is illegitimate, as Constitutionalism in the British author is a concept related to the act on or against the law in times of unpredictable occurrences [34] . It is true that the definition of the three branches of government, Montesquieu, appears to be driven on the intention to de-discretion policy, an aspiration shared by certain versions of legal positivism may seem to believe that the exclusion of the will of legal decisions court at the time. However, the evolution of liberal constitutionalism and social as well as more reasonable positivism prove that liberal democratic currents are not inconsistent, per se, with the development of a theory and practice of the exception (which does not mean, of course, that the solutions offered are in all cases the most desirable).
From one point of view, we can understand even that democratic liberalism is the exception in the center as the main problem to be solved to achieve political stability, given that the 'exception' has been precisely the source of increased political uncertainty particularly during the nineteenth and twentieth centuries. In this sense we may think that your "technology" is aimed precisely to handle the exception, although it can not eliminate it.
is known that Kelsen refers to a similar problem about the indeterminacy judicial standards in the dynamic theory of norms (Kelsen 1960). Kelsen does not eliminate a possible point of judicial discretion in interpreting legal rules, most still believe that uncertainty limits of the interpreter is free to decide the case solution [35] . In more recent times, the flow of rational argument, responding to the debate between creation and legal interpretation, nor propose to eliminate the time of the decision of the judicial legal rationality (not to mention the legislative rationality in which, of course, discretion is even higher). Its central demand is, going beyond the explanations of Kelsen and Hart, that every decision-even if they can be proven as the correct answer for that matter-should be supported in appropriate grounds for justification (Atienza 1992).
In general, the idea that democratic liberalism obscures the decision problem can perhaps be true for a negative thought liberalism, which asks the state of indecision the maximum possible (Nozick 1974), but can not be said the same of liberalism of John Locke or S. Mill and TH Green, for example. Especially in the theories of the latter two authors gives the State an increase of decisions that are at the basis of so-called State Welfare (Welfare State).
is true that Kelsen's theory, while in-substance law and it does rest on a purely hypothetical rule-judgmental relativism joined the distinguished jurist who finally could not escape, can generate a distressing effect because of the difficulty of find a reliable substantive basis to which to appeal especially in situations of emergency or "hard cases", as she said Hart. However, the effect of Kelsen's theory, in these circumstances would be to place the law as a tool of any decision [36] , and therefore should not have been the target of attacks by Schmitt. Seem rather as shown by McCormick, Schmitt's critique of positivist abstract technicality, which basically holds the possibility of an abstract voluntarism [37] is just a strategy to make way for a new form of domination at that time focused on non-Bolshevik charismatic leader. [38]
Moreover, exceptionalism, there is in most constitutional democracies, under features close to a model of dictatorship 'curator', in the Roman sense, within the Constitution and limited by the rights. With few exceptions, the Constitutions and Social Liberals, there are institutions authorized emergency ex ante, as figures from the state of emergency, delegated legislation, decrees of urgency, declare war, civil disobedience and insurgency right .. Are also regulated under ex post theories to support the constitutional validity of the "decree-laws' from de facto regimes or mechanisms of political responsibility (Accountability).
In this sense it is valid to conclude with McCormick that Schmitt's critique of the exception "does not reveal anything, except perhaps that the liberals of the eighteenth and nineteenth centuries were politically naive about constitutional emergency, and perhaps that constitutions and their authors are not omniscient " [39] . Nor is the problem of the exception can be understood as superior to the Constitution, something that was already observed by Kelsen, in his response to Schmitt, to reduce the Constitution to the emergency powers of Article 48 of the Weimar Constitution.
4. reality exception
One can not but agree with the claim "unrealistic" to govern, manage and therefore the right, taking into account the actual circumstances. But for the conservative realism the only existing reality seems to be the Hobbesian evil man, and the only policy 'realist' one that favors the authoritarian will. The question lies, of course, in the various realities that must be taken into account.
conservative realism appeals to the formulas of exception, in modern times, to deal with the threat of terrorism. But beyond the actual or contingent dimensions of terrorism, this is not, of course the only 'reality' that threatens the world's societies, nor the only one that democracies are obliged to provide an effective response. Any realistic response rate, possibly unique, it should be, in other cases, the problems of rapid rise of oil prices, food security seriously threatened by the depletion oil, migrants expelled from northern countries, displaced by war, apocalyptic gravity of climate change, accelerated extinction of species, the occupation of Guantanamo or the actual events of the occupation of Iraq. They are all current emergency
global society of the exceptional problems arise, then, not only for democracies like the North American who feels threatened by alleged foreign religious fundamentalism, but also for the global community, and of course also for countries where democracies fail to give satisfactory answers to all problems related, in addition to hunger, poverty, domestic violence or natural resource depletion.
We can say then that when the conservative critique of democracy is unaware of the problems of global injustice and impoverished societies, and states a decision in favor of the war policies of a State, at that point leaves to be neutral. His conservatism is no longer innocent and takes on a distinctly sectarian tinge, if not reactionary, aimed at increasing the attributes of raw power, indeed the most powerful state in the world. The ideas of rights of individuals and communities are on hold, while the sovereignty and rights of smaller states is drastically reduced. Criticism neo-conservative democracy aims not then the deepening of democracy, but its radical removal.
On the other hand, the point where the theory of exception becomes the instrument of legitimization of arbitrary political power ceases to be impartial and therefore no longer a legal theory. A reasonable need to promote conditions of fair to all members of the political community, failing to stop being such.
5. Criminal Law "What Enemy?
reflections of Professor EH Nieto suggest a common line of reasoning would lead from the idea of \u200b\u200b'theological miracle' through the concepts of 'decision', 'exception', 'constitutional dictatorship' and 'enemy criminal law "to which refers in its Article. It is true that these terms refer to similar problems that might be thought in the political and legal philosophy, but perhaps the passage from one to another concept is not inevitable. For example, before and suggest that switching from "biblical miracle 'to the' exception 'can have a metaphorical, but not a sound basis to justify the exception.
On the other hand, the decision problem is presented at the political level, but also - as we saw, at the judicial level, constitutional and legislative, and in these three cases it is unthinkable that a theory of decision - in a different sense to that of Schmitt-is necessarily at odds with liberal-democratic model, or even positivist state. The same applies to the concept of "exception" that can be worked into the framework of liberal democratic theory without being urged to find a theory that the right to stop and give way to sheer willpower. Instead the concept of 'constitutional dictatorship', could be self-contradictory to the extent that, by definition, a Constitution is some kind of control of power (Aragon 1987), and therefore the impossibility of a 'dictatorship' in its own right. Any exceptions in the framework of a Constitution and democratic theory, anyway need to be subject to any prior or subsequent control.
In any case, in the context of a theory - and not a purely practical 'exception' can only be admissible against the primacy of regularity, order, or a norm, because if there is no order there would be no "exception." The order would also be necessarily some kind of democratic order, because if the order of reference was the permanent dictatorship, the exception be impossible, could not be permitted under penalty of ceasing to be such. From there, there's no way to move the concept of 'enemy criminal law. " The first concept involves one exception to certain rules of the current legislation, the latter seems to imply a questioning of the very idea of \u200b\u200blaw as universal order, and not so much an 'exception' as one 'order', under conditions of a society built for 'friends', with the exception of the 'enemies'.
In our view this is to be the inevitable effect of the radical distinction between friend or foe. Schmitt policy needs ontologize this distinction, essentialize good and evil, to justify the step after the dictatorship and the application of different rules for those who are nominated as enemies of the state. In turn an "enemy criminal law" needs to assume that the enemy is a predefined external social group, and therefore unfit to be tried under the rules of criminal law universal. This will reintroduce the suspect and the danger as categories of prisoners, and left open the possibility of not recognizing the enemy and have rights "political elite class that promotes the practice of torture in secret prisons abroad and suspension constitutional rights on the inside " [40] . The only justification for such a right should be the Straussian argument that companies are on the side of God can not survive unless they defend themselves against internal enemies.
Schmitt, of course, is not a criterion for distinguishing 'friend-enemy', although it assumes that a distinction is inevitable in politics, in this regard, as would Pasquino, Schmitt's enemy is ontological, we must assume that exists, but it is epistemological, because there is no way of knowing the extent that, as Hobbes assumed, each who owns their fears, every one who defines his enemy, and that leads to war of all [41] . That justifies the submission to the ruler who has since become the master of political will. Should therefore be understood that those who have the right to make a difference are inevitably friend-enemy of the state rulers.
This could be viewed as extremely narcissistic approach, based on the denial of the possibilities of other games meet labeling establishing their own difference. If the events of the twin towers authorized to establish an "enemy criminal law", how to react if attacked countries such as Afghanistan or Iraq? Would the same law countries like North Korea, Cuba, China or other countries with different systems, to establish their own "Enemy criminal law? How is it possible, under these conditions, rational communication among global societies? Who would be the 'real enemy' in these conditions? In this scenario it is evident that we would not have even the Hobbesian world that originally aspired to Schmitt and Strauss, which states could provide some peace and security to its citizens in return for their obedience, but rather the opposite: a state of permanent war against all enemies declared by each State. Or for those who are willing to extend political criminalization games inspired by the way United States.
Explanations of Jakobs not escape this criticism. Jakobs introduces the notion of 'criminal law of the enemy "and in the eighties initially to distinguish, in exceptional cases, the' citizen's criminal law 'and the' enemies'. But the enemy criminal law would consist of "those types of crimes punishable acts anticipate that only have the status of preparations for future events" [42] . Ie it would be to increase the preventive action of the penal system, but the right of "enemy" would be from the types already included in the penal code, especially in those crimes usually called dangerous. Therefore, it would be two trends that overlap in one legal context [43] . However, in later works Jakobs seems to think that the separation of two rights is possible to prevent intermingling, which allegedly would give an advantage to the state to declare the enemy [44] .
Unlike democratic criminal law is primarily a right to act (although marginally copyright, especially in the time of the trial of guilt), the right of the enemy would be essentially a copyright from the configuration of the type, aimed at preventive removal from sources considered dangerous. Also would be addressed not so much against individuals, but mainly against groups defined as dangerous. It is clear then that we have a 'right' to lose garantistas basic qualities in the treatment of individuals. The notion of 'criminal law of the enemy', whether intended as an exclusive right of security of ordinary criminal law, can not prove the condition of impartiality and respect for legal equality. Immediately opens the possibility that states can arbitrarily manipulate the law in accordance with the qualification that these policies do their 'enemies'. Walk then become a metaphor for concealing the exercise of raw power. It is inconceivable that Jakobs is unwilling to use the concept proposed in such an abrupt and arbitrary, outside of the legal grounds and the language system which has built the concept of law.
On the other hand, the proposed Jakobs reduces the possibilities to distinguish between criminal and political enemy. If the "enemy criminal law" is applied against "enemies" that have not caused any damage at the time - outside of cases of attempt, preparatory acts or omission of duties, from already considered in the codes, the only possibility justification is to argue that it has decided to reduce its rights as a result of the attitudes, thoughts, beliefs or ideologies they profess. But this of course is not a justification. The criminal law of the enemy would then become dangerously instrumental to the will of labeling of political, economic and military, with the high possibility of leading liberal democracies to repressive practices similar to those known in the first half of last century. Surely the starting point of Nazi persecution was the definition of 'enemies' of state and the Stalinist purges were deplorable at its base the definition of "enemies" of Soviet power [45] .
6. Of real democratic emergency
If concerns Schmitt moved to the current context might be convinced with better arguments for the impertinence to come to the rescue of his theories. The current problem seems to be rather the reverse: the abuse of emergency powers. What happens, according to McCormick, also happened to Schmitt, who headed against the 'abstract formalism' of the rules, at the same time the law was overshadowed by authoritarianism. The same may be happening now. Is trying to revive the theories of authoritarianism at the same time that authoritarianism is endemic in several fronts of global democracy. Think Afghanistan, Iraq, anti-immigrant policies, threats against Iran and North Korea, Guantanamo prisons. Indeed, there seems no need for an authoritative theory of sovereignty under such conditions.
Regardless of the theory decisions can host or not, the conservative critique seems to be claiming an even greater decisiveness for a state that actually uses the exemption permanent, particularly in international politics, and it has for repeated cases history. Is known about the U.S. refusal to sign or ratify important international agreements like the Kyoto Protocol, the Sea Convention, the Convention on Biological Diversity, etc.. Not to mention of the numerous UN resolutions that followed, and of course the decisions affecting the open or covert, practicing on their own, over the years [46] .
From the perspective of governments in our countries, the actions of emergency are also scarce. It would seem ironic to insist on policy exception when the country has just emerged from another exception such as the infamous dictatorial government of Fujimori, for whom the state constitution did not mean any 'formal' constraint, and of course the system of rights. In a sense you could say, even democratic governments current drive the country by the method of the 'exception', if one thinks, for example in the frequent abdication of its duty of parliament to legislate under the guise of the delegation of legislative powers for the executive (which have made extensive use successive governments of Belaunde, Alan Garcia, Fujimori and García again now.) States of emergency were often become permanent in important areas of the country, or is declared illegal ordinary social protests, or authorizing the entry of foreign troops frequently or approves military intervention in cases that are not precisely those considered in the Constitution and laws.
then arises Schmittian doubt if the speech is still necessary and needs to be revived, or is that in practice there is decisiveness and consumes too much contemporary representative democracies. The fundamental question is whether the most pressing problem for democracies the world is to promote a theory even more discretionary than those included in their constitutions, or on the contrary what is needed are mechanisms for more effective control is to prevent arbitrary actions of governments and so-called "political class." Or, to motivate them to act effectively address urgent problems such as severe as those of extreme poverty or the apocalyptic threat of global warming global, for example.
In response to the September 11 attacks, and under theories like those of Schmitt and Strauss, North America claims the broader emergency powers to combat terrorism in the world. There are however, crucial facts that need to be taken into account before making a quick approval to this demand. Various evidence is accumulating - in particular, many unofficial videos show the towers - as well as Building 7 no-hit by any plane underwent a process of co-controlled internal demolition, why it collapsed in a matter of seconds. About this nor the Bush administration or the Investigation Committee formed to the case, coherent explanations yet reached [47] ? Should we really believe that the problem of modern democracies is the 'exception', or rather the effective democratic control of the behavior of governments?
[1] HH Nieto, Law and Emergency. Revista law. Edition 308. XCII year. Bar Arequipa. December 2007. Criminal law also Enemy. Http://eduardohernandonieto.blogspot.com/2008/01/derecho-penal-del-enemigo.html (24/08/2008)
[2] In the end, his advice is "not appropriate to insert management actions Bush within the margin of the "emergency law" proposed by Schmitt, Rossiter and Jakobs,
[3] See, EH Nieto. Thinking Dangerously: The Reactionary Thought and the Dilemmas of Deliberative Democracy. Editorial Fund of the Catholic University of Peru. Lima. 200
[4] conservatism may also have to have another reasonable size, in contrast to the defense of a purely procedural democracy: the need to assert in any substance to guide the ends of life, but often are prone to think about this substance so dogmatic, or to require its imposition by dictatorial methods.
[5] M. Crozier, S.P Huntington, J. Watanuki. 1975. The Crisis of Democracy. Report on Governavility of Democracies. New York University Press.
[6] Véase, Bacevich A.J. American Empire: The Realities and Consequences of U.S. Diplomacy, Harvard University Press, 2002. Hall Tony y Hall Anthony, The American Empire and the Fourth World: The Bowl With One Spoon, McGill-Queen's University Press,2003. Howard Zinn, Paul Buhle, Mike Konopacki. A People's History of American Empire. Metropolitan Books, 2008. Perkins. John, The Secret History of the American Empire, First Plume Printing, 2008. Griffin D.R and Scott Peter Dale, 9/11 and American Empire (Volume I) Intellectuals Speak Out. Interlink Publishing. Ferguson, N. 2005, Colossus: The Rise and Fall of the American Empire, Penguin Books, London, Ferguson, N. 2006.
[7] EH Nieto is probably best known in both national works of Carl Schmit and Leo Strauss. Our learning of course does not deal. Instead try to take the criticism of conservative thought with some ideas of history and political theory.
[8] John McCormick, Carl Schmitt's Critique of Liberalism. Against Politics as Technology. Cambridge University Press. 1997. p. 20.
[9] For example, Zucker Michael and Catherine. 2006. The Truth About Leo Strauss. The University of Chicago Press.
[10] Strauss, quoted by Schmitt op. Cit. P. 84.
[11] Strauss, quoted by Schmitt op. Cit. pp. 85 to 87.
[12] J. Rossi Dotti and J. Pinto, Carl Schmitt, The Time and Thought. Eudeba. Argentina 2002: 66
[13] Strauss, cited by McCormick, op. Cit, p.
259 [14] See MacCormick, op. Cit.
[15] See Shadia Drury. Leo Strauss and the American Imperial Project, in International Political Theory. Volume 35 Number 1 February 2007 62-67.
[16] McCormick op. Cit,
[17] Some authors may find some similarity between the definition of Schmitt and ideas of Marx, who described politics as "class struggle." But Marx is aware of being located in a historical policy, subject to historical conditions, far from understanding this as a struggle between the eternal and pigeonholed 'good' and 'evil'. His definition of politics is historic, far from being theological course.
[18] Perhaps, as Christ would, who is it who is authorized to cast the first stone?
[19] C. Schmitt. Political Theology: Four Chapters on The Concept of Sovereignity. Translated by George Schwab. Camdrige Massachusetts: MIT Press. 1985. P. 5
[20] Idem. p. 7
[21] Drury loc. Cit. P. 65. Or as in the famous warning from Bush to choose between 'America' or 'axis of evil "after the outcome of the twin towers.
[22] McCormick op. Cit. P.
137 [23] McCormick 1997: 266-267
[24] See Joseph Bendersky. Carl Schmitt, Theorist for the Reich. Princeton University Press, 1983. Pp 263-264.
[25] McCormick op. Cit. P.
121 [26] This meaning matches him in that moment, with that of Machiavelli, who in some places means that dictatorship is not tyranny or domination absolute but a means to protect the republican constitution
[27] McCormick op. Cit. P.
133 [28] McCormick, op. Cit., P. 137.
[29] Ibid p. 117.
[30] Marx The difference can not be underestimated. Marx's policy is an expression of economic interests but not in a conceptual sense, but in the context of bourgeois society. Moreover, under this concept, Marx moves in a plane essentially descriptive, unlike Schmitt whose orientation is essentially standard.
[31] See C. Schmitt. Plight of European Jurisprudence, Lecture. 1944.
[32] Fernández Vega, Dotti and Pinto. Op.cit. p. 43.
[33] See . C. Schmitt. Political Theology. Four Chapters on the Concept of Sovereignty. Translated by George Schwab. Cambridge. [1985] 1934. P. 37.
[34] McCormick, op cit, p. 149.
[35] For this reason some have also objected to Kelsen's 'decisions', although in his case of a decision would clearly restricted in the context of the law. Otherwise the "decisions" of Kelsen is strongly counterbalanced by his defense of freedom and democracy, as well as its belief in the inviolable position that the Constitution has as supreme law.
[36] positivism (Kelsen not only, but to Hart) split with a theory of constitutional democracy, and a substantive theory of law, can easily become an instrument making, particularly of the dictators rather than of democracies, is something that can be checked frequently in Latin American history.
[37] "legal positivism, through its famous separation of law and rule, is competent to accept whatever is legislated on the basis of elections is necessarily correct." McCormick, op. Cit. Pp 216-217.
[38] McCormick op. Cit. P. 207.
[39] McCormick, op. Cit, p.153
[40] S. Drury, op. Cit. P. 65.
[41] C. Pasquale, cited by McCormick, op. Cit. p. 254.
[42] C. Víquez. Criminal Law of the Enemy, "A Chimera dogmatic or Future-Oriented Model?, Criminal Policy, No. 3, 2007, p. 2.
[43] Idem. p. 5
[44] G. In G. Jakobs Jakobs and Manuel Cancio Meliá, Criminal Law Handbook of the Enemy, Madrid, Civitas, 2003, p. 56.
[45] is interesting to note, moreover, that when systems "decisionists" - as those which emerged of socialist revolutions, sought to assert itself on the basis of a right of "class", "temporary dictatorship, or political exception against his political enemies, the capitalist democracies these arguments directed against the universality of human rights, rule of law, the defense of freedom, and others. In contrast, when Western democracies are now besieged by alleged external enemies, calling for the possibility of a political definition of the enemy and a special punitive law directed against them. Schmitt himself defending the decisions of the Reich but fought the Soviet decision.
[46] Some of the interventions arbitrary USA that could be cited are: China (1945), Greece (1947), Philippines (1945), South Korea (1945), Albania (1949) Iran (1953), Guatemala (1953), Indonesia (1957), Viet Nam (1950), Cambodia (1955), Congo / Zaire (1960), Dominican Republic (1963), Indonesia (1965), Chile (1973), Nicaragua (1978), Granada (1979), Libya (1989), Panama ( 1989), Iraq (1990), Afghanistan (1979), Haiti (1987), Yugoslavia (1999), Iraq (2003), among the most visible. In his article cited, Eduardo Hernando Nieto also refers, for example "a president like Franklin D. Roosevelt was just ... a la práctica el modelo de la excepción”.
[47] En contraste con la teoría oficial de la conspiración externa sobre los atentados, puede verse, David Ray Griffin. 2008. New Pearl Harbor Revisited. Interlink Publishing. David Ray Griffin .9/11 Commission Report: missions and Distortions. A Critique of the Kean-Zelikow Report. Olive Branch Press. , Sut Jhally and Jeremy Earp. Hijacking Catastrophe 9/11, Fear and the Selling of American Empire. Olive Branch Press. Philip Shenon. The Commission: The Uncensored History of the 9/11 Investigation. 2008. Hachete Book USA.
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