Emergency
紧急
On the night the flood came, judgment could not wait for the channels to run their course. The mayor of Apple City declared a state of emergency: a curfew at night, a high school requisitioned as a shelter, residents outside the levee ordered to evacuate by a deadline. Two weeks later the water went down; three months later the school was still requisitioned, and the emergency order was being renewed month by month. This paper asks what holds as before in an emergency, what may go faster, and how what was taken is returned; and, when something cannot be achieved, how the transition is made and how responsibility is attributed. What holds as before is what this series groups under "holding to": the first and second oughts, basic rights not being violated included; the "not sealing the channels" half of the fourth ought; the channel of being questioned under the fifth ought; the ways of guaranteeing recognition-based rights. This grouping, together with its extension to emergencies, is wider than Institution Theory's own sense, and is undertaken by this series. What may go faster is the speed and order of procedure and a temporary division of labor: review and being questioned beforehand may be moved to afterward, but being questioned is not withdrawn; during an emergency the channel must still be one that can be initiated, and what is moved to afterward is the point at which review and reply take place; for each step that is to be deferred, it must be explained whether the delay would make control over that step come to nothing. The facts on which the line falls can change; the line does not. Emergency powers take the weak form of what Institution Theory laid down for the structures of guarding: a specific reason supports a specific temporary measure; when the reason changes, review is due; continuation needs a present ground, and is not renewed on the strength of its origin; the passing of time and a change of conditions are reasons for review, not a threshold of expiry; if review finds no present ground, the measure is withdrawn and what was occupied is returned; an intention to return it in future does not prove that nothing is sealed off now. An emergency may be determined by a single position; whether the determination holds and when the emergency ends, and the review of confirmation, prolongation and termination, are not monopolized by the party taking the measures; once measures are taken, confirmation and termination must land at the layer of efficacy. Here the paper sets up one contrast from the opposite side, with Schmitt: for him, the party that decides on the exception is the sovereign; this series says that there being no time to wait gives a position a reason to judge first, and gives it no reason to monopolize shutting the door. When something cannot be achieved: admit that it cannot be achieved; do not withdraw or discount the ought; the transition must be explained, and the account is booked separately to the construct and to the individual. Where a transitional act has been verified as crossing the line, the name of transition does not cancel its attribution; this neither calls a violation every shortfall in securing nor books the construct's account to one person. The paper ends in conversation with Locke: he calls prerogative the discretion exercised for the public good, without the prescription of the law and sometimes even against it; asked who is to judge whether it is rightly used, he answers that, in the slot he sets up, there is no judge on earth, and the last judgment is left in the people's hands, with an appeal to heaven. What this series wants is a channel that is there beforehand, within reach on earth, and that anyone inside can initiate. The paper has five propositions (G30 to G34), listed together at the end.
Introduction
Paper 4 wrote of levels. Beyond levels there is one more dimension: time.
In the spring of Year 5, the river rose.
That night, the mayor of Apple City declared a state of emergency under the Apple City Emergency Ordinance: a curfew from 10 p.m. to 6 a.m.; Levee Street High School, which belongs to the city Education Department, requisitioned as a shelter; residents outside the levee to evacuate by a deadline. The ordinance says: the emergency order is renewed by the mayor every thirty days; the City Council may terminate it by a two-thirds majority. The power to issue emergency orders was granted to the mayor by the City Council in this ordinance; the City Council may also, through the procedure for making ordinances, amend or repeal this grant.
The shelter has three hundred beds. About five hundred people live outside the levee.
Two weeks later, the water went down. On the vegetable plot by the river that had been requisitioned three years earlier to build the flood levee, that stretch of levee held; the account of that requisition was written in Paper 2 (G11). The curfew was lifted in the fifth week.
By summer, three months on, Levee Street High School was still requisitioned: sixty households in the shelter still had nowhere to go back to. The emergency order was still being renewed month by month. The school's students had moved to a temporary school building on the east side of the city for their classes.
Three things first. Whom it concerns: the residents outside the levee; the students and staff of Levee Street High School; the residents of the whole city (the curfew). Which line: the curfew, the requisition and the evacuation all act on actions that can be limited; the line of basic rights does not change because of the emergency. Baseline: everyday life before the flood.
In an emergency, judgment cannot wait for the channels to run their course. The water is rising, the people outside the levee have to leave that night, the shelter has to open before dawn. What in ordinary times must first be deliberated, reviewed and asked about, there was no time for that night. But which things exactly was there no time for? How long does the judgment the mayor made that night count for? The water has gone down and the emergency order is still there: on what grounds? Three hundred beds for five hundred people: what about those without a bed? If in these days something crosses the line, can the word "emergency" settle the account for it?
Institution Theory handed questions of this kind on. It says: "Whether it can be done, and how to make the transition and attribute responsibility when it cannot, are matters that call for judgment; they are handed to specific theories of institutions, such as the Theory of Government or a theory of the firm." It goes on: "This series grants that in practice an ought may not be achieved, and does not on that account withdraw or discount any of them." (Institution Theory Paper 1, §8) This paper takes up exactly this item.
The answer runs in six steps. §1 says what holds as before in an emergency; §2, what may go faster; §3, how emergency powers are re-examined when the term runs out; §4, who determines that there is an emergency, and there it sets up one contrast from the opposite side, with Schmitt; §5, how the transition is made and responsibility attributed when something cannot be achieved; §6, crossing the line in transition. §7 is a conversation with Locke. On what grounds the emergency measures themselves may compel, and the qualification of the curfew, the requisition and the evacuation each, are checked by Paper 2's proof-task chain (G10, G11), not in this paper; this paper writes only of the temporal side and of what cannot be achieved, and issues no further license for compulsion. The paper has five propositions (G30 to G34), listed together at the end.
Conventions follow the Prequel, §8: interfacing in place, sources in four tiers, examples from the Apple City Case File shared by the whole series; at its end this paper has a separate section in conversation with Locke.
§1 What Holds as Before
On the night the state of emergency was declared, Levee Street changed. Households from outside the levee dragged suitcases toward the high school. The desks and chairs were cleared out of the classrooms, and beds were set up in their place. After 10 p.m., no one could be on the street. In ordinary times, not one of these things would happen overnight.
An emergency changes many things. This section first asks the reverse: what is there that it cannot change?
The first and second oughts. The city's own acts cross no line against anyone inside it: the residents who evacuate, the people asleep in the shelter, the people staying home on curfew nights, all are included. Institution Theory says of this ought that "it does not vary with relational thickness and is not discounted under any condition" (Z9). An emergency is a condition, and the one most easily used to discount it. That basic rights may not be violated lies within this ought; this is not peculiar to government: it is derived from the subject's side, and holds alike against individuals, against constructs and against governments (the Prequel, §5). The shelter is a place for people to live, not a place to shut people in: sealing off a person's exit is crossing the line, and falls under this ought (Institution Theory Paper 2, §1, following Rights Theory P5 F21).
In the shelter, three hundred beds stand side by side. The lines between persons the city must still guard; this is the second ought (Z15). The way of guarding is itself an act of the city: "Guarding itself must be a limit: guarding is an act of the construct and falls under the first ought" (Institution Theory Paper 3, Z19).
The "not sealing the channels" half of the fourth ought. The evacuation limits a person's staying outside the levee; it does not limit whom he goes to, whether to relatives or friends or into the shelter. Whatever rules the shelter sets, they may not stop anyone from moving to relatives or friends, nor cut anyone off from his family. One half of Institution Theory's fourth ought is, "without variation, not sealing the channels of refusing, revising, exiting and changing direction" (Z28).
The channel of being questioned under the fifth ought. The second half of Institution Theory's main line is: "it itself remains open to questioning" (Z8); a matter that has been answered can be closed, but "what cannot be withdrawn is the conditions of being questioned and of explaining" (Institution Theory Paper 1, §8); "structures can change, but the three conditions cannot be withdrawn" (Z37). On curfew nights, at the bedside in the shelter, people must be able to put their questions, and someone must take them up when they do.
The ways of guaranteeing recognition-based rights. The school was requisitioned, but the students' schooling did not stop: they moved to a temporary school building on the east side of the city. An undertaking peculiar to government is guaranteeing the recognition-based rights it has embedded, and the ways of guaranteeing are three: no de-righting; no empty shell; withdrawal or amendment made in public and open to questioning (Paper 3, G19). If schooling is a position already embedded, the school building may be moved, but the position may not be left with nothing but a name; the temporary school building is one way of keeping it in operation as before through the emergency. If in an emergency an embedded position really must be suspended, the suspension itself must also be made in public and be open to questioning.
This series groups these things together under "holding to," in the wider sense of the Prequel, §8. This grouping is wider than Institution Theory's, and is undertaken by this series: in Institution Theory, "holding to" names only the first two oughts.
What this paper has to supply is where the words "do not stop in an emergency" come from. What the upstream says outright is not discounted under any condition is the first ought (Z9). Of the second ought, the upstream says that its trigger does not vary with relational thickness: the Institution Theory Prequel, §7, puts several things into one sentence about relational thickness, "The first and fifth oughts, the 'not sealing the channels' half of the fourth, and the trigger of the second do not vary with it"; and when it comes to guarding that fails to block, Institution Theory Paper 3 says only: "this series grants that there will be times when guarding fails to block, and does not on that account withdraw or discount this ought" (Institution Theory Paper 3, "Where This Paper Stops"). The "without variation" of the fourth ought's not sealing the channels was said, in the original, of relational thickness; what is said of the fifth is that the conditions of being questioned cannot be withdrawn. To extend these things together to the condition of emergency is a step of this series (own undertaking). The ground for the extension lies in Institution Theory's own division: "what is held to is the ought, not a particular structure" (Institution Theory Paper 3, Z22). This sentence of Z22 speaks of guarding the line; to borrow its division between ought and structure for the things grouped here also falls within this own undertaking. What an emergency changes is structure: who decides, what is done first, what is reviewed later. What it cannot change is the ought.
So too with the line. "The line is the boundary between limit and violation, decided by structure, not by motive" (Z9). An emergency does not change the line. But an emergency changes many facts, and the line falls on facts: does the place where it falls change with them? That is the business of the next section. The first half of G30 ends here; the whole proposition is stated at the end of the next section.
§2 What May Go Faster
In ordinary times, for the city to turn a school to another use, the city Education Department must propose it and the City Council must resolve on it. This time it was settled by the mayor alone, overnight. The City Council did not deliberate first; what it kept was the power to terminate afterward by a two-thirds majority, and the power to amend or repeal the grant through the procedure for making ordinances.
An emergency changes three things.
One is speed. Procedure that in ordinary times takes its course is run through in a night.
The second is order. Act first, review later. Requisitioning the school, drawing the evacuation zone, declaring the curfew: all were done first; whether they were right, and whether they should continue, is put off to be reviewed later.
The third is a temporary division of labor. Decisions that in ordinary times several places make together are, for a time, made by one; the City Council moves from resolving beforehand to terminating afterward; the City Police Department sends patrol officers into the shelter on duty.
All of these can change. Structures can change; the three conditions cannot be withdrawn (Z37). Review beforehand can become review afterward; being questioned beforehand can also become being questioned afterward.
There is one point in "being questioned afterward" that is easy to slide past. What moves to afterward is the point at which review and reply take place, not the point at which one speaks up. Of the three conditions Institution Theory sets for the channel, the second is that "internal subjects can actually initiate it" (Z34). During an emergency, the channel must still be one that can be initiated. If a household in the shelter has its luggage searched and its papers held (§6), they need, then and there, a place to go and say so, a place where neither that patrol officer nor his superior alone has the final say; the investigation can come later, and so can the reply, but speaking up cannot wait until the emergency is over. If a resident has a question about the evacuation zone, he must be able to ask it now. If "being questioned afterward" is read as "allowed to ask only afterward," there is no channel during the emergency; that is withdrawing the three conditions, not moving the point in time. For each step that is to be deferred, it must also be explained whether the delay would make control over that step come to nothing. For a question about the evacuation zone, if the reply has to wait until the water goes down, the evacuation is already over; that an objection can be received does not by itself prove that correction or protection will come in time.
Now the line.
On the night of the flood, the houses outside the levee could take water at any moment; to stay there was to keep one's body at the water's edge. On what grounds the evacuation by a deadline may be compelled is checked by Paper 2's proof-task chain (G10, G11), not in this paper. Here only one thing is said: the chain has not changed, the yardstick has not changed; what has changed is the facts beneath the yardstick. On an ordinary day and on this night, the same line does the measuring; what it finds is no longer the same. So too with the curfew: it keeps everyone in the city off the streets at night, and the great majority of them neither have crossed anyone's line nor live outside the levee. On what grounds it stands is likewise checked by Paper 2's chain, not in this paper; this paper records only its temporal side: it was temporary, and was lifted in the fifth week.
Conversely, some facts the emergency did not change. A household's luggage in the shelter, their papers: the flood changed nothing at all between these things and this household. To search them or hold them without grounds crosses the line in ordinary times, and crosses it in an emergency too. When an emergency comes, some of the facts on which the line falls change and some do not; for those that do not, the emergency crosses the line on no one's behalf.
So three things must be kept apart. An emergency changing procedure: allowed. An emergency changing facts: the facts themselves have changed, and the line measures them as before. An emergency changing the line: not allowed. The third often appears dressed as one of the first two, "there is no time for procedure," "things are different now," while what is to be done is to cross a line that was there all along.
G30 Holding to does not stop in an emergency. The first and second oughts (basic rights not being violated included), the "not sealing the channels" half of the fourth ought, the channel of being questioned under the fifth ought, and the ways of guaranteeing recognition-based rights do not stop in an emergency; these are grouped under "holding to" and extended to the condition of emergency, which is wider than Institution Theory's own sense and is undertaken by this series (own undertaking). An emergency may change the speed and order of procedure and may introduce a temporary division of labor, and may move review and being questioned from beforehand to afterward, but it does not withdraw being questioned: during an emergency the channel must still be one that can be initiated, and what is moved to afterward is the point at which review and reply take place; for each step that is to be deferred, it must be explained whether the delay would make control over that step come to nothing. An emergency also changes the facts on which the line falls; it does not change the line, which is decided by structure. The qualification of the compulsion in the emergency measures themselves goes back to Paper 2 (G10, G11).
§3 Re-examination When the Term Runs Out
The emergency order is renewed every thirty days. In the renewal order of the third month, the box for the reason still carried the sentence from the first order: "The river is rising; residents outside the levee are in danger." By then the water had long gone down.
The three measures each had their own reason, and did not lose their reasons at the same time. The curfew answered to the state of the water at night; after the water went down it stayed in place for a while, and was lifted in the fifth week. The evacuation answered to the water outside the levee; when the water went down, most households outside the levee went home, and sixty had nowhere to go back to. The school was at first for the evacuees to live in; three months later, it still housed those sixty households, and the students were still on the east side.
When Institution Theory treats the structures of guarding, it lays down: "A temporary structure of guarding must be re-examined after its conditions change, and is not renewed automatically on the strength of its origin"; and also, "A standing protective arrangement is not judged oppression merely because it persists" (Institution Theory Paper 3, Z22). In the body of the same section, where Institution Theory derives this proposition, it says: "a temporary concentration, an emergency restriction, must go through re-examination once its conditions change, and is not renewed automatically on the strength of 'it was set up to protect people in the first place.'" (Institution Theory Paper 3, §8) The "emergency restriction" there is a temporary restriction within guarding: suspending a veteran technician's eligibility to take apprentices, directed at the party that crossed the line, not at water.
This proposition was first written within guarding the line: the structures of guarding block line-crossings between persons, under the second ought. Apple City's curfew, evacuation and requisition block water; the great majority of those they act on have crossed no one's line, and the one taking the measures is a government holding compulsion. The subject term, the object and the scale have all changed. Extending Z22 to emergency powers is a step of this series (extension; own undertaking). There is only one ground for the extension: Z22's skeleton does not depend on what the measure blocks; it depends on two things, that the measure is temporary, and that it stands on a specific reason; emergency powers have both. The sentence on which Institution Theory relied in deriving Z22 also says that the reason must be a present one: "Every post-war action is a new action, requiring a new cannot-not to be legitimate." (War Treatise §18, quoted in Institution Theory Paper 3, §8); here it is cited only as concurring. Carried over, the skeleton is four sentences:
- a specific reason supports a specific temporary measure;
- a change in the reason triggers review;
- continuation needs a present ground; it is not renewed on the strength of its old origin;
- a standing protective arrangement, if it has another ground, is explained separately, and is not judged a violation for being standing.
Take these four sentences to that renewal order.
The reason box in the third month carries the reason of the first month. This is exactly what "renewal on the strength of origin" looks like: it says why the emergency order stood in the first place, not why it should go on now. The water went down, the reason changed, and review was thereby triggered. Review is not annulment. Return, in this series, is not a date fixed in advance; it is the conclusion reached when review finds no present ground: then the measure is to be withdrawn and what was occupied is to be returned; whatever is to go on under another ground has that ground set up separately, and explained separately. Three months is a reason for review, not a threshold of expiry: it is not that at three months the emergency order automatically lapses; it is that, with time passed and conditions changed, someone must ask: on what grounds now?
The question on what grounds now has to be checked; it cannot be answered in advance on the order's behalf. Sixty households still live in the school. Institution Theory says: "where an arrangement is necessary to protect particular persons, its continued existence can be a reason to continue it"; and also, "continuation and dismantling are both checked against the persons protected, the task, the authority, the cost and existing commitments" (Z38). Check by these five. The persons protected: sixty households with nowhere to go back to. The task: it has changed from escaping the water to housing people. The authority: the emergency order's authority was given for the flood; whether housing still falls within it must be explained. The cost: students taking their classes in a temporary building on the east side. The existing commitments: one to those sixty households, one to the students. Checked by these five, the result may be that the housing must continue, and that the school may have to be used for a while longer. But that is another reason; a separate judgment must be made for it, by its own procedure; it may not be renewed month after month under the name of the sentence "The river is rising." Who conducts the review, and why it may not be conducted only by the party that renews, is taken up in the next section.
The levee is another matter. That stretch of levee is standing, and it held when the flood came. Having always been there does not make it oppression; its ground is a separate account from when the land was requisitioned, and belongs to Paper 2 (G11). Temporary and standing are kept apart: the emergency order is temporary, and must be re-examined when its term runs out; the levee is standing, and if it produces problems of its own, they are registered separately and checked separately. If Apple City needs a standing arrangement for housing people, it should be set up separately and explained separately, not obtained by renewing the emergency order into a standing one.
The present must still be measured with the same yardstick. The city may say: the school will be returned later. An intention to return it in future is a plan about the future; it does not by itself prove that nothing is sealed off now. Which action is temporarily limited now, and which path of independent questioning and of restoration is still kept, must be checked by the present (Paper 2, G13; G30). In the case of the school, what is temporarily limited now is the use of the building; the students' schooling goes on as before, on the east side; whether students and parents can put questions about the requisition, and take them to a place where the mayor alone does not have the final say, must be checked now, not on the day of return. That autumn, one parent did go and ask; where her question got to, Paper 6 tells.
Concurring, not licensing. Power Theory P6 marked out a kind of intermediate state: "There exist, besides, intermediate states that cancel the interrupt-right temporarily while oriented toward its return (education, administrative trusteeship, therapeutic restraint): the lock is temporary and self-liquidating, with a scheduled path of return." It also says: "This paper does not unfold the intermediate states; it only marks their place." (Power Theory P6 §I) Power Theory is a structural theory; here it is cited only as concurring: a temporary lock, oriented toward return. It issues no license, and does not prove on behalf of any emergency measure that the measure is an intermediate state. "A scheduled path of return" is a structural feature of that kind of intermediate state in Power Theory P6, not a requirement; to take it as a requirement would be to ask for more than Z22; it and Z22 are not a strong and a weak form of one and the same thing, and it is neither taken by default nor left to the Theory of the State.
The strong form is left to the Theory of the State. What follows differs from the preceding item: here there is a strong and a weak form of one and the same thing. The War Treatise, §18, puts it more heavily. Of the two "structural obligations" it gives the victorious party, the first reads: "Actively dismantle wartime structures. ... Active dismantling: command systems restructured to peacetime norms, emergency powers formally relinquished, restrictions on dissent formally lifted, wartime mobilization machinery formally demobilized." And: "Post-war, the legitimacy of these structures immediately vanishes." Institution Theory, within guarding the line, has already narrowed this to the weak form, and has stated that the narrowing is its own (Institution Theory Paper 3, §8). The conditions of war and of ordinary times differ; the strong form is not merely the weak form with one more "must." This series, following Institution Theory, takes the weak form; the strong form is registered as left to the Theory of the State. This is a division of work, and does not mean that the Theory of the State has already proved it.
G31 Emergency powers are re-examined when the term runs out and are not renewed automatically. This takes the weak form of Institution Theory Z22: a specific reason supports a specific temporary measure; a change in the reason triggers review; continuation needs a present ground; it is not renewed on the strength of its old origin; a standing protective arrangement, if it has another ground, is explained separately, and is not judged a violation for being standing (extension; own undertaking). The passing of time and a change of conditions are reasons for review, not a threshold of expiry; if review finds no present ground, the measure is to be withdrawn and what was occupied is to be returned. The present must still be measured with the same yardstick: a plan to return in future does not by itself prove that nothing is sealed off now; which action is temporarily limited now, and which path of independent questioning and of restoration is still kept, is checked by Paper 2, G13, and by G30. "A scheduled path of return" is a structural feature of a kind of intermediate state, not a requirement; to take it as a requirement would be to ask for more than Z22; it and Z22 are not a strong and a weak form of one and the same thing, and it is neither taken by default nor left to the Theory of the State. The strong form, dismantling after the war on one's own initiative, is left to the Theory of the State.
§4 Who Determines That There Is an Emergency
That night, the one who determined that there was an emergency was the mayor. The ordinance lets him declare alone and renew alone; for the City Council to terminate, it must muster two-thirds; it can also, through the procedure for making ordinances, revoke the grant. In those three months, the City Council neither terminated the order nor revoked the grant.
First the first half: the determination may be made by a single position.
There is no need to go round this. The water is rising, there is no time to wait for several places to confer: that is precisely why an emergency is called an emergency. To require that every sudden act first convene several parties to judge together is to require that emergencies not happen. This paper requires no such thing. It establishes only a function, and fixes no form: a single position may judge first, and act first.
Now the second half. Once the determination is made and measures are taken, "is the emergency still there?" becomes a question put to the party that took the measures: do your measures still stand up now? That question cannot be settled by the party questioned alone. Institution Theory Paper 6 lays down this sentence: "the party under review may not monopolize the decision on whether a challenge exists and whether it is over" (Z35a). Institution Theory Paper 0 sums up these propositions of Institution Theory Paper 6 in one sentence: "the party questioned may not monopolize the power to shut the door" (Institution Theory Paper 0, §10.2). The object of Z35a is procedural: "whether a challenge exists and whether it is over"; the object here is the judgment on which the measures rest: whether there is an emergency. The extension goes through because, once measures are taken, "the emergency is still there" becomes the measures' answer to the challenge; to let the party taking the measures settle it alone is to let the party under review settle alone whether the question still has an object. Z34 puts it more directly: what is guarded against is the party under review sealing off review of itself on its own. To bring this down onto the determination, confirmation, prolongation and termination of an emergency is a step of this series (extension; own undertaking). The same proposition Z35a contains another sentence, which bears exactly on the first half: "self-checking can be done, and does not replace the position of being questioned independently." The mayor may determine for himself, and may also review for himself; his review does not replace a review he does not monopolize.
This step must go one layer further, and that layer is marked separately. Once measures are taken, confirmation and termination are not only review: termination must be able actually to stop the measures, and a failed confirmation must be able actually to prevent the renewal. If only the layer of being questioned is watched, review goes on as usual while the efficacy of termination still lies in the hands of the party that took the measures, and the door can be shut all the same. So confirmation and termination fall at the layer of efficacy; what is to be checked below is a path of confirmation or termination that the party taking the measures cannot block on its own. What Z35a originally spoke of is a decision at the layer of being questioned; bringing it down onto efficacy is the same step Paper 6 takes in extending the three conditions of the channel from being questioned to efficacy (G36a), and this is its precedent in emergencies (extension; own undertaking).
Take these two layers to Apple City's configuration. Determination: the mayor. Renewal: the mayor alone, every thirty days. Termination: the City Council, by two-thirds. Revoking the grant: also the City Council, through the procedure for making ordinances. The powers of termination and revocation sit at another position; on paper, there is no monopoly. But "independence" is checked against function: "Independence is functional and does not require being outside the institution; what it guards against is the party under review sealing off review of itself on its own" (Z34). What is to be checked is whether there is a path of confirmation or termination that the party taking the measures cannot block on its own. That the City Council did not terminate in three months does not by itself diagnose a monopoly; perhaps the council members looked into it and concluded that there was still a present ground. That no decision has been reversed does not by itself diagnose a failure of control; Paper 1 has said this (G5).
Suppose that the majority of the City Council belongs to the mayor's party, and two-thirds can never be mustered (branch 24-B). Belonging to the same party is not evidence: Paper 2 said a sentence of the same shape where a judge is nominated by one party (G16); nor does the failure to muster two-thirds by itself diagnose a monopoly (Paper 1, G5). What is to be checked is whether that majority acts only on the mayor's will, read as Paper 2, G16, reads it. If the check finds that it does: termination needs two-thirds, revoking the grant must go through the procedure for making ordinances, and both paths must pass that majority; and the review of renewal, moreover, is in the mayor's hands alone. Then within the city there is no path of confirmation or termination that the party taking the measures cannot block; as a structure, within the city, when the emergency ends is decided by the party taking the measures, and G32 has not been achieved at the city level. If the check finds that it does not, the failure to muster two-thirds is the outcome of a vote in which the council members each judged for themselves, and no monopoly is diagnosed from it.
Power Theory Paper 0, in one structural demonstration, took the same kind of structural reading. It reads the emergency-decree power as a source-configuration: its claimed source is emergency necessity, while "the judgment-power that actually triggers it is concentrated in a single position (by whom the state of emergency is deemed to exist)" (Power Theory Paper 0, §V.1, step two). Only this structural reading is taken here, not the events on which that demonstration drew, nor any inference about where monopoly must lead.
With Schmitt (a contrast from the opposite side). On who determines that there is an emergency, one theorist has given a very direct answer. At the opening of the first chapter of Political Theology, Carl Schmitt defines sovereignty: the sovereign is the one who decides on the state of exception. He goes on to say that the sovereign settles two things, whether an extreme emergency exists and what is to be done to remove it. As the Stanford Encyclopedia of Philosophy (hereafter SEP) summarizes him, an extreme emergency, or an absolute state of exception, is in his view beyond the reach of any legal norm; the sovereign in a polity is whoever is in fact able to decide on the exception, and for him sovereignty is a matter of fact, not of legal recognition; every legal order finally stands on a decision rather than on a norm (per SEP, "Carl Schmitt," §2; tier C. For the definition, the German as cited by Kohns reads Souverän ist, wer über den Ausnahmezustand entscheidet (7th German ed., 1996, p. 13); for the second sentence, Schwab's English translation as cited by Sorell reads He decides whether there is an extreme emergency as well as what must be done to eliminate it (English trans., pp. 6–7). The original is not in hand; it is paraphrased only, without quotation marks).
The common question is this: in an emergency, who judges whether there is an emergency, and who judges how to deal with it.
First check whether it is the same question. The scale differs. Schmitt's concept lies at the level of sovereignty: the exception he speaks of is an extreme case that no norm can foresee, and the one who decides on it is a sovereign not bound by positive law. Apple City's mayor declared the emergency under an ordinance the City Council made; the ordinance gave the City Council the power to terminate; and above the city there is the Kingdom State. That the mayor judged first that night does not make him a sovereign in Schmitt's theory: Schmitt's sovereign is not the first person on the scene to make a judgment, but the one who decides on the exception for the whole order, and whose decision is bound by no material legal constraint (per SEP's summary). Schmitt himself distinguishes two kinds: commissarial dictatorship, acting on the sovereign's behalf, and sovereign dictatorship, which does not defend an existing constitution but sets out to make a new one; the commissarial dictator is only the sovereign's agent, and has no power of his own to decide on the exception (per SEP, "Carl Schmitt," §2; tier C; Dictatorship itself not consulted). Apple City's mayor holds his power under an ordinance, by a grant that can be revoked; he is nearer the first kind. So the two share one question only: whether judging that there is an emergency, and judging how to deal with it, fall at one and the same position, and whether that decision is thereafter no longer subject to constraint.
How far the agreement goes. Schmitt says that a general norm cannot take in a total exception (as cited by Sorell, ibid.); this runs in the same direction as Paper 1's point that rules cannot do judgment in anyone's place (G3). This series also agrees that in an emergency there is a judgment to be made, and that it is to be made first by a single position.
Where they part. Schmitt goes from "there must be a decision" to "the one who decides is bound by no material legal constraint" (per SEP's summary). This series does not take that step: a judgment is completed by the person who sits in the position, takes effect through the position, and must answer to someone (Paper 1, G1, G2). That a judgment is needed does not mean that the judgment is exempt from questioning.
The strongest objection from the other side (drafted by this paper). You say that confirmation, prolongation and termination are not monopolized by one party. But a norm cannot foresee the extreme emergency; when that moment comes, who decides whether this norm of yours still applies? Whoever decides that is the sovereign. Non-monopoly is a norm that holds on ordinary days; in a true exception, either it is suspended, or some party decides not to suspend it. Either way, in the end there is someone who decides. You have merely restated the norm.
Reply. What this objection asks for is not a restatement of the norm but an account of what can still keep non-monopoly in place in a limit situation. Four points.
- Taking the three apart. Schmitt's sovereign does three things at one position: judges whether there is an emergency, judges how to deal with it, and is thereafter bound by no material legal constraint (per SEP's summary). The reason the extreme situation gives is "there is no time to wait." There being no time to wait is a reason for the first two to be done quickly by a single position; it is not a reason for the third. Moreover, there being no time to wait has a term: it holds while the water is rising, and is gone once the water goes down. In Apple City's case, the water went down in two weeks; renewal was still made by one position alone, and three months later the order was still being renewed month by month. The power to renew alone remained in place after the reason "there is no time to wait" was used up; what this series wants is that, at that point, there be a position that can put the question "on what grounds now?" What this point reaches is only a local counterexample, in Apple City: where the only ground for renewal is time pressure that has already disappeared, that ground cannot renew automatically. It is not a general disproof of the theory of the absolute exception; under what premises a norm applies, and by what an order is closed, is answered by the next point.
- Where the retracing stops. "Who decides whether this norm still applies" is a question that will be pursued upward, layer after layer. This series does not let it stop at a highest decider; it lets it stop at a structure: the power to shut the door is not in the hands of the one questioned; it is held by several places, and none monopolizes it (Z35a; Institution Theory Paper 0, §10.2). Schmitt's argument presupposes that an order must be closed by a final decision; this series does not take that presupposition, and this is its normative choice (own undertaking). The two part here, and what divides them is not a matter of fact. Why no final judge is needed is argued in Paper 6 (G36).
- Put in place beforehand. In a limit situation, what actually keeps non-monopoly in place? A structure put in place beforehand: the position that confirms and terminates an emergency is there before the emergency, and its continued existence, its convening and its agenda do not depend on the party taking the measures. This is the independence Z34 speaks of, checked by function. How it is to be set up is the business of specific theories of institutions; here only the function is established.
- No warrant, but no writing off. Suppose that a limit situation sweeps all such positions away. This series gives no warrant that this will not happen: "This series gives no warrant for when questioning will happen, who will take it up, or how long it will last." (Z37) Then Schmitt's description may be the fact. But fact does not settle the norm's account: "past residue is not written off by closing off questioning" (Z35a). The decision that sealed off questioning is itself, on this series' reading, recorded as an item: "if the non-response amounts to a residue in the handling, a separate item of Type B is recorded," Type B being the kind the institution has itself produced (the same proposition, Z35a); once the channel returns, the decision must be questioned. In Schmitt, the decision founds the order; in this series, the decision itself must also go on the account. This is this series' structural claim (own undertaking); this paper does not prove that non-monopoly can actually be kept in every limit situation.
Finally, where this contrast stops must be stated. The absolute exception at the level of a whole state, which concerns whether that state itself still exists, this series does not answer; it is left to the Theory of the State. What this section speaks of is how, within the governments at every level that this series covers, an emergency is determined and how it ends.
Who is to judge whether a power used as occasion demands is rightly used: Locke asked this too, and about the same thing. His prerogative may act without the law and sometimes even against it (what it oversteps is positive law, not his fundamental law); this series lets an emergency change procedure, but not the line (G30). Between the executive and a legislative that depends on it to be convened he finds no judge on earth, and the last judgment is left in the people's hands; this series wants a channel that is there beforehand and within reach on earth (Z34). The end of the paper takes this up in detail.
G32 The determination of an emergency is not monopolized by a single position. The determination may be made by a single position; whether the determination holds and when the emergency ends, together with the review of confirmation, prolongation and termination, are not monopolized by the party taking the measures: the sentence form that the party under review may not monopolize the decision on whether a challenge exists and whether it is over is brought down onto emergencies (extension; own undertaking). Once measures are taken, confirmation and termination fall at the layer of efficacy; this step is the same as that of Paper 6, G36a, and is its precedent in emergencies (extension; own undertaking). This proposition establishes only a function and fixes no form; it does not require that every sudden act first convene several parties to judge together.
§5 When It Cannot Be Achieved
Three hundred beds, five hundred people. The shelter assigned beds in order of arrival, and on the first night the beds were full. Of those without a bed, some went to relatives or friends; some slept on the floor in the school's gym and corridors.
Three hundred beds cannot become five hundred overnight. This is something that cannot be achieved.
Three things first. Whom it concerns: the roughly two hundred people without a bed, and with them the three hundred who have one. Which line: too few beds is a failure to achieve supply, and not in itself a crossing of the line; whether it presses on any one person's life-substrate is checked separately, by that person's situation (below). Baseline: before the evacuation order came down, each had his own place to live.
When something cannot be achieved, two things come most readily to the tongue. One is: "We are responsible only for the three hundred who have beds." The other: "The shelter is operating normally." The first shrinks the ought to the share that can be achieved; the second speaks of what cannot be achieved as if it had not happened.
Admit that it cannot be achieved; do not withdraw or discount the ought. Institution Theory says: "This series grants that in practice an ought may not be achieved, and does not on that account withdraw or discount any of them." (Institution Theory Paper 1, §8) Institution Theory Paper 2, §2, puts it more directly: "Lack of resources bears on how the ought is fulfilled, how the transition is made and how responsibility is attributed; it does not subtract any ought here." The two hundred without beds are inside Apple City just as the three hundred with beds are: the evacuation order lands on them, and they have no way to avoid it. Too few beds does not leave them with one share less. This series takes no position on "ought implies can"; it says only this: that something cannot be achieved subtracts no item from any ought.
Whether the lack of a bed presses on any one person's life-substrate must be checked separately, by that person's situation: an elderly person spending the night in a corridor is not the same as a family staying with relatives. This section does not pass judgment on them all together. What it says is this: however the check comes out, the fact that something cannot be achieved does not in itself subtract an item from any ought.
The transition must be explained. An institution bears the burden of explanation for what it has itself produced, and "must answer the very matter it is questioned about" (Z34). The shelter was opened by the city, the beds were provided by the city, and assigning them in order of arrival was decided by the city. What must be explained is: how large the shortfall is; by what the beds were assigned, and why that way; where those without beds went, and whether the city knows; how the transition is arranged, and until when; who judges these things, and to whom they answer.
Assigning beds in order of arrival is a judgment. They could also be assigned by age, by whether a family has children, by health. This series does not say which ordering is right; it does not teach judgment. What it says is that prioritizing is itself a judgment, and must be explained (Paper 3, G24; Paper 1, G2).
Explaining is not achieving. That something cannot be achieved is no ground for cancelling the burden of explanation and correction; nor is something booked as achieved because it has been explained. Paper 3 said the same thing when writing of the empty shell (G19): permitting questioning is not having fulfilled the guarantee, and explaining in itself is not repairing.
Responsibility is attributed separately to the construct and to the individual. Institution Theory says: "the construct's name does not shield an individual responsibility that has independent grounds, and the construct's failure is not automatically transferred onto any one person" (Z6). The number three hundred, who set it and on what grounds, is the account of the position that set it, and also the account of Apple City as a construct; it does not fall automatically on the person at the door assigning the beds. Conversely, suppose that the person assigning the beds turned people away at the door while beds were still free: that entry is his, and "there were never enough beds anyway" cannot settle it for him. Each is checked by source, authority, registration and the facts of conduct, and no entry settles another (Paper 1, G2).
One more thing must be kept apart. Too few beds is something that cannot be achieved; it is not automatically a crossing of the line. What the next section speaks of is not something that cannot be achieved.
G33 When it cannot be achieved. Admit that it cannot be achieved; do not withdraw or discount the ought. The transition must be explained: what has not been achieved, why, how the transition is arranged, who judges, and to whom it answers; that something cannot be achieved is no ground for cancelling the burden of explanation and correction, nor is something booked as achieved because it has been explained. Responsibility is attributed by Z6: the construct's name does not shield an individual responsibility that has independent grounds, and the construct's failure is not automatically transferred onto any one person.
§6 Crossing the Line in Transition
In the days the shelter was open, a patrol officer, without any grounds, searched one household's luggage and held their papers, returning them only three days later. The search was afterward verified as crossing the line.
The patrol officer said afterward: "During the state of emergency, security at the shelter is our responsibility; checking is part of the job." The City Police Department's reply said: "This was the conduct of an individual officer and has nothing to do with duty arrangements under the state of emergency."
Three things first. Whom it concerns: this household. Which line: the household's control over its own belongings and papers; the search without grounds and the holding of the papers crossed it, as was verified afterward. Baseline: households in the same situation in the shelter, whose belongings are not searched without grounds and whose papers stay in their own hands.
Transition here takes the use Institution Theory makes of the word in "how to make the transition and attribute responsibility when it cannot," and means the stretch that, when something cannot be achieved, leads toward achieving it. The shelter is just such a transitional arrangement: people cannot go home, so the city has the school stand in for the time being; the patrol officer on duty there is part of this arrangement. The search and the holding of the papers are acts made within this arrangement and through a position, and so they are transitional acts; whether they cross the line is read by the first ought (Z9).
Two statements, each pushing in its own direction.
The first pushes it onto the emergency. The words "during the state of emergency" want this matter to fall under the name of the emergency: in those days, many things not done in ordinary times were done. But §2 has already said that the flood changed none of the facts between this household and its luggage and papers; the emergency did not move the line in this matter. The beds of the previous section were something that could not be achieved; this is not. Nothing that could not be achieved forced that patrol officer to search this household's luggage. An emergency can explain what cannot be achieved; it cannot explain away a crossing of the line.
Where Institution Theory speaks of "I was only following the rules," it has a sentence in the same direction: "That a demand bears the name of procedure does not prove that complying with it is within the line." (Institution Theory Paper 2, Z12) The name of emergency is no different.
Institution Theory handed on how the transition is made and how responsibility is attributed when something cannot be achieved (Institution Theory Paper 1, §8; Institution Theory Paper 0, §10.3); how the stretch of the transition that crosses the line is to be booked, it did not write, and left to series that carry judgment. This series answers in conditional form: where a transitional act has been verified as crossing the line, the name of transition does not cancel its attribution. This step is undertaken by this series.
The conditional form has its measure, in two places.
First, a result that falls short of positive securing is not automatically called a violation. The two hundred without beds and the students taking classes on the east side each have their own reading: the former is something that cannot be achieved (§5); the latter is a school building turned to other use while schooling did not stop (§1 and §3). Whether they also engage the first or second ought is checked by their own criteria; they are not booked together as crossings of the line merely because they fall in the same emergency. The conditional covers only the matter verified as crossing the line.
Second, it does not automatically book the construct's responsibility to any one person. This brings us to the second statement.
The second pushes it onto the individual. "The conduct of an individual officer" wants this matter to fall wholly on that patrol officer. Institution Theory blocks both ends: "the construct's name does not shield an individual responsibility that has independent grounds," and "the construct's failure is not automatically transferred onto any one person" (Z6).
That patrol officer's account is that one search and that one holding of the papers. The construct's acts can be traced back to their invocation by particular nodes, and "the address of attribution and the actual actor do not hide each other" (Z7a). He did the searching and he did the holding; Institution Theory, on the side of guarding, has said something in the same direction: "particular operations that have been established can be attributed to the person, but no permanent identity is assigned to him" (Institution Theory Paper 3, Z19). Whether in his own mind he really took checking to be part of the job does not change the fact that this matter crossed the line: "crossing the line does not require that anyone intend it" (Institution Theory Paper 2, Z10). His account judges the operation, not the person.
The City Police Department's account is another entry, to be checked separately. Who decided to send patrol officers into the shelter; when they were sent, whether there were rules about searches, and how those rules were written; whether there was a place in the shelter where this household could speak up then and there, and get its papers back; why it took three days. "Nothing to do with duty arrangements" is one thing the City Police Department says, and it too must be able to explain: to explain its duty arrangements, answering the very matter it is questioned about (Z34). If the check finds a gap, that entry lies with the City Police Department, with Apple City as a construct; it is not carried by one person alone merely because the luggage was searched by one person. The construct is the address of attribution, not the subject of the act (Z7a); its account is not settled by that patrol officer's account, nor does it settle his.
The papers were returned after three days. The return stopped an effect that was still continuing; it does not settle the account. How the three days that have already passed are to be responded to needs a ground of its own. Paper 2, dividing after-the-fact disposition, separated two items of the same shape (G12); there they were directed at the party that crossed the line; here what crossed the line is the city's own act, and both the stopping and the response are made by the city toward itself.
G34 Crossing the line in transition. Where a transitional act has been verified as crossing the line, the name of transition does not cancel its attribution (own undertaking). This does not automatically name as a violation every result that falls short of positive securing, nor does it automatically book the construct's responsibility to any one person (Z6).
§7 With Locke
§4 asked who determines that there is an emergency, and pointed here. John Locke devotes chapter XIV of the Second Treatise of Government, "Of Prerogative," to prerogative. What the Law Series Supplement conversed with was Locke's social contract (Law Series Supplement §7); this is another text, and another question.
He first says why there must be prerogative: the legislators cannot foresee everything, and the one who executes the laws has the power in his hands, and in many cases where the law has given no direction may use it for the good of the society, "till the legislative can conveniently be assembled to provide for it" (Second Treatise, ch. XIV, §159, per Project Gutenberg e-text #7370; tier A). He also says that "a strict and rigid observation of the laws may do harm; (as not to pull down an innocent man's house to stop the fire, when the next to it is burning)" (ibid.). Then comes the definition: "This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative" (§160, same source). Later he says that prerogative is the people's permitting their rulers to do several things "where the law was silent, and sometimes too against the direct letter of the law, for the public good" (§164, same source); in a word, "prerogative is nothing but the power of doing public good without a rule" (§166, same source).
Finally he comes to the question of §4: "who shall be judge when this power is made a right use of" (§168, same source). His answer is that between an executive power in being that holds such a prerogative, and a legislative whose convening depends on the executive's will, "there can be no judge on earth" (ibid.); "The people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven" (ibid.). He goes on to say that, though the people cannot, by the constitution of that society, give an effective sentence, they have, by a law prior to all human positive laws, kept the last judgment for themselves: to judge whether they have just cause to appeal to heaven ("reserved that ultimate determination to themselves"; §168, same source); and that this judgment does not come into play until the inconvenience is so great that the majority feel it ("this operates not, till the inconveniency is so great, that the majority feel it"; ibid.).
The common question. When the law cannot keep up or cannot foresee: who judges, on what grounds, and, once the judgment is made, who judges it. The two ask about the same thing.
How far the agreement goes. Three points.
- The law cannot foresee everything, and a judgment must be made first. This runs in the same direction as Paper 1's point that rules cannot do judgment in anyone's place (G3), and as the first half of §4: a single position may judge first.
- In the kind of case where the law has given no direction, prerogative is a temporary division of labor. §159 says that the executive uses this power until the legislative can be assembled; this is precisely the temporary division of labor of §2: the executive acts first, and when the deliberating side is able to deliberate, hands the matter back.
- Precedent turns into origin. Locke sees this clearly: while good princes reign, the people do not limit their prerogative; but their successors "would draw the actions of those good rulers into precedent, and make them the standard of their prerogative" (§166, same source), and contest follows. When §3 says that there is no renewal on the strength of origin, it guards against the same thing.
Where they part. Two points, both falling on what this paper has already established.
The first is at the line (G30). Locke's prerogative may go beyond positive law, but not beyond his fundamental law. He says that the rules legislators make for other men's actions "must, as well as their own and other men's actions, be conformable to the law of nature" (ch. XI, §135, same source); the legislative power has no end but preservation, and has no right to destroy, enslave or deliberately impoverish the subjects (ibid.). When he comes to prerogative, he says that in some cases the laws themselves should give way to the executive power, "or rather to this fundamental law of nature and government" (§159, same source). What prerogative oversteps is positive law, not his fundamental law. This series lets an emergency change the speed and order of procedure, but not the line; the line is decided by structure. How his fundamental law and this series' line correspond item by item is not compared in full here.
Pulling down an innocent man's house to stop a fire must, in this series, go back to Paper 2's proof-task chain, including how the loss and the remedy are booked (G11), and whether it crosses the line is checked segment by segment as in Paper 2, §7 (G13); this paper issues no further license, nor does it declare, on this one example alone, that the two bottom lines are already opposed. What must be stated precisely is Locke's scale. The fundamental law is: "That as much as may be, all the members of the society are to be preserved" (§159, same source); the same section also says that even the guilty are to be spared where this does no harm to the innocent. This scale, too, is addressed to every person. The two set themselves different tasks of explanation here. Locke, within his framework of natural law, puts forward the end of preserving the members as far as may be; this series asks first, here, whether the means crosses a structural line, and then checks authority, alternatives and loss separately. For pulling down that one house, this series requires it to pass Paper 2's chain, and the owner's loss and remedy must be booked; §159 does not ask about this entry. Actions that can be limited are limited according to Paper 2's chain; a step that crosses the line does not become permissible because more people would be preserved: the line "is not discounted under any condition" (Z9). The ought of guarding the line has said something in the same direction on the side of guarding: "When protection reaches the scale of a group, it does not trade others for this group's safety" (Institution Theory Paper 3, Z19). A bounded aim of preservation and a set of boundary criteria can coexist; whether the two would reach different conclusions in a particular case requires a separate comparison on the same question, and cannot be obtained from the words "as much as may be" alone. It is not said here that Locke would overstep the limit he set in §135 to preserve the many, nor that this series has refuted him.
The second is at who judges (Z34; G32). Both want a judgment that is not in the hands of the party under review. Locke places it outside the constitutional order, in the people, as the last step, which moves only when the majority feel it; this series wants it inside the constitutional order, there beforehand, able to be initiated by anyone inside, with no retaliation for initiating it (Z34). In Locke's slot of confrontation, the legislative can be convened only through the executive, and so there is no judge on earth. Reading this slot, this series reads exactly the configuration §4 guards against: whether the party that can review it is able to meet lies in the hands of the party under review. What this series wants is that the position that confirms and terminates an emergency be there beforehand, its convening and agenda not dependent on the party taking the measures. The appeal to heaven is what is left when this channel on earth is not there.
One thing must be stated precisely here, so that this step is not written too large. "Being questioned afterward" is, in this series, an ought addressed to the construct, resting on the three conditions of Z34 and the non-monopoly of G32; it is not a description of some existing routine. Locke himself records that the limits on prerogative were fixed by the people, in the points where they found disadvantage from it, "by express laws" (§162, same source); he says that this takes from the prince nothing that was his by right, but only declares what was so all along (§163). The express laws came afterward. Whether Apple City has such a channel, and whether it is enough, must be checked in this case; the branch in §4 has already shown that, if the check comes out that way, the channel can exist on paper only.
The strongest objection from the other side (drafted by this paper). The last judgment is already in the people's hands (§168); to set up another reviewing position on earth is only to add one more power that can be gripped by the executive. You want review on earth, but the party that reviews prerogative is itself a position that holds power, and it too can judge wrongly and abuse its power; set up another layer to review it, and there will be a third layer, a fourth, and the difficulty of "no judge on earth" has only been moved upward. Besides, when good officeholders exercise prerogative, the people seldom find fault in the first place (§161). To send every judgment a good officeholder makes as occasion demands to review, in order to guard against the bad ones, will only slow down the very speed an emergency most needs.
Reply. Three points.
- This channel is not a higher judge; the reviewer is itself reviewed, and it too may not monopolize review of itself. For why no final judge is needed, see §4 and Paper 6 (G36).
- Speed is not harmed. The determination and the first measures can still be made by a single position (the first half of G32); what is reviewed is confirmation, prolongation and termination, and its point in time comes after.
- The people's last judgment is not cancelled, and good officeholders are not affronted. Whether to ask is the affair of those inside (Institution Theory Paper 6, Z36); a channel being open does not mean that someone asks every time. What this series wants is that, before that judgment comes to an appeal to heaven, there be a place on earth to go, and that this place not be in the hands of the party under review. Judgments can be wrong, and that is why they must be open to questioning (Paper 1, G7); Locke's own point about precedent shows precisely that good judgments, too, will be taken up by those who come after as an origin.
Where This Paper Stops
This paper has proved only these things: in an emergency, the things this series groups under "holding to" do not stop; an emergency may change the speed and order of procedure and introduce a temporary division of labor, review and being questioned may be moved from beforehand to afterward, and during an emergency the channel must still be one that can be initiated; an emergency changes the facts on which the line falls, not the line; emergency powers must be re-examined when their conditions change, and are not renewed on the strength of origin; the passing of time and a change of conditions are reasons for review, not a threshold of expiry; when review finds no present ground, what was taken is returned; a plan to return in future does not prove that nothing is sealed off now; an emergency may be determined by a single position; whether the determination holds and when the emergency ends, and the review of confirmation, prolongation and termination, are not monopolized by the party taking the measures, and once measures are taken, confirmation and termination fall at the layer of efficacy; when something cannot be achieved, the ought is neither withdrawn nor discounted, the transition must be explained, and responsibility is attributed by Z6; where a transitional act has been verified as crossing the line, the name of transition does not cancel its attribution.
What it has not proved: on what grounds compulsion stands in an emergency, and the qualification of the curfew, the requisition and the evacuation each, are checked by Paper 2's chain, not in this paper; how a particular emergency law is to be written lies with specific theories of institutions and with jurisprudence; war, and the exception at the level of a whole state where its survival is at stake, lie with the Theory of the State; "a scheduled path of return" is a structural feature of a kind of intermediate state, and to take it as a requirement would be to ask for more than Z22; it and Z22 are not a strong and a weak form of one and the same thing, and it is neither taken by default nor left to the Theory of the State; the strong form, dismantling after the war on one's own initiative, is left to the Theory of the State.
That river, that school and those sixty households will be used again in the papers that follow.
The Five Propositions of This Paper
G30 Holding to does not stop in an emergency. The first and second oughts (basic rights not being violated included), the "not sealing the channels" half of the fourth ought, the channel of being questioned under the fifth ought, and the ways of guaranteeing recognition-based rights do not stop in an emergency; these are grouped under "holding to" and extended to the condition of emergency, which is wider than Institution Theory's own sense and is undertaken by this series (own undertaking). An emergency may change the speed and order of procedure and may introduce a temporary division of labor, and may move review and being questioned from beforehand to afterward, but it does not withdraw being questioned: during an emergency the channel must still be one that can be initiated, and what is moved to afterward is the point at which review and reply take place; for each step that is to be deferred, it must be explained whether the delay would make control over that step come to nothing. An emergency also changes the facts on which the line falls; it does not change the line, which is decided by structure. The qualification of the compulsion in the emergency measures themselves goes back to Paper 2 (G10, G11).
G31 Emergency powers are re-examined when the term runs out and are not renewed automatically. This takes the weak form of Institution Theory Z22: a specific reason supports a specific temporary measure; a change in the reason triggers review; continuation needs a present ground; it is not renewed on the strength of its old origin; a standing protective arrangement, if it has another ground, is explained separately, and is not judged a violation for being standing (extension; own undertaking). The passing of time and a change of conditions are reasons for review, not a threshold of expiry; if review finds no present ground, the measure is to be withdrawn and what was occupied is to be returned. The present must still be measured with the same yardstick: a plan to return in future does not by itself prove that nothing is sealed off now; which action is temporarily limited now, and which path of independent questioning and of restoration is still kept, is checked by Paper 2, G13, and by G30. "A scheduled path of return" is a structural feature of a kind of intermediate state, not a requirement; to take it as a requirement would be to ask for more than Z22; it and Z22 are not a strong and a weak form of one and the same thing, and it is neither taken by default nor left to the Theory of the State. The strong form, dismantling after the war on one's own initiative, is left to the Theory of the State.
G32 The determination of an emergency is not monopolized by a single position. The determination may be made by a single position; whether the determination holds and when the emergency ends, together with the review of confirmation, prolongation and termination, are not monopolized by the party taking the measures: the sentence form that the party under review may not monopolize the decision on whether a challenge exists and whether it is over is brought down onto emergencies (extension; own undertaking). Once measures are taken, confirmation and termination fall at the layer of efficacy; this step is the same as that of Paper 6, G36a, and is its precedent in emergencies (extension; own undertaking). This proposition establishes only a function and fixes no form; it does not require that every sudden act first convene several parties to judge together.
G33 When it cannot be achieved. Admit that it cannot be achieved; do not withdraw or discount the ought. The transition must be explained: what has not been achieved, why, how the transition is arranged, who judges, and to whom it answers; that something cannot be achieved is no ground for cancelling the burden of explanation and correction, nor is something booked as achieved because it has been explained. Responsibility is attributed by Z6: the construct's name does not shield an individual responsibility that has independent grounds, and the construct's failure is not automatically transferred onto any one person.
G34 Crossing the line in transition. Where a transitional act has been verified as crossing the line, the name of transition does not cancel its attribution (own undertaking). This does not automatically name as a violation every result that falls short of positive securing, nor does it automatically book the construct's responsibility to any one person (Z6).
References
All SAE works below are cited by concept DOI, which always resolves to the latest version. The version records used for sentence-by-sentence verification are given in the accompanying audit table.
I · This system
Qin, H. (2026). To Whom the Ought Is Addressed (SAE Institution Theory, Paper 1) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23269635
Qin, H. (2026). Not Crossing the Line (SAE Institution Theory, Paper 2) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23270384
Qin, H. (2026). Guarding the Line (SAE Institution Theory, Paper 3) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23270766
Qin, H. (2026). Between One Another (SAE Institution Theory, Paper 5) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23271072
Qin, H. (2026). Open to Questioning (SAE Institution Theory, Paper 6) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23271324
Qin, H. (2026). What an Institution Is Not (SAE Institution Theory, Prequel) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23269330
Qin, H. (2026). Institution Theory and the Tradition: The Address of the Ought (SAE Institution Theory, Paper 0) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23272468
Qin, H. (2026). On the Severing of Power · Shi (SAE Power Theory, Paper 6) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.20647463
Qin, H. (2026). The Power Machine and Its Shi (SAE Power Theory, Paper 0) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.20707047
Qin, H. (2026). SAE War Treatise: How Cultivation Is Not Swallowed by War Itself [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.19656617
Qin, H. (2026). On the Limitation and Violation of Basic Rights (SAE Rights Theory, Paper 5) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.21212595
Qin, H. (2026). A Posterior Dialogue with Western Jurisprudence (SAE Law Series, Supplement) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.19551526
II · External works (public-domain originals, tier A)
Locke, J. Second Treatise of Government (1690 text, transcribed from C. B. Macpherson ed., Hackett, 1980). Project Gutenberg, EBook #7370. https://www.gutenberg.org/ebooks/7370
III · External works (secondary sources underlying tier C)
Vinx, L. Carl Schmitt. In The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/entries/schmitt/
Sorell, T. (2003). Schmitt, Hobbes and the Politics of Emergency. Filozofski vestnik 24(2), 223–241.
Kohns, O. (2009). Wie spricht man den Ausnahmezustand aus? Überlegungen zu E. L. Doctorows »Ragtime« im Anschluss an Agamben, Depenheuer und Carl Schmitt. In O. Ruf (ed.), Ästhetik der Ausschließung: Ausnahmezustände in Geschichte, Theorie, Medien und literarischer Fiktion (pp. 267–280). Würzburg: Königshausen & Neumann.
IV · External works (cited at second hand)
Schmitt, C. (1988). Political Theology: Four Chapters on the Concept of Sovereignty. Trans. G. Schwab. Cambridge, MA: MIT Press. (original not in hand; cited from Sorell 2003, n. 5; tier C)
Schmitt, C. (1996). Politische Theologie. Vier Kapitel zur Lehre von der Souveränität (7th ed.). Berlin: Duncker & Humblot. (original not in hand; cited from Kohns 2009, n. 9; tier C)
Interfaces
- Main upstream: Institution Theory (Paper 1, Z6, Z7a, Z8, §8; Paper 2, Z9, Z10, Z12, §§1–2; Paper 3, Z15, Z19, Z22, §8; Paper 5, Z28; Paper 6, Z34, Z35a, Z36, Z37, Z38; the Prequel, §7; Paper 0, §10.2).
- Also used: Rights Theory P5 F21 (§1, by way of Institution Theory Paper 2, §1); Power Theory P6 §I (intermediate states, cited only as concurring); Power Theory Paper 0, §V.1, step two (structure only); War Treatise §18 (the strong form, left to the Theory of the State; the sentence on "a new cannot-not" cited as concurring); Institution Theory Paper 3, "Where This Paper Stops"; Institution Theory Paper 0, §10.3.
- Interfacing: Schmitt (§4, a contrast from the opposite side, tier C); Locke, Second Treatise, ch. XIV, with ch. XI, §135, also cited (pointed to in §4, taken up together at the end). Pointing back: Locke's social contract (Law Series Supplement §7).
- This series: Paper 1, G1, G2, G3, G5, G7; Paper 2, G10, G11, G12, G13, G16; Paper 3, G19, G24; Paper 4 (levels; the linking sentence of the Introduction); Paper 6, G36, G36a; the Prequel, §§5 and 8.
- Handed to Paper 6: who asks about what is left behind in time.