Editor’s note: Some parts of this post first appeared in the book Law in Times of Crisis.

Reflecting on the horrific events of Friday, November 13, in Paris and the French governmental turn to emergency powers, it bears reminding that the resort to a state of emergency in a situation of crisis is not new. The French legal system incorporates three legal sources for conferring emergency powers on the government. Two of these sources are found in the French Constitution of 1958 and one has a statutory basis in a law passed on May 3, 1955. President Hollande invoked that statutory source when he declared a nationwide state of emergency throughout the Republic on November 13, 2015 which went into effect at midnight on November 14. All three legal structures derive from a shared history. This post addresses that history. We devote a separate post to discussing the substance of the new declaration of emergency in France and its extension by the French parliament last week.

Origins: The State of Siege (état de siege)

The state of siege was originally imagined in terms of full governmental powers being conferred upon the military commander of a besieged fortress. After the French Revolution, the state of siege came to be applicable not only to an area actually besieged by foreign invaders, but also to areas endangered by internal rebellion and disquiet. The rules were fairly straightforward. A state of siege could only be declared by law and only in the event of imminent danger resulting from a foreign war or an armed insurrection.

An état de siege was reserved for the most exceptional circumstances. That motif remains consistent today. When a state of siege was properly declared (by parliament) all powers concerning the “maintenance of order” transferred, in their entirety, to the military. The main legal effect of a declaration of a state of siege was to transfer police and other powers relevant to the maintenance of peace and order from civilian to military authorities. In practice this meant, among other things, that military courts could assume jurisdiction over any offense pertaining to the safety of the Republic, against the Constitution, and against public peace and order whether committed by military personnel or civilians. In addition, the military enjoyed powers to conduct searches in private premises, to deport certain persons from areas put under a state of siege regime, and to prohibit publications and assemblies which it judged to be of a nature to incite or sustain disorder.

On August 2, 1914, a presidential decree imposed a state of siege on all of France. This was at a time when parliament was in recess and was passed to maintain public order as a general mobilization was underway. This presidential order was followed three days later by a law declaring that the state of siege would be in effect “for the duration of the war.”

The authority to declare a state of siege was not exercised again in the period between the two World Wars. Instead, the French government turned to another legal mechanism — the enabling act and broad delegations of power from the French parliament — as a source of executive lawmaking and the major source for emergency powers in post-War War I France. The epitome of administrative emergency power usage came with the Daladier administration which, from April 1938 until the final days of the Third Republic, governed France through executive decrees in accordance with four enabling acts. This included the enabling act of March 19, 1939, which authorized the government to issue decrees with respect to “all measures necessary for the defense of the country,” and the act of December 8, 1939, which made executive decree a permanent emergency institution for the duration of hostilities — making the existence of hostilities a sufficient condition for executive lawmaking without further legislative authorization.

The State of Emergency (état d’urgence)

By the end of the 1950s, France had lost most of its assets abroad, being forced to relinquish Vietnam (in 1954), Tunisia and Morocco (in 1955), and its (at least self-perceived) status as a leading global power. The war in Algeria, waged from 1954–1962, put much more at stake than physical territory. Algeria was regarded as protecting the southern flank of France against Islamist threats extending from the Middle East. More importantly, most French people — on both the right and the left sides of the political map — considered Algeria to be an inseparable part of the Republic. Indeed, under French law Algeria was an integral part of metropolitan France. “The Mediterranean,” Pierre Mendès declared, “runs through France like the Seine through Paris.”

Dealing with a violent confrontation in Algeria against the FLN (the National Liberation Front), the French government did not want to resort to a declaration of a state of siege primarily for symbolic reasons. The legal solution came about in the passage on May 3, 1955, of Public Law 55-385 authorizing the government to declare a state of emergency (état d’urgence). The law conferred broad police powers on the government, including the imposition of curfews and traffic bans, controlling of public movements, conducting warrantless searches and house arrests day and night, prohibiting public gatherings and assembly, and closing down public meeting places. The law also raised the possibility (provided additional, specific decrees to that extent are issued) of “controlling the press” and authorizing military jurisdiction over criminal offenses and crimes. At the same time, under a declared state of emergency such broad powers were conferred on the civilian authorities rather than the military, making it politically more acceptable when the powers are exercised domestically.

The law of 1955 was invoked twice in Algeria, in 1955 and 1958. In 1955 it was applied to curb the FLN. In 1958 it was invoked to deal with fears of an imminent military coup against the French government. When the government of Pierre Pflimlin was invested on May 13, 1958, a violent riot broke out in Algiers, staged by French pieds noirs assisted by military commanders. The riot resulted in the forming of a Committee of Public Safety headed by the top commanders of the French forces in Algeria, Generals Massu and Salan. This unchallenged revolt was soon followed by the establishment of similar local Committees throughout mainland France. Invasion of the mainland by paratroopers seemed to be a matter of days. This did not materialize but the fear of insurrection was substantive though short-lived. In both cases it applied, in whole or in part, to the territory of Algeria.

The State of Emergency Comes to France

Despite the declaration of a state of emergency, threats of extreme violence and instability to France persisted. On June 1, 1958, General Charles de Gaulle became France’s president and was given emergency powers (including the power to prepare the new constitution for the Fifth Republic) for a period of six months.

The concentration of power in the Office of the President was substantial and raised many concerns about undue power being given to one individual. Nowhere is this clearer than in the context of article 16 of the Constitution of the Fifth Republic. Article 16 invests sweeping emergency powers in the President of the Republic. The President is empowered to take “any measures required” in the event that the “institutions of the Republic, the independence of the nation, the integrity of its territory or the fulfillment of its international commitments are gravely and immediately threatened and the regular functioning of the constitutional public authorities is interrupted.”

In an attempt to mitigate the extreme nature of article 16, several conditions for its exercise were introduced: First, resort to the expansive presidential powers under article 16 was to be made only in abnormal situations. As it now stands, article 16 applies to all threats, whether international or domestic. Second, to invoke her powers under article 16, the President must identify serious and immediate threats to the nation and act to overcome those threats. However, the decisions as to what constitutes such a threat and what measures ought to be taken in any given case, are left to the sole discretion of the president. Such actions, it would seem, are not reviewable by any of the judicial authorities. Third, the functioning of the constitutional institutions is interrupted. Fourth, article 16 provides that measures used under it “must stem from the desire to provide the constitutional public authorities, in the shortest possible time, with the means to carry out their duties.” However, the decision of when to terminate the resort to article 16 is left to the sole discretion of the President. Fifth, article 16 imposes on the president a duty of consultation with the Prime Minister, the Presidents of the assemblies, and the Constitutional Council. Article 16 allows the President to attain broad powers similar to those that she would have under a regime of a state of siege, while by-passing the procedural and substantive requirements of that regime.

Article 16 was invoked only once — on April 23, 1961, as a means to contain a military coup in Algeria after a referendum on independence for Algeria received overwhelming support by the French public. The goal was to prevent the coup from spreading to the mainland. Exercising the special emergency powers, the President established special military tribunals, instituted censorship, granted expanded powers of search, seizure and arrest to the French police, modified parts of the criminal procedure, suspended the life-tenure appointment of judges, and dismissed thousands of military and police officers and personnel. Significantly, President de Gaulle prohibited the Parliament from voting on a motion of censure or legislating altogether. In line with their general attitude of deference to the political branches on such matters, both the Conseil d’État and the Constitutional Council refused to review the powers employed by the President on their merits, proclaiming those questions to be outside their scope of jurisdiction. This “rally around the flag” phenomenon is one we have described at length here, and is consistent with the response of the French Parliament to the decision to extend emergency powers in the aftermath of the recent Paris attacks.

In addition to article 16, the French constitution also retains a provision — incorporated into article 36 — dealing with a state of siege. That provision has never been invoked.

Back to the Future: The Month? November. The Year? … 2005

For 44 years, no state of emergency was declared in France (one such declaration was made in January 1985 when a state of emergency was declared in New Caledonia, a French territory in the South Pacific, in response to violence led by the island’s independence movement. It lasted until the end of June that year. Another declaration was made on October 29, 1987 in the Islands of Wallis and Futuna, a French overseas territory, to deal with a “dispute with traditional chiefs on Wallis Island” that resulted in “a minor ruckus.” The state of emergency lasted for one day.)

On October 27, 2005, the city of Paris witnessed the eruption of ethnic riots following the accidental death of two French youths of Malian and Tunisian descent in an electrical sub-station in the Parisian suburb of Clichy-sous-Bois as they were fleeing the police. The riots soon spread to nearly 300 cities and towns across France. Over the next three weeks, the rioters torched some 9,000 cars and scores of buildings causing damage estimated at €200 million. Nearly 2,900 rioters were arrested by the police. On November 8, two days after the worst night of rioting, which left more than 1,400 burnt cars across France, the French Cabinet used the law of 1955 to declare a state of emergency, empowering departmental prefects to impose curfews, allow the police to set up roadblocks, conduct house searches, prohibit public assembly, and put people under house arrest. Curfew breakers were liable to up to two months’ imprisonment. On November 14, less than one week after the introduction of the state of emergency, the French Cabinet decided to seek legislative approval for the extension of the emergency police powers for an additional period of three months. Both the National Assembly (on November 15) and the Senate (two days later) swiftly passed the necessary legislation. It is worth noting that despite the fact that some 30 municipalities were placed under nightly curfews for unaccompanied children under 16, and temporary orders banning public gatherings were imposed in Paris and Lyon, most prefects had chosen not to exercise the emergency powers. That state of emergency terminated on January 4, 2006.

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The sporadic use of emergency power in France underscores the scope of the power and symbolic weight of the measure. Moreover, despite considerable stress points for France over decades of de-colonization and military engagements abroad, emergency powers were largely externalized, never usually internalized. This means that in fact, unlike many other democracies who have made ample use of emergency practice at home, France is somewhat exceptional, having used ordinary French law to deal with the threats it faced over many decades.

The shock and fear which has reverberated throughout every fiber of French society is manifested in the scale of emergency legal response. However, as we will explore further, it is not entirely clear that much of what France proposes to do under these new powers could not also be done by utilizing the ordinary law. Equally for a society which deeply values liberty, it remains to be seen how the move to regularized exceptionalism will fare, and whether the concentration of power and practice in the office of the President and the actions of the military on home soil will sit easily with the broader French public.