No containment for ideas at CEDS: Interview with Alain-Gérard Slama
A few words about Alain-Gérard Slama :
On the photo, on the right, with Alain Juppé, during the Réforme et Modernité conference on March 4, 2009. Alain-Gérard Slama is President of the Fondation de l’École Normale Supérieure, Vice President of the group of qualified personalities at the Conseil économique, social et environnemental, member of the Conseil d’analyse de la société auprès du Premier ministre, member of the Comité consultatif national d’éthique, member of the Commission nationale consultative des droits de l’homme, member of the Scientific Council of the Fondation pour l’innovation politique, and member of the jury of the Alexis-de-Tocqueville Prize. He has also been a member of the Rassemblement pour la République and the Orientation Council of the Institut Montaigne. He was the director of general culture studies at Sciences Po (IEP de Paris). Until 2007, he was a professor of the history of political ideas and is still a lecturer in law and literature. Alain-Gérard Slama was also Director of Studies at the Collège interarmées de défense (École de guerre) from 1993 to 1996, and was a visiting fellow at the St. Louis Institute of Political Science. He is a member of the St. Antony’s college of Oxford University and the Center for European Studies of Harvard University.
1) Mr. Slama, what do you think about this containment situation?
I am aware that it is unseemly to try those responsible for a defeat in the midst of that defeat. One quickly runs the risk of discrediting oneself by taking the risk of stirring up passions at the expense of scapegoats: the Riom trial, brought in February 1942 by the Vichy government against the former leaders of the Third Republic, had to be abandoned in a hurry two months after its opening. The worst enemy of the democracy of opinion is the hasty exploitation of information on the spot, and its almost inevitable correlate: the trial of intention. Punish, they say, even before worrying about how to heal and cure. On the other hand, I believe it is useful, if only to avoid recurrences, to demonstrate that the health, economic and social disaster that has befallen the developed world was not part of any “system”, nor was it fatal. Finally, I don’t think it’s a bad idea to remind people that, contrary to the angelist speeches that present the ordeal of a pandemic of unprecedented severity since the Spanish flu of 1917 as an “opportunity”, this is indeed a catastrophe, the consequences of which will have to be repaired as soon as the page has been turned.
No, this situation was not inevitable, and notice is given to those who would be tempted to draw conclusions by giving the advantage to authoritarian regimes, to the detriment of democratic regimes. The global spread of the new retrovirus would not have exploded if it had been the subject of immediate treatment by a totalitarian nation, China, as soon as the first case was identified in Wuhan on November 17, 2019. There is no excuse for China to have waited until December 31 to inform WHO, and for WHO, which is largely dependent on China for its finances, to have waited until January 23, 2020 to relay the alert, and until January 30, i.e. more than two months after the outbreak of the pandemic, to declare an emergency, and still to oppose a tightening of border controls. But this does not excuse the slowness with which the necessary prophylactic measures have been put in place in Europe and more particularly in our country.
For example, on January 17, the WHO Emergency Committee asked States to initiate “strong measures to detect the disease at an early stage, isolate and treat cases, trace contacts and promote social distancing measures proportionate to the risk”. Germany was able to start its test protocol on January 17. In mid-April, the official French government still refuses to generalize these tests, and still does not have the means to do so. Our country also distinguished itself by being the only one in the Schengen area that did not suspend its visas with China as of February 1st. Likewise, despite WHO warnings, he maintained the Lyon-Turin match which brought together 3,000 fans from Italy on February 26, where the virus had spread rapidly. On March 10, the day before the WHO finally decided to officially declare a global pandemic, the President of the French Republic set up a Scientific Council, whose first concern was to hide behind the legal limits of its competences by refraining from formulating an unfavourable opinion on the maintenance of the first round of municipal elections, held, as planned, on March 15.
On March 16, the WHO again insisted on the following message which, in retrospect, has a cruel resonance for the French government: “test, test, test! Isolate the positive people and trace back their contact chains”. “You can’t fight a fire blindfolded. And we can’t stop this pandemic if we don’t know who is infected. On March 17, at noon, the Head of State resigned himself to announcing the entry into force in France of a generalized surveillance protocol for travel, speaking of “war”, but without pronouncing the word “confinement”. Almost a month later, as I write these lines, the stock of masks, the necessary means of testing and, even more seriously, the respirators needed to fight the virus and keep the most severely affected patients alive, are still insufficient. I will not have the cruelty to compare this disastrous discrepancy between the available treatments and the imposed constraints, which maintain resentments, and even more seriously between the promises and the realities, which cannot fail to appear in retrospect as so many State lies. I refer the reader to the unstoppable chronology, unfortunately, published on the Mediapart website in April 2020.
Of course, it can be argued, to the credit of the physicians and health services mobilized since the beginning of this pandemic, that an unprecedented research effort has been developed since the beginning of the alert. Virtually all avenues are being pursued by virologists and epidemiologists, including, most recently, that of lower vulnerability to Covid-19 in countries where BCG, the tuberculosis vaccine, is widely available. Thus, the Tunisian Minister of Health has recently paid a tribute of recognition to the memory of Bourguiba! But why did we have to wait until mid-April for the President of the French Republic to publicly recognize the interest of “testing”, for lack of other recognized treatments, the “Raoult protocol” (by combination of Hydroxychloroquine and azithromycin) which apparently obtains results in Marseille? Without even resorting to this therapy, nor to radical containment solutions, as in South Korea, Germany offers our country a model of efficiency whose merits have been strangely glossed over until now, with a unanimity that is in itself a symptom of bad conscience, in government declarations and journalist investigations. The reason why Germany, which has a larger population than France, had five times fewer deaths in mid-April 2020 than our country, is a question that cannot be avoided sooner or later.
2) The state of emergency
The problem raised by the promulgation of the state of emergency becomes more acute in light of the foregoing remarks. Since containment is a default response to the pandemic, it cannot have a time limit. Already in his most recent statement, the head of state announced that this constraint could be extended, due to age or frailty, for several months beyond May 11.
However, the enactment of a state of emergency, in principle declared by decree in the Council of Ministers, can only be justified in a democracy by the theory of exceptional circumstances, which implies by definition a bracketing of fundamental rights, between the date of its enactment and the date of its expiry, under the control of the judiciary and of parliament, as soon as the latter can meet again. The state of emergency law of 3 April 1955, at the beginning of the Algerian war, specified, for example, that the extension of the state of emergency beyond twelve days could only be authorized by law. The organic emergency law of March 23, 2020 establishes a state of health emergency, alongside the common law state of emergency provided for by the law of April 3, 1955. Its provisions are valid for one year, until April 1, 2021.
However, “insofar as the Covid-19 epidemic prevents these courts from meeting in collegial formation, the organic law suspends until June 30, 2020 the three-month period during which the Council of State and the Court of Cassation must transmit, after examination, a priority question of constitutionality to the Constitutional Council; as well as the three-month period during which the Constitutional Council rules on a transmitted question. The only institution to have expressed an official reservation on this subject, the National Consultative Commission on Human Rights, “considered that it was not admissible in a state governed by the rule of law to adopt provisions that infringe on fundamental rights and freedoms (freedom of movement, freedom of assembly, freedom of worship, freedom of enterprise, etc.), by a simple decree of the Minister of Solidarity and Health, without any control or prior examination by the Council of State. That said, the CNCDH, which is generally considered to be more fussy on this subject, “nevertheless recognizes the overall validity of the state of health emergency, aware of the unprecedented nature of the situation”.
In addition, “it particularly approves of the measures designed to protect vulnerable people: postponing the end of the winter truce by two months; measures to help the homeless; extending certain social rights; and extending the period of validity of residence permits for foreigners.” Finally, in its April 6, 2020 newsletter, it “calls on the government to take new measures in favor of the most precarious people, such as, in particular, the establishment of a real national steering, by the State, of aid to precarious people, in particular food aid; the creation of a crisis unit on the situation of migrant people.”
So many excellent intentions which do not lead, concretely, to endorse by a de facto state of affairs the violations of human rights by a republican government which, in the name of the health emergency, does not respect any more than the forms of the State of law.
3) “The world of tomorrow”?
Our greatest jurist, Jean Carbonnier, expressed his scepticism about the sacredness of the rule of law by objecting that it could be an encouragement for the State to play with the law. What I fear most about the current crisis, especially if it were to appear that it could have been easily resolved, is that this cowardly relief will lead to a paradoxical reaction: on the one hand, the loss by the State of the principal basis of its legitimacy – its quality of guarantor of the law – as soon as the principal conquest of the Fifth Republic, stability, has become nothing more than an alibi for arbitrariness; on the other hand, the observation that freedom is now only a relative value in relation to the primacy of urgency, depending on the moment, the place, the circumstances, and that this State stripped of the foundations of its legitimacy will nonetheless be authorized by an opinion without unity or reference points to do anything. In saying this, I am not doing anything other than describing the processes and conditions which, in the last century, made the advent of totalitarian societies possible.
It is trite to say that the best way to resist this slope is to educate informed and responsible citizens. This does not imply a rupture, which most commentators boast about, but refers us to the republican project built in Europe in the perspective of several centuries, and which gathers the most precious of our heritages. The heritage of the Enlightenment, namely reason, which distinguishes without relativizing; the heritage of the Republic: the critical spirit – of which Claude Lévi-Strauss confided to me, upon reading Pierre Nora’s Places of Memory, that its awakening had prevented the republican school from becoming totalitarian; the heritage of democracy: the separation of powers and orders; the heritage of history, which warns us against the myths that blind – the savior, the conspiracy, transparency; the heritage of literature, finally, which is based on the culture of the complex and the rejection of uniformity.
Thank you Mr. Slama for the time you have given us. You who read us, take care of yourself.Updated 27 June 2022