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Emergency Law and Prerogative

Emergency law means that the ruler or the government in an emergency situation can take measures that are outside the limits of the law or against the direct letters of the law. Emergency law must be decided by the executive power, the executive branch of government.

For example, the Danish intelligence agency's files are a typical example of emergency law. They are a clear violation of the Danish Basic Law article 77 - "Censorship and other preventive measures shall never again be reintroduced."

The intelligence agency's files
The files of intelligence agency.

The concept of emergency law is based on the truth that the overall purpose of all government really is the good of the people.

Democracy, laws and human rights are merely means that the people can use to control the executive branch and thereby ensure that it works for the real purpose, which is the best for society.

Human rights and democracy should not be overall common values that replace the real objective, the good of the people. They are only tools in the political process. If laws, democracy or human rights stand in the way of this objective, the executive power will do right to ignore them.

Emergency laws may imply that the executive power interferes in some citizens' freedoms as defined by actual laws, in order to achieve the larger goal of the good of the people and the nation.

Emergency laws can hardly be defined in a constitution or other laws, since these precisely by definition are measures that are not within the scope of the law, or they are contradicting existing laws written letter. It takes measures for situations, which legislators were unable to predict, when the laws were made.

Rules for emergency laws or prerogative, as Locke called it, cannot be defined by international legal literature and legal experts' notes. If the situation requires that the executives cannot follow written laws, why should legal professor's papers restrict them?

After the emergency situation is over, the executive should seek approval for its actions in the parliament and ultimately with the people.

When the hero of an American action film jumps into a random private car, pulls up a police sign and says: "Police, we need this car, get out". So it is a kind of popular illustration of emergency law.

The police agent overrides some less important laws, namely such about private property and the owner's right to exercise his ownership over his car, in order to achieve a greater common good, namely the arrest and conviction of the great enemy of society, whom he pursues.

Second Treatise of Goverment by John Locke.
Second Treatise of Goverment by John Locke. - He published it anonymously as an argument against a Robert Filmer, who wrote the the people was one big family with the king as the father.

We do not believe that American police in real world behaves like this.

Emergency law is primarily described by John Locke in his "Second Treatise of Government '" Chapter XIV, "Of Prerogative". What Locke calls "prerogative" is a wider concept than emergency law.

In Denmark, the executive and the legislature powers have used emergency law in a number of cases. It is in the case of the internment of the communists in 1941, the conviction of the returned volunteers from the Eastern Front in 1945 as part of the general prosecution of persons, who had cooperated with the Germans, and in connection with the establishment and running of the secret files over possible enemies of the state in the post war period.

It seems likely that emergency law may play a role also in the solution of future society problems.

John Locke's Prerogative

The philosopher John Locke was the architect of the modern Western democracies. It was his ideas about democracy, which the thirteen rebellious British colonies utilized in 1776 in their new Constitution for the United States. The new democracy in the distant America became a major inspiration for the following French Revolution in 1789.

Locke created the ideas of representative democracy, regular elections, separation of power, and much more.

His political masterpiece is "Second Treatise of Government". Chapter 14, "Of Prerogative", describes government decisions that are not supported by ordinary law.

The philosopher John Locke 1632 - 1704
The philosopher John Locke 1632 - 1704.

John Locke was aware of the danger that politicians could come to forget the true purpose of legislation and government and tangle up in pedantic speculation about democracy theoretical details.

The basic purpose of laws and government are the good of the people. Locke wrote: "- judging rightly, that they did nothing herein to the prejudice of their laws, since they acted conformable to the foundation and end of all laws, the public good." (Sec. 165)

The executive power should be able to make decisions outside the framework of the law, wrote Locke. "- for the legislators not being able to foresee, and provide by laws, for all that may be useful to the community, the executor of the laws having the power in his hands, has by the common law of nature a right to make use of it for the good of the society, in many cases, where the municipal law has given no directions" (Sec. 159).

In an emergency situation it should also be possible for a government to take decisions against the letter of the law, to the best of the people. "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" (Sec. 160).

That is, what we call emergency law.

The superior purpose of government, Locke believes, is the good of the people. No matter what clever arguments weak princes lead in the field to support their corrupt case, it is not true and just, if not the general direction of their policy is for the good of the people.

The people have no trouble determining whether a prince's government is for the good of the people or not.

A king of Llandaf, which made up a minor part of Wales on the time of king Arthur
A king of Llandaf, which made up a minor part of Wales on the time of king Arthur.

After the situation has normalized and it is practicable, the legislature power must be convened and the executive power may seek approval for its actions."- till the legislative can conveniently be assembled to provide for it.." (Sec 159)

Once in ancient times, when nations were not much bigger than large families, nearly all government was prerogative. There were a few simple laws, and for the rest the king took care with his daily decisions, his prerogative. The king watched over his people as a father, and his people knew, that he would work only for their best. They shared a common destiny. If it went wrong for people, it would also go wrong for the king, and vice versa. Nobody had any ideas about democracy.

Laws and democracy have entered the world basically because of distrust of the rulers. "But when mistake or flattery prevailed with weak princes to make use of this power for private ends of their own, and not for the public good, the people were fain by express laws to get prerogative determined in those points wherein they found disadvantage from it." (Sec. 162).

But the people will allow good princes extensive powers "- for as a good prince, who is mindful of the trust put into his hands, and careful of the good of his people, cannot have too much prerogative, that is, power to do good." (Sec. 164)

The Internment of the Communists in 1941

In Denmark, the executive power has used their prerogative in a number of cases, issuing emergency laws.

German soldiers on the march in Russia June 1941
German soldiers on the march in Russia June 1941.

When the Germans opened their Barbarossa offensive against the Soviet Union on June 22 1941, requested the German military commander in Denmark 196 named Danish communists to be arrested and taken into custody, including three members of parliament.

The head of the government, Thorvald Stauning, gave the order that the German request should be fulfilled.

A total of 325 Communists were arrested by the Danish police and placed in the prison, "Vestre Fængsel", or detained in a camp at the village of Horserød near the city Elsinore.

Two months later, 20 August 1941, Parliament passed a law retroactively, which outlawed communist activities and was the legal basis for the arrest of any person, who was supposed to take part in such activities.

The Horserød camp - from Helsingør Leksikon
The Horserød camp - from Helsingør Leksikon.

This decision by the executive power was a clear breach of the constitution. It was in open contradiction to the letter of the law.

The imprisonment of the communists was in contradiction of the Danish Basic Law article 71, also in 1941: "The Personal freedom is inviolable. No Danish person can, because of his political or religious beliefs, undergo any form of detention."

The imprisonment of communist parliament members were in contradiction of paragraph 57: "No member of parliament may without its consent be subject to prosecution or imprisonment of any kind, -"

Areas of Europe conqured by the German armies in 1941
Areas of Europe conquered by the German armies in 1941.

In legal terminology a law with retrospective effect is called an "ex post facto law." Such laws are generally regarded as a breach of law and order.

We cannot say, that a nation is ruled by law, when the laws are made only after, the events have taken place and adapted according to, whom the rulers want to have convicted.

This decision was a typical case of emergency law or prerogative, as Locke would have expressed it. Also the government themselves called it emergency law.

In the summer of 1941, when this happened, the German armies seemed invincible.

With astonishing speed the German armies had conquered Denmark, Norway, Netherlands, Belgium, Poland, France, Yugoslavia and Greece. The British succeeded only barely to evacuate their mini-army from the beach of Dunkirk - without heavy weapons. U.S.A maintained their traditional isolationist foreign policy and took no part in the war. Most politicians thought that the communist Russia would collapse more or less by itself under attack by the experienced and well-equipped German armies.

In 1941 there was every reason to believe, that the Third Reich would win the war, and that Germany would be Europe's dominant power well into the foreseeable future.

Under such circumstances it might have seemed very important to maintain some sort of Danish government. It must have looked as the best hope of preserving a kind of Danish sovereignty.

The hope was not unrealistic. The Nazis seemed to have felt a certain veneration with their fellow Germanic peoples in Scandinavia, as they perceived us. Hitler himself had sympathy for the old Danish king.

It may have seemed essential not to get in direct opposition to the Germans. They must to be brought to believe that there was some sort of community between the two peoples. For example, also we could not stand the communists.

BOPA - the leading  communist partisan group after the surrender of the germans
BOPA - the leading communist partisan group in the spring of 1945.

Leadership and strategy will very often require sacrifice. A chess player may sacrifice some pawns to get into a better position. A general may sacrifice some specific army units, for example in a diversionary attack, in order to pave the way for victory.

The Danish government chose to sacrifice the communists - for the good of the people.

The responsible Danish government may then have considered that a desperate "last stand" for democracy and freedom would have been the last chirp, which world history would have heard of a free Danish people.

The government Stauning was not afraid to tackle the problem and do, what they thought was right. Their goal was to save Denmark; democracy came second.

The communists were serious and energetic people, of whom the nation could be proud. Later in the guerrilla war, which followed, they proved their qualities. They became the backbone of the resistance. But the present situation required sacrifices.

The postwar authorities have consistently accepted the guerilla wars actions as emergency law. It is forbidden by Danish law to blow up other people's factories and trains, it is also forbidden to kill people because you think that they are informers or of any other reason. The postwar period however has accepted that these actions were necessary, and the freedom fighters were not prosecuted.

The Conviction of the Eastern Front Volunteers in 1945

6000 danish men took part in the fierce fighting at the German Eastern front Six thousand danish soldiers took part in the fierce fighting at the German Eastern front.

In the summer of 1945 thousands of surviving Danish volunteers returned home from the German eastern front.

They were all put on trial and accused of treason after a newly made law passed retroactively. The law was backdated to the 9 of April 1940. "... anyone, who had recruited soldiers or has been enlisted as soldiers in German military service, shall be punished with imprisonment", the law stated.

Laws passed retroactively are generally regarded as a breach of law and order. They are in legal terminology called "Ex post facto laws." One cannot say, that laws rule a nation, when the laws will only be made after the events have taken place and adapted according to whom, the rulers want to punish. For example, it was an offence to have been a volunteer in German military service, while it was not a criminal offence to have been voluntary soldier in the Finnish Winter War or in the Spanish Civil War.

The conviction of the Eastern Front volunteers was a prerogative, which the executive power used - to the best of the people - an emergency law, although the government did not use this term.

The reality was, that the war did not develop as Thorvald Stauning and his ministers feared back in 1941. Germany did not become the dominant power of the world.

German soldiers surrender at Stalingrad in February 1943 - the battle of Stalingrad was the turning point of the war
German soldiers surrender at Stalingrad in February 1943 - the battle of Stalingrad was the turning point of the war.

The United States entered the war with its immense resources and production potential. Against all expectations the Soviet Union mobilized enormous quantities of men and weapons and drove the Germans back all the way from Stalingrad to Berlin.

In the last days of the war the British warplanes attacked Danish ships and trains, just as they attacked ships and trains in Germany. Denmark was an enemy nation, and the Allies could not see the big difference between Denmark and Germany. The Russians conquered the island of Bornholm, in the same way as they had captured East Prussia, Pomerania and Brandenburg.

The Allied powers had taken all the Danish ships, they could get, as legal booty, captured from the enemy.

Denmark had a serious image problem. We were internationally regarded as a kind of ally of the defeated Germany.

It was very important to be recognized as a western ally, an opponent of the German war effort.

Memorials for danish soldiers at Kinderheim in Estonia
Memorials for danish soldiers at Kinderheim in Estonia.

As part of the solution, the government decided to sacrifice the returned volunteers from the Eastern Front.

The returning soldiers were deeply serious and determined young men, who had let action follow their words. Most had signed up to fight communism. They were highly praised for their bravery during the fierce fighting in Russia.

But the situation called for sacrifices for the sake of the nation.

On the 29 of June 1941, a week after the German attack on the Soviet Union and the internment of the communists, "Free Corps Denmark", an independent Danish military corps, was formed. Its purpose was to fight communism.

About 6000 young Danish men volunteered to fight against the Soviet Union. They were almost all sent to the eastern front, where about 2,000 perished.

The volunteers had every reason to believe, that the government and the official Denmark stood behind them in their decision.

Fre Corps Denmark in action in Russia
Danish soldiers from Free Corps Denmark in action in Russia.

The corps was created with the acceptance of the Danish military and the Danish Government. Officers, who wanted to serve in the corps, were in a general circular, issued by the army, granted leave from the Danish military, and could later return with full rank.

At the departure of "Free Corps Denmark" general Gørtz represented the regular Danish army.

One of the leaders of the corps, Kryssing, spoke in the official Danish State Broadcasting Radio; he called Danish men to join the corps.

The first leader, the charismatic von Schalburg, perished shortly after the arrival at the Eastern Front. A memorial service for him was held in Copenhagen, where Prime Minister Buhl attended along with representatives of the Danish armed forces and the royal family.

"We live in a legal madhouse!" said a Supreme Court lawyer Henriques, who was involved in the legal showdown against the Eastern Front volunteers as a defense attorney.

It was because the decision to convict the returning soldiers was a prerogative, which the government Buhl utilized, a decision outside scope of the law - to the good of the people.

Historically, cooperation can be a perfectly logical strategy. For example, when the Persians invaded Greece in 480 BC, many Greek states chose to declare allegiance to the king of Persia and supplied soldiers to his army. So did the northern state of Thessaly, and so did all the Ionian cities along the coast of Asia Minor. "If you cannot beat them, join them", as it is said. It is just not wise to join a battle, that you cannot win.

It is only a shame that the eastern front volunteers today, 65 years after their homecoming and conviction, still did not get any rehabilitation.

The Secret Files

Secret files from the seventies - to day every thing is done much easier by computers Secret files from the seventies - today every thing is done much easier by computers.

During the fifties it became known that the Danish intelligence agency maintained secret files on possible political dissidents.

Secret files on citizens, who had not been guilty of any wrongdoing, is a typical preventive measure, which clearly contradict the direct letter of the Basic Law, article 77: "Everyone is entitled to, in print, in speech and writing to publish his thoughts, taking responsibility in face of the courts. Censorship and other preventive measures shall never again be re-introduced."

The executive power has never defended this breach of the constitution. They simply avoid discussing it. It is a prerogative that they have acquired - for the best of the society.

The people have never seriously objected to the files. Most people know that these kinds of measures are necessary, especially in these terrorist times. The citizens have generally had confidence that the executive branch of power would not abuse them.

As Locke wrote, the people are not overly preoccupied with petty theoretical details, "the people are very seldom or never scrupulous or nice in the point; they are far from examining prerogative, whilst it is in any tolerable degree employed for the use it was meant, that is, for the good of the people", "the tendency of the exercise of such prerogative to the good or hurt of the people, will easily decide that." (Sec. 161)

Statements by successive ministers of justice plentifully document the existence of the secret files.

Minister of Justice, Hans Hækkerup, spoke to parliament in 1964 saying that "any kind of suspicious activities" was recorded.

Osama Bin Laden
Internationale terrorists has threatned the Danes.

In 1978 the Minister of Justice, Erling Jensen, told the Legal Committee of parliament that more than 300,000 persons had been removed since 1965. How many, who were in the files in total, have never been reported, but one can guess that if 300,000 has been erased, so there may have been in the neighbourhood of perhaps half a million or some more.

The Minister of Justice, Knud Thestrup, said: "I am not the one, who does the recording, but I assume that everybody, who goes too far, have been recorded."

Recently, the "terrorist kit" from 2006, a collection of anti-terrorist laws, has streamlined collecting information to the files. Telecommunication companies and Internet suppliers are required to record all traffic, save it for a year and provide it to the police intelligence service, when required.

But the people know that in these times, when Muslim terrorists have directly threatened the Danes, precautionary measures like this are necessary - to the good of the people, whatever the letter of the law says.

A Good Prince Cannot Get too much Power

"For a good prince, who is aware of the trust, that is placed in his hands, and is careful with the best of his people just cannot have too much prerogative, that is, the power to do good." wrote John Locke (Sec 164)

Laws, democracy and human rights are good things that we are great supporters of. But such ideas should not be ends in themselves. They are just means and tools that the people can use to check the executive power, when necessary.

The real purpose of all government is the best of the people - that is, for our part, the Danish people's best interest.

Locke wrote of the executive power's right to exercise leadership: "This power, whilst employed for the benefit of the community, and suitably to the trust and ends of the government, is undoubted prerogative, and never is questioned: for the people are very seldom or never scrupulous or nice in the point; they are far from examining prerogative, whilst it is in any tolerable degree employed for the use it was meant, that is, for the good of the people, and not manifestly against it: but if there comes to be a question between the executive power and the people, about a thing claimed as a prerogative; the tendency of the exercise of such prerogative to the good or hurt of the people, will easily decide that question." (Sec. 161)

Thorvald Stauning 1873 - 1943 Wilhelm Buhl 1881 - 1954
Left: Thorvald Stauning 1873 - 1943.
Right: Wilhelm Buhl 1881 - 1954.

In 1941, when Stauning felt that the very existence of the nation was in danger, he was not afraid to tackle the problem. He made laws retroactively, and broke at least two articles of the constitution. The people accepted tacitly. Denmark's existence was more important than democracy.

Nor Wilhelm Buhl's hand trembled, when it in 1945 was necessary for Denmark to find a place among the worlds free and democratic nations. He made laws retroactively; a multitude of people was sentenced after them, more or less fair.

After the war every government, has maintained and developed the Danish intelligence agency's secret files, even they are a clear violation of the Basic Law Section 77. They felt, and felt rightly, that the good of the nation is more important than compliance with formal laws that their predecessors have adopted, because they could not predict the future.

As John Locke wrote: "That as much as may be, all the members of the society are to be preserved: for since many accidents may happen, wherein 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)"

It is not right to profess democracy and human rights as untouchables common values, which replaces Christianity and the Motherland. This will prevent the executive power to exercise leadership - to the good of the people.

It will then truly be impossible for them to prevent foreigners taking over our country.

See the full text of "Of Prerogative" (english): CHAP. XIV. - Of Prerogative - by John Locke - Liberty Library

"Leksikon for det 21. Århundrede" has good information about PET and the secret files (danish): Politiets Efterretningstjeneste - Leksikon - Tvivl på Alt

At South Danish University - Esbjerg one can find much objektive information and also many links: Danmark under besættelsen og befrielsen - Internet leksikon

Frants J. Langhoff has collected a lot of information about the the Danish Eastern Front Volunteers (danish): Frikorps Danmark

The Guerila war is described in (danish): BOPA en modstandsorganisation under Danmarks besættelse 1940 - 1945

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