WIP on the RoL

Here are the abstracts of a couple of short papers I’ve presented recently, the first at the Understanding Conflict conference in Bath, the second at a workshop on critical terrorism studies at the British International Studies Association. I don’t think anyone was there for both – which is just as well, as there is a certain amount of overlap.

GOVERNING VIOLENCE: RULE OF LAW OR RULE BY EXCEPTION?

In a 2014 case, an English Defence League member found in possession of a home-made nail bomb was given a two-year sentence for possession of explosives. Terrorism charges were not brought, on the grounds that “it was never [his] intention to use the device for any terrorist or violent purpose”. The arbitrariness of this decision is as striking as its leniency towards an individual who does not fit the received profile of the violent (Islamic) extremist. This paper will argue that decisions such as this are not aberrations: counter-terrorist legislation since 2000 has been designed to be used on a discretionary basis, not as a set of standards to be applied uniformly but as a tool for the criminalisation of selected suspects. This discretionary mindset is related to the discourse of ’emergency’ surrounding the concept of terrorism. Terrorists – and, more recently, ‘extremists’ – are framed as inherently unacceptable to the democratic state: not potential entrants to the political sphere, but threats to democratic politics itself. Hence it is appropriate to respond to the urgent threat of ‘extremist’ disruption with emergency counter-measures which go beyond the law – or which stretch the law to the point where it will accommodate arbitrary official action. The danger posed by this approach is not merely the instrumental and discriminatory use of the law, with predictably divisive effects. The larger danger is that, in the zone of exception created by counter-terrorist legislation and policing, the rule of law – the law as a systematic, comprehensible and followable set of norms, applicable to everyone – will no longer apply. If the use of political violence and the expression of ‘extremist’ views are no longer governed under the law, what are the implications for the public space of politics?

And:

TERRORISM: THAT OBSCURE OBJECT OF COUNTER-LAW

The threat of terrorism – and, increasingly, the mere threat of ‘extremism’ – is typically framed as so urgent and so extreme that it is appropriate to respond with emergency counter-measures which go beyond the law – or which stretch the law to the point where it will accommodate arbitrary official action. On one hand, individuals suspected of extremism are subjected to coercive and unaccountable interventions, without any allegation of illegal activity and outside any lawful accountability. On the other, counter-terrorist legislation is increasingly characterised by preparatory and inchoate offences, to that point that an individual accused of terrorism need only be found guilty only of an ‘ouster’ offence, potentially provable against a wide range of people. This paper argues that the proliferation of anti-terrorist ‘counter-law’ – law-making and policing which undermines the principles of the rule of law – offers a new approach to the vexed question of defining terrorism: perhaps ‘terrorism’ is, first and foremost, that which justifies counter-law. This argument opens up the possibility that critiquing counter-terrorism from a ‘rule of law’ perspective may have surprisingly radical effects, undermining the claims to exceptional action and discretionary enforcement which are fundamental to today’s discourse of terrorism and extremism.

And here are the references (I’ve merged the two lists).

Blair, A. (2004), speech given in Sedgefield, 5 March
Brodeur, J.-P. (1983), “High policing and low policing”, Social Problems 30(5)
Carter, H. (2011), “Jihad recruiters jailed after anti-terror trial”, Guardian 9 September
Crown Prosecution Service (2012), The Counter-Terrorism Division of the CPS: Cases concluded in 2011
Dodd, V. (2014), “Soldier jailed for making nailbomb avoids terror charge”, Guardian 28 November
Ericson, R. (2007), Crime in an insecure world
Fuller, L. (1964), The morality of law
Home Office (2008), From the neighbourhood to the national: Policing our communities together
Neocleous, M. (2006), “The Problem with Normality: Taking Exception to ‘Permanent Emergency’”, Alternatives 31
Pantazis, C. and Pemberton, S. (2009), “From the ‘old’ to the ‘new’ suspect community”, British Journal of Criminology 49(4)
Schmitt, C. (2004 (1922)), Politische Theologie
Simmonds, N. (2007), Law as a moral idea
Thomas, P. (2015), “Prevent and Community Cohesion in Britain: the worst of all possible worlds?”, in Baker-Beall, Heath-Kelly and Jarvis (eds), Counter-Radicalisation: Critical perspectives
Waldron, J. (2008), “The concept and the rule of law”, Georgia Law Review 43(1)

A proper paper will follow – possibly two; I think there may be a paper just in a discussion of Ericson’s idea of counter-law – law deployed instrumentally with the specific purpose of undermining legal standards and protections. Ericson never developed it theoretically in any depth – he never had the chance, even if he might have wanted to – and, perhaps as a result, subsequent discussions of the concept have been fairly superficial and sometimes (I think) misleading. There’s definitely some inter-disciplinary bridge-building to be done between ‘counter-law’, on one hand, and ideas about the rule of law on the other. (Brodeur and Fuller, together at last!) On the other hand, I’m becoming less interested in the ‘state of exception’, and in Agamben and Schmitt generally; I think the critique of the over-use of the ‘exception’ advanced by Neocleous, Miéville and others is powerful, even though – as the references above will indicate – I don’t share their post-Critical Legal Studies assumptions, or their scepticism about the rule of law in particular.

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