British Journal of Criminology Advance Access published online on June 12, 2009
British Journal of Criminology, doi:10.1093/bjc/azp036
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The British Journal of Criminology 0:azp036 (2009)
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Exceptionalism and the ‘War On Terror’
Criminology Meets International Relations
* Danish Institute for International Studies (DIIS), Strandgade 56, DK-1401 Copenhagen; rmu{at}diis.dk.
Criminology and International Relations (IR) share a relatively wide vocabulary: political violence, crime, security, deterrence, war on terror, risk, human rights and freedom. Particularly in the case of the ‘war on terror’, similar concerns and conceptual tools have increasingly surfaced on both sides. Nonetheless, one debate—namely Carl Schmitt's theory of the exception and its uptake in IR—has travelled less well. This article argues that there is value in engaging with the IR debates on the exception. From the perspective of IR, the exception makes possible different insights about the dialectics between law and crime by unpacking the constitutive role of the politics of fear, the importance of the ‘international’ and the transformed relationship to the future. It also exposes the deteriorating effects of the ‘war on terror’ on justice, democracy and social transformation.
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Introduction |
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 Top Introduction Exceptionalism and the Politics...Exceptionalism and the...Exceptionalism and the Future:...Conclusion |
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Criminology and International Relations (IR) share a relatively wide vocabulary: political violence, crime, security, deterrence, war on terror, risk, human rights and freedom. Despite disciplinary differences, it is perhaps no surprise that criminological and sociological research on risk and policing has inspired a growing literature in IR. At the same time, criminological scholars have increasingly drawn on security theories developed within the field of IR to make sense of criminological issues (de Lint and Virta 2004; Loader and Walker 2007; Zedner 2007).1 The ‘war on terror’ is no exception. Critical of the governance of terrorism, criminological and IR scholars have debated the role of pre-emption, prevention, risk management and anticipation in the war on terror. Detention, camps, surveillance, prevention, risk, security and liberty have become increasingly important points of debate within and between both disciplines.2
In an attempt to contribute to the intellectual exchange between criminology and IR, this article proposes to unpack a debate that has travelled less well, namely Carl Schmitt's (1996) theory of the exception and its uptake in International Relations. In IR, torture, indefinite detention, extraordinary renditions, deportation of foreign nationals suspected of being a threat, the invasion of Iraq, the flouting of international conventions, increasingly restrictive migration and asylum policies have all revived inquiries into the role of sovereignty, illiberal practices of liberal states and exceptionalism (Bigo and Tsoukala 2006; Huysmans 2008; Jabri 2007; Neal 2006; Salter 2008; van Munster 2004). We contend that there is value in engaging with Schmitt's theory of the exception, which has been revived and hotly debated in IR, particularly in the context of Giorgio Agamben's (1998; 2004) reformulations of the political implications of exceptionalism.3 The theory of the exception, this article argues, can shed new light on the processes underpinning counter-terrorism and security governance. Drawing on IR readings of the exception, we also show how the deployment of risk management in the ‘late modern’ governance of crime and danger can be reformulated from this perspective.
Nonetheless, in criminology, Schmitt's theory of the exception has not attracted much attention. While the rise of security governance has propelled some discussions about mechanisms ‘for determining under what conditions and in what degree derogation [from rights] is permissible’ (Zedner 2005: 521), the exception is largely absent from such discussions. Instead, counter-terrorist policies post-9/11 have been explored through the criminological and sociological vocabulary of state crime, moral panic or governmentality.4 When the exception is mentioned, it becomes an explanatory tool of current changes in law and governance rather than a problematic that needs to be unpacked (McCulloch and Pickering 2005). Theories of state crime and moral panic see exceptionalism as essentially lawbreaking (with illegitimate lawmaking subsumed to lawbreaking). However, the reading of the exception presented here complicates the relationship between crime and social order.
Following Susan Bibler Coutin's injunction to pay more attention to societal processes that differentiate between legality and illegality, between lawbreaking and law-abiding behaviour (Coutin 2005), we analyse the role of the exception in the particular configuration of the ‘war on terror’. The article considers how the exception raises questions about the constitutive function of the politics of fear, the role of the ‘international’ in the construction of enemies and the temporality of law. What does it mean to constitute liberal political communities and define power relations domestically and internationally through the exception? What difference does the ‘war on terror’ make for the constitution, regulation and reproduction of political communities?
To answer these questions, we proceed in three stages. The first section deploys IR interpretations of exceptionalism to reconsider the dialectics of law and crime found in criminological accounts. It points out how exceptionalism founds law and social order by turning fear of the enemy into its constitutive principle. In the following section, we focus on the role of the ‘international’ in the construction of enemies and the blurring of lines between domestic and the international. Tracing a common ground for further IR–criminology dialogue, the final section contends that exceptionalism inserts itself with precautionary governmental processes that challenge law's relationship with the future. Taking seriously the criminological injunction to rethink the relationship between democracy, security and social justice in light of 9/11 (Mythen and Walklate 2006b; Welch 2007), we also briefly indicate how the analysis of exceptionalism developed here can shed light on the deteriorating effects of counter-terrorism on resistance and social transformation.
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Exceptionalism and the Politics of Fear |
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TopIntroductionExceptionalism and the Politics...Exceptionalism and the...Exceptionalism and the Future:...Conclusion |
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In International Relations, the ‘war on terror’ has given renewed relevance to theories of exceptionalism, as Guantánamo Bay, Abu Ghraib, extraordinary rendition, migration camps or surveillance practices were all increasingly defined as states of exception. They exemplify ‘an array of illiberal policies and practices that are legitimated through claims about necessary exceptions to the norm’ (Neal 2006: 31). For instance, Guantánamo has been described as the realm of ‘normless ... decision making in which the executive powers possess fully discretionary authority’ (Scheuerman 2006: 118). These sites of exception and arbitrary decisionism have been analysed as the underside of the modern state, the violent condition for the existence of sovereignty, even in the context of liberal democratic regimes (e.g. Bigo and Tsoukala 2006; Diken and Laustsen 2005).
Although debates about security, implications for human rights, risk and preventive policies have been ongoing in criminological accounts, the state of exception has sparked less interest.5 Richard Ericson and Michael Welch are two ‘exceptions’ in this sense. Ericson (2007) considers the state of exception within the double movement of Counter Law I and Counter Law II to capture the multiple transformations of governance in the war on terror. Counter Law I is based on the formulation of new laws that undermine existing laws, while Counter Law II uses extra-legal technologies of surveillance and profiling to further undermine law. For him, exceptionalism refers to practices of lawbreaking (even when this is done through the creation of new laws). Similarly, Welch's (2007) discussion of impunity in post-9/11 counter-terrorist policies deploys the concept of the exception to account for the redistribution of power between executive, judicial and administrative authorities.
The criminological literature on state crime, moral panic and exceptionalism thus focuses on criminal ‘wrongs’ as measured against a pre-existing system of legal ‘rights’. As such, the analytical usage of exception in criminology can be subsumed under more familiar explanations of moral panics or state crimes. The literature on state crime, for example, has described the Iraq war, Abu Ghraib and Guantánamo Bay as deviant acts perpetrated by the United States (Green and Ward 2005; Kramer and Michalowski 2005), while the moral panic literature has called the ‘war on terror’ a disproportionate reaction to the events of 9/11. Both regard the construction and manipulation of fear among the public as the continuation of vested elite interests by illegal means (Rothe and Muzzatti 2004: 347).
The discussion of the exception in IR literature offers a different perspective on the dialectics between law and crime as well as the relationship between fear and social order. First, where criminological interpretations show how exceptional politics overwrites the law, IR scholars add that the exception also underwrites the law. Drawing on the work of Schmitt (1996) and Agamben (1998) in particular, IR scholarship has pointed out that the exception is constitutive of legal and social order. Second, IR scholarship has shown how exceptionalism does not just play upon public panics, but also institutionalizes fear of the enemy as the constitutive principle for society.
Unpacking IR's reading of the exception is important in order to grasp how the exception is more than a ‘transparent tactic by political authorities to gain the upper hand in the politics of authority’ (Welch 2007: 138). For Schmitt, exceptionalism does not simply refer to the creation of moral panics by means of which state elites can further their interests, often by undermining civil liberties. Rather, it is a ‘general concept in the theory of the state’ (Schmitt 1985a) that accounts for the limits of order. In this interpretation, crime and war share many similarities, opening a dialogue between criminology and IR. Therefore, arguing that the representation of the ‘war on terror’ should be discarded in favour of a criminal justice approach (Zedner 2005) does not take into account the similarities that counter-terrorist policies share when considered from the perspective of exceptionalism. In IR, Marieke de Goede has shown that distinctions between the US pre-emptive practices and the European supposed reliance on the rule of law do not account for European policies on data retention and asset freezing, for example. These policies show Europe as a world leader in pre-emptive security policies (De Goede 2008b).
Although criminological readings have interpreted the exception through the role of the executive power at the expense of judicial power, the perspective endorsed here argues that the exception is constitutive of all law. The exception defines the existence and possibility of the functioning of the law. Law and social order depend upon a ‘founding crime’ or upon an act of war. This is the paradox of modern liberal political communities that define themselves as governed by the rule of law: the law needs a ‘founding crime’, a moment of violence or injustice—the exception—in order to function (Burke 2002; Derrida 2005). Exceptional practices are not simply irregular occurrences prompted by opportunistic definitions of threat, but are constitutive of sovereignty, modern law and political communities. For Schmitt, exceptionalism exists not only in the capacity to override the law, but also in the capacity to call the legal order into being: ‘Order must be established for juridical order to make sense. A regular situation must be created, and sovereign is he who definitely decides if this situation is actually effective’ (Schmitt 1985b: 13). Therefore, exceptional policies have constitutive effects upon society, which blur the distinction between ‘normal’ law and ‘extraordinary’ crime. Criminalization undergirds the functioning of the law, although, in practice, there will be differences in the degree of institutionalization of exceptionalism. While writings on moral panic generally invoke stages of escalation (in which there are calls for strong measures) and innovation (referring to increased powers of the police), they remain wedded to an understanding of moral panic as reflective/non-reflective rather than constitutive of social reality (Murji 2001: 174–5). Exceptions, we have suggested, are constitutive of society and of what we take to count as law and order.
Exceptionalism, moreover, turns fear of the enemy into the constitutive principle of social order. In an IR perspective, the politics of fear performs the ordering of the community. According to Jef Huysmans (2006), exceptionalism reshapes political communities in three respects: it redistributes fear and trust, it reconsiders inclusion and exclusion and it institutes a predisposition towards violence.6 Although fear of crime has been an important topos of criminological research, debates about state crimes and moral panics often ignore the ways in which exceptional policies revolving around fear feed back into society. Instead, fear has been thought to be either an emotional reaction to elements associated with crime, a political discourse of fear (Furedi 2006; Mythen and Walklate 2006a) or an ‘unconscious displacement of other fears which are far more intractable and do not display the modern characteristics of knowability and decisionability’ (Hollway and Jefferson 1997: 263). These definitions can be integrated in an analysis of moral panics as distortions or exaggerations of criminal behaviour (Rothe and Muzzatti 2004). IR scholars have argued that the construction of enemies and the governance of dangers through exceptional policies do not simply concern the identification of threats or risks, perceptions or the cultural underpinnings and meanings associated with a particular threat. Rather, the securitization of dangers is a ‘politically constitutive act that asserts and reproduces the unity of a political community’ (Huysmans 2006: 49). Exceptional policies, Huysmans (2004: 338) has argued:
... are not simply about civil liberties, the legality of going to war, and the constitutional limits to strengthening executive-centred government. Since these political, legal and social contests strongly reiterate fear of the enemy they directly bear upon the extent to which one is structuring and possibly institutionalizing fear of the enemy as the organizing principle of politics in both national and international society. The question then becomes to what extent security responses that claim to aim at protecting freedom and equality are actually displacing freedom and equality with fear of the enemy as the central principle around which politics is organized.Huysmans has expanded the conceptualization of the exception in relation to law by unpacking the matrix of liberal power as consisting of a tripartite relationship between the rule of law, political leadership and the popular will. This means that the exception is not only a question of the limits of law and the increasing role of discretion within late modern legal arrangements, but also underpins questions of political representation and of the constitution of law (Huysmans 2004). The exception allows for the arbitrary exercise of power by both political leadership and the ‘people’ and undermines the constitution of law through the ‘will of the people’. It also severs the external representative links between political leadership and the people. This raises questions not just about how the norm needs an exceptional constitutive moment, but also about how exceptional measures distort and challenge the functions of representation in liberal democracies. This approach has informed IR analyses that have revealed the continuities within liberal states of illiberal practices that stem from the exceptional governance of risks and dangers (Aradau and van Munster 2007; 2008; De Goede 2008b; Neocleous 2008). Fear integrates political communities according to friend/enemy lines and creates homogeneous identities that need to be defended. The politics of fear collapses processes of representation and unifies the ‘people’ and the political leadership. Unlike some of the criminological literature, fear is understood not as an emotion, but as a ‘particular principle of making human relations intelligible in a certain way’ (Huysmans 2006: 52).
The friend/enemy division is also constitutive of the limits of legality and political life within the state. It speaks of the possibility of modern liberal states to turn into authoritarian regimes (Walker 2006). The politics of fear thus has important consequences for the role of resistance in liberal democracies. Gordon Lafer has pointed out that policies in the ‘war on terror’ have been aimed at ‘undoing workers’ power in the workplace; pushing back against labor's growing political clout; and breaking apart the labor–community coalitions that threatened to exercise too much democratic control over capital’ (Lafer 2004: 334). From forbidding airport security personnel the right of unionization to branding as unpatriotic those workers who refused to accept wage and benefit cuts, Lafer has shown how the ‘war on terror’ has served to constantly undermine the power of the labour force and any attempts at rolling back corporate capital. Exceptional measures derived from the ‘war on terror’ are also increasingly taken against environmental activists or anti-globalization movements,7 while Prime Minister Gordon Brown has invoked the anti-terror legislation to freeze the assets of the bankrupt bank Icesave, when Iceland initially refused to compensate British customers’ lost savings as a result of the bankruptcy.8
So far, the IR debates on the exception have helped us unpack a slightly different understanding of law and crime. The very foundation of the law harbours a crime and is made possible by decisions upon enemies who are to be neutralized in order for the law to function. Decisions on the enemy are very different from the social construction of enemies in theories of moral panics. In addition to analyses of state crime and moral panics, the perspective developed here has led us to question the distinction between law, crime and war and between ‘normal’ society and extraordinary mobilization against enemies. Another element that the IR debates can bring to this dialogue is that of the specificity of the ‘international’, to which we turn in the next section.
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Exceptionalism and the ‘International’ |
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The construction of enemies is simultaneously undertaken domestically and internationally; not only are decisions upon the enemy intimately connected with the limits of law, but definitions of what counts as liberal universal law are possible through the separation of a realm of modernity and Enlightenment from the rest of world and definitions of civilization from barbarism. In this view, the exception entails important questions about how the international ‘war on terror’ is fought in conjunction with domestic policing.
The international is probably one of the most neglected dimensions in the governance of crime, having been associated with traditional inter-state relations. Generally, criminology has used the concept of ‘transnationalization’ to describe processes and practices that transgress national boundaries (Sheptycki 2005). Nonetheless, the international implies other processes of carving up the world besides the recent emergence of transnational authorities and professionals. Rob Walker has drawn attention to the role of the exception and particularly the construction of friend/enemy relations for dividing up the international. He has singled out three concepts that have been used in IR to think of the world: international, imperial and exceptional (Walker 2006). ‘International’ is the traditional concept of inter-nations, inter-states, the negotiations and commerce between states that have been often thought of in violent and war-like terms. Traditional understandings of the international have followed Thomas Hobbes's metaphor of the ‘state of nature’ as the anarchic war of everyone against everyone. ‘Imperial’ is the more recent rendering of the international as a realm no longer dominated by inimical relations between nation-states, but structured by different forms of vertical power, variously defined as neo-liberalism, globalization or empire. The ‘exceptional’ raises questions about sovereign authority internationally and which sovereign capacity has priority. Is it the sovereignty of the state, imperial or hegemonic sovereignty, or the sovereignty of democracy? Answers to these questions entail particular definitions of limits in relation to which the exception functions.
According to Walker, the exception is articulated at the supra-national level as a claim about inhumanity (those who are not yet modern or need to be helped to become modern) or about empire (the transcendence of international hegemony and the antagonisms between states to the community of humanity). ‘Construct the other as barbarian, as that which must be civilized or destroyed,’ Walker cautions, ‘and the way is open to the declaration of exceptions that affirm the suspension of modern achievements and the authorization of absolute authority, whether understood as empire or as the final victory of a singular way of being human’ (Walker 2006: 76–7). The civilizational underpinnings of exceptionalism can also be traced in Schmitt's work. In The Nomos of the Earth, Schmitt (2003) explicitly argued for upholding the plurality of states as found in the nineteenth century Jus Publicum Europaeum against what he saw as the dehumanization of the enemies of liberalism. The sovereign state integrated individuals into a political order and organized legitimate modes of authority through the staging of an external threat: ‘Every religious, moral, economic, ethical, or other antithesis transforms into a political one if it is sufficiently strong to group human beings effectively according to friend and enemy’ (Schmitt 1996: 37). Nonetheless, the construction of enemies within the European system of state remained a relation between equals, while liberal universalism pushed enemies beyond the boundaries of humanity. The enemy of liberalism, according to Schmitt, becomes equated with inhumanity and evil.
Yet, Schmitt's conservative support for a traditional inter-state rendition of the international was made possible by another exception that was functioning at the limits of the system of states. The limitation of inter-state enmity among European sovereigns depended on the representation of the colonial world as an ‘empty space’ in which wars between European states could be fought without restraint. Internationally, the exception was a space carved within the colonial global space. The loss of these territorial boundaries in the process of decolonization, the subsequent universalization of space and the emergence of humanity as a global subject reinforced Schmitt's belief that boundary drawing, the division of space or territory is the fundamental act of constituting a stable order. Exceptions were made possible by the global colonial relations of power and several scholars of international law have also argued that colonialism is the disavowed basis of modern international law (Anghie 2004; Hussain 2003). Just like domestic law, international law depends upon an exception. As Butler has formulated it:
... [law] leaves open the possibility of its own retraction, and, in the case of the Geneva Convention, extends ‘universal’ rights only to those imprisoned combatans who belong to ‘recognizable’ nation-states, but not to all people .... The Geneva convention is, in part, a civilizational discourse .... (Butler 2004, emphasis ours)Universal legal provisions do not necessarily provide a guarantee against exceptional politics enabled by colonial relations of power. The political implications of relegating enemies to the spaces of inhumanity become more explicit in Agamben's reformulation of the exception. Agamben (1998) places the decision on the enemy at the heart of the sovereign decision on the value of life: political and disqualified, abject or bare life. The decision on the exception suspends the legal order and creates a space of indistinction between norm and exception. In this zone of indistinction, the central figure one encounters is that of homo sacer, bare life stripped of all its value in the sense that violence against him/her remains unpunished. The sovereign declaration of the state of exception simultaneously creates the state of nature and the rule of law through the abandonment of life, reducing (some) subjects (e.g. in the colonial world) to bare life. The Hobbesian social contract that brings the sovereign into being masks the fact that sovereignty essentially operates through a ban: ‘The originary relation of law to life is not application but abandonment’ (Agamben 1998: 29). Agamben's reformulation of the enemy as homo sacer offers a further cautionary note against the reliance on a regime of human rights to resist international exceptionalism.
Global human rights are equated with the generalization of bare life, of life that is no longer political and can be sacrificed with impunity. Rather than a panacea for authoritarianism and discretionary power, human rights regimes are imbricated in an exceptionalism that goes beyond state boundaries. As Tony Blair has argued with respect to the twin threats of terrorism and the spread of weapons of mass destruction among non-democracies: ‘[T]hese two threats have different motives and different origins, but they share one basic common view: they detest the freedom, democracy and tolerance that are the hallmarks of our way of life’ (Blair 2003). The limits of law and social order are determined not simply within the state, but also within the system of states. In the international sphere, the limits of law and life are superposed over the limits of modernity and civilization. So-called functional states are opposed to failed or weak states. ‘Failed states’, argued the US Director of National Intelligence, are ‘terrorist safe havens and ungoverned regions that endanger the international community and its citizens’ (McConnell 2007). Indeed, the United States now regards failed states as larger threats to national and international security than great power struggle and balance of power politics.
This reading of the international dimension of the exception also has important repercussions for the governance of terror in domestic contexts in which the identification of enemies increasingly draws upon readings of modernity in the international realm. For Schmitt, the exception was constitutive of a homogeneous cultural community, whose substance can vary historically from the nation-form to that of the German Volk, but whose homogeneity gives content to the state (Müller 1997). Exceptionalism entails specifications of the enemy that relegate the latter to the category of cultural and even racial infrahumanity. Moreover, exceptions within the state and the system of states are mutually dependent, as the way the international is ‘carved up’ reflects back on how the domestic realm functions.
At first sight, the colonial/racial constitution of the international/internal would appear to be disputable for the governance of terrorism. The radical uncertainty associated with terrorism appears to undermine the cultural, nationalistic and racial rendering of friends and enemies, while biometric identifiers or body scanning appear to go beyond racial and cultural characteristics. The official Home Office report on the 7/7 London bombings points out that nothing marked out the four men involved in the attacks: they were all ‘unexceptional’ (Home Office 2006). The ‘unexceptionality’ of the enemy entails the surveillance of all the population, of all flights, for example, independent of existing intelligence, leading to a surplus supply of data and over-prediction of threats (Amoore and de Goede 2005; Levi and Wall 2004; Lyon 2002). Technologies of surveillance are indiscriminately targeted at the whole population: stop and search policies in the United Kingdom, biometric identifiers or the introduction of identity cards. Terrorist suspects can be unemployed or employed, poor or not so poor, young or old, legal residents or citizens, illegal migrants or tourists.
Nonetheless, rather than undermining cultural and racial distinctions, these elements get re-inscribed upon the technologies of governance. Profiling on the ‘objective’ basis of actual behaviour (travel records, internet searches, financial habits, etc.) often has a decidedly cultural, religious and racial bias (Amoore 2007). As Islamic financial institutions have been equated with terrorist financing, this has allowed for new modes of ‘accumulation through dispossession’ and the reintroduction of confiscated ‘terrorist’ money into the circuits of Western capital (Atia 2007). The co-existence of contradictory measures is indicative of the sovereign authority that exists at different levels: from bureaucrats to international institutions. Moreover, this co-existence allows for increased flexibility in targeting various categories of the population—some on grounds of generalized surveillance and others on grounds of statistical evidence and risk profiling.
Most importantly, the reading of the exception both within the state and within the international has allowed us to suggest that recourse neither to domestic law nor to a universal regime of human rights can counter the exceptionalism of counter-terrorist measures. Domestic and international law are dependent upon the ‘ban’ of unworthy life, life relegated to the realm of infrahumanity. Post 9/11, inhumanity is characteristic not only of the ‘enemies of the nation’ or abnormal subjects, but also of the citizens of the so-called ‘weak’, ‘fragile’ or ‘rogue’ states.
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Exceptionalism and the Future: Precautionary Risk |
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Theories of exceptionalism show that more is at stake than the state's compliance with law and human rights regimes. Not only is the very functioning of law dependent upon an extra-legal decision upon the enemies, but these decisions function at the interface of the internal and the international. Limits to the state and to the system of states combine to create a continuum of enemies that has global relevance while being re-inscribed within particular domestic contexts. Similarly, political order is constituted through fear of the enemy. Nonetheless, these elements appear to indicate an irreducible difference between IR and the analyses of risk that have informed some of the governance of crime literature. Can these differences be bridged?
Generally, criminology scholars have seen practices deployed in the ‘war on terror’ as extensions of novel modes of governing crime in neo-liberal societies of control such as the United States and the United Kingdom (Garland 2001). For Mythen and Walklate, for instance, counter-terrorist measures reflect the more authoritarian ways of dealing with crime (zero tolerance, three strikes policies and the anti-social behaviour law in the United Kingdom) present in these societies: ‘The political drift towards authoritarian populism has cut into the calculus of risk and extended crime models based on punishment and retribution’ (Mythen and Walklate 2006b: 389). For Ericson, similarly, counter-law is embedded within a neo-liberal politics obsessed with uncertainty, security and self-discipline (see also De Goede 2008a; Ericson 2007; Randy 2007). Simon (2007a; 2008), too, argues that the fear of crime has shaped the American ‘risk imaginary’ since the late 1970s. ‘In place of insurance,’ he explains, ‘violent crime has framed the prison as the model governmental technology’ (Simon 2007b: 8). Insurance becomes a matter of individual responsibility rather than societal solidarity; it functions like a market that individuals enter for the provision of their own security. Ultimately, neo-liberalism entails a shift towards private security arrangements and a rediscovery of individual responsibility.
In IR, the ‘war on terror’ has often been seen as defined by discourses and technologies that are transferred from the field of national security knowledge. The exception is linked with the deployment of sovereign power and national security. Thus, a significant part of the IR literature is concerned with the role and function of wars that have been fought as part of a global counter-terrorism strategy (Jabri 2007; Rasmussen 2006). However, the perspective on the exception developed here can indeed relate criminological and IR analyses. Arguments about the imbrication of sovereign and governmental power are not new. In the context of the ‘war on terror’, Welch (2007) has suggested, following Butler's argument, that sovereignty and governmentality have become intermingled. Butler, however, does not account for how governmentality makes possible the re-emergence of sovereignty. Rather, she takes the view that as law becomes a tactic of governmentality, sovereignty can be resurgent as also lawless—simply an ‘instrument’ that fabricates or suspends law (Butler 2004: 94).
One of the areas of further discussion between the disciplines could concern the emergence of a form of governmentality that has exceptionalism at its core. Not only has risk management become an important part of security analysis, but even questions of war and peace are, to a certain extent, decided on the basis of risk scenario and modelling future catastrophes (see Aradau and van Munster 2007; 2008). Conversely, risk technologies are seen to depend upon security decisions. Although criminologists have shown how risk management has been deployed in the international governance of terrorism in sophisticated detail, IR analyses have offered a historical understanding of the relationship between national security, social security and risk management (Aradau and van Munster 2007; Neocleous 2008).
Within the context of neo-liberal crime policing and post-Cold War redefinitions of security, the emergence and increasing circulation of catastrophic imaginaries and precautionary risk have created different conditions for the institutionalization of the exception in liberal states. The radical contingency of the future inserts the need for sovereign decisions within governmental processes. The emergence of a ‘precautionary’ element has given birth to new configurations of risk that require the catastrophic prospects of the future be avoided at all costs (Aradau and van Munster 2007; De Goede 2008a). Precautionary risk management can be seen to span the whole realm between exceptional measures and the immediacy of action on the one hand and the ordinary administrative, police or insurance measures on the other. The imagination of dangers as catastrophic and the precautionary measures needed to tackle their radical contingency—we contend—have led to a particular deployment of exceptionalism.
In Francois Ewald's (1993: 222) formulation, precaution surpasses the limits of insurance as a new rationality of risk management, as risks tend to ‘exceed the limits of the insurable in two directions: toward the infinitely small-scale (biological, natural, or food-related risk), and toward the infinitely large-scale ("major technological risks" or technological catastrophes)’. The first element of infinity that undermines the rationality of risk insurance is the catastrophic element, the grave and irreversible damage that an event can cause. The second element of infinity is that of uncertainty.9 Ewald's infinitely small or infinitely large-scale risks are both related to scientific knowledge. When knowledge is unable to define the prospect of the future, to compute its own effects upon the future, the logic of insurance is surpassed (Ewald 2002).
Despite its familiar ring, precaution can be reduced neither to traditional responsibility in the face of dangers nor to neo-liberal prudentialism. It is not a reminder of precautions that must be taken individually by entering the insurance market. Precautionary risk introduces within the computation of the future its very limit, the infinity of uncertainty and potential damage. It is therefore exactly the opposite of prudence: if the latter recommended what ‘precautions’ to take under conditions of knowledge, the former demands that we act under scientific and causal uncertainty. The future is not simply about contingency, but about catastrophic contingency. George W. Bush's description of the challenges that Iraq posed for American security is indicative for how both catastrophe and uncertainty underpin exceptional policies:
Many people have asked how close Saddam Hussein is to developing a nuclear weapon. Well, we don't know exactly, and that's the problem .... Facing clear evidence of peril [the attacks of September 11], we cannot wait for the final proof—the smoking gun—that could come in the form of a mushroom cloud .... Understanding the threats of our time, knowing the designs and deceptions of the Iraqi regime, we have every reason to assume the worst, and we have an urgent duty to prevent the worst from occurring. (Bush 2002)Catastrophe and radical uncertainty about the future change the coordinates of the politics of fear. Fear becomes intimately entwined with prospects of the future and the decision on the enemy is expanded into decisions on catastrophic contingency. In order to prevent serious and irreversible damage, precautionary risk management entails a politics of zero risks based on imaginations of worst-case scenarios.
While the modern liberal state devised ways in which to ‘tame’ the politics of fear and to transform its enemies into adversaries, the emergence of catastrophe and radical uncertainty on the political scene entails important changes for liberalism and the role of the exception. Both the politics of fear and the construction of enemies are increasingly imagined in relation to an uncertain and unknowable future. In this sense, exceptionalism becomes amplified and extended as law needs to function in relation to concrete possible events rather than project generalizable norms in the future. Thus, law is required to increasingly function in relation to a future that is not predictable. The generality of law is suspended to a higher degree than it has ever been.10 If neither the principle of fear nor the construction of enemies (both domestically and internationally) can be erased from liberal and neo-liberal governance, both appear to be amplified and expanded. Agamben's statement that the exception has become normalized can thus be nuanced by an understanding of how the politics of fear has been intensified and infiltrates more and more areas of social life.11 Confronted with precautionary risks, the politics of fear and decisions on the enemy lose their definite contours and can apply to larger and larger categories of the population. As groups of high risk can no longer be easily detected, the decision upon the enemy no longer has a basis in the other's expressed intentions or actions.
The catastrophic and radically uncertain future is translated into exceptional policies that actively seek to prevent situations from becoming catastrophic at some indefinite point in the future. As the politics of fear expand indefinitely, precautionary measures are mobilized to avoid terrorist irruptions in the future. War relies on technologies of risk management for ultimate prevention, while policing attempts to identify more and more elusive enemies. Not only are those who challenge the status quo increasingly targeted as ‘enemies’, but fear of the enemy assumes the need for the uninterrupted continuity of the present. The community of liberal states needs to be preserved against terrorist attacks—the continuity of its processes is thus one of the main assumptions of exceptional practices in the war on terror. Rendering the future as catastrophic has an intensifying effect upon the imagination of continuity. In Ewald's words, precaution ‘is concerned with ensuring the continuity of the future with the past. The precautionary principle is counter-revolutionary. It aims to restrict innovation to a framework of unbroken progress’ (Ewald 2002: 284). When allied with precautionary risk management, exceptionalism reinforces the status quo and the continuity of the present against struggles for transformation and social justice.
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Exceptionalism has been widely debated in IR, while criminology has so far largely turned to other concepts—such as state crime, moral panic or risk—to explore the ‘war on terror’. Although the criminological literature has provided many useful insights into the practices and actions deployed by states, politicians, the media and other actors, this article has argued that engaging with debates about theories of the exception and exceptionalism in IR could lead to a fruitful dialogue between the two disciplines. Introducing an argument about how the ‘war on terror’ is simultaneously transgressing and underwriting the law, this article has unpacked the state of exception as a useful tool for apprehending the constitution of domestic and global power relations. Guantánamo Bay, Abu Ghraib, extraordinary rendition, surveillance and other practices deployed in the ‘war on terror’ can all be defined as sites of exception and arbitrary decisionism that simultaneously function as the violent condition for the existence of sovereignty, law and politically qualified life. Exposing the exception as the founding crime of law, we have shown in which ways the ‘war on terror’ defines the limits of the state and the system of states.
Reading the ‘war on terror’ through the lens of exceptionalism shows that the international cannot be separated from the national in as far as domestic expressions of the enemy often rely upon international representations of modernity and progress that separate the West from the rest of the world—and vice versa. If the domestic and the international have been thought of as two domains, each requiring its own discipline, the state of exception points at their mutual dependency to the point that one could speak of inside and outside as a ‘Möbius ribbon’ (Bigo 2001). Only when the whole array of practices, discourses and institutions deployed in the ‘war on terror’ is taken into consideration, domestically as well as internationally, is it possible to get a clear sense of what kind of limits and enemies are fostered to legitimize and institutionalize domestic authoritarianism and the international division of forms of life. Moreover, whereas IR has viewed processes of enemy construction as exceptional acts related to discourses on national security, the ‘war on terror’ shows that the exception has trickled down to the more mundane technologies and strategies analysed by criminology scholars. In particular, precautionary measures at the horizon of a catastrophic future translate radical uncertainty and future catastrophe into an exceptional politics of fear that integrates the everyday, mundane practices of policing with the exceptional practices of war.
Finally, understanding the ways in which exceptionalism operates will also help critical scholarship in both IR and criminology to further discuss the deteriorating effects of the ‘war on terror’ on political communities and social transformation. It is not sufficient to claim that states exaggerate and blow up threats in order to call for measures that are more in tune with their ‘real’ magnitude. For one thing, this form of critique can generally only be made after the fact (e.g. only when we know that Iraq did not possess weapons of mass destruction, we can say anything about the actual presence of the threats). More important, however, is the insight that alternative knowledge claims will often fall on deaf ears when security policy is informed by the twin limit of scientific uncertainty and future catastrophic damage. In these cases, it is also imperative to point out the constitutive power of the exception, the fear it provokes, the enemies it creates and the profound effects it has on the ways we live as a community, domestically as well as globally.
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1 Nonetheless, for criminology, IR is often still represented as largely a traditional discipline, dominated by realist understandings of power politics and the realm ‘beyond the state’ (see, e.g. Sheptycki 2007).
2 In criminology, see Ericson (2007), Ericson and Haggerty (1997), McCulloch and Pickering (2005), Mythen and Walklate (2008), O'Malley (1992) and Simon (2007a). In International Relations, this flourishing literature includes Amoore and de Goede (2008), Aradau and van Munster (2007), Bigo and Tsoukala (2006) and Salter (2008). See also the special issue of Security Dialogue on ‘Security, Technologies of Risk and the Political’, vol. 39, nos 2/3, 2008.
3 We follow the distinction drawn by Neal (2006) between the exception (events and situations that are designated as ‘exceptional’) and exceptionalism (‘illiberal policies and practices that are legitimated through claims about necessary exceptions to the norm’).
4 See the 2005 special issue of the British Journal of Criminology on state crime. See also Rothe and Muzzatti (2004) and Mythen and Walklate (2006b).
5 Sometimes, when the ‘state of exception’ is mentioned, it is not unpacked: the contemporary politics of crime, insecurity and fear provide ideological cover for the global emergence of a ‘state of exception’ and the global body politic becomes the criminal body (Sheptycki 2007: 402).
6 At the same time, Huysmans draws attention to distinctions that have been made between forms of exceptionalism. While legal and social orders are constituted through the exception, this limit is not necessarily the same. A social democratic exceptionalism would function differently from the radically conservative exceptionalism theorized by Schmitt (Huysmans 2004). For thinkers like Franz Neumann and Otto Kirchheimer, exceptionalism could lead to a more just society, when it is propelled by claims for equality rather than the construction of enemies and the politics of fear.
7 Environmental activists have been placed on terrorist lists or detained in anti-terrorist raids.
8 See, e.g. www.politics.co.uk/news/opinion-former-index/economy-and-finance/iceland-bank-freeze-used-anti-terror-laws-$1244102.htm.
9 On governing through uncertainty, see Ericson (2007).
10 On the transformation of law under the impact of exceptionalism from the welfare state until 9/11, see Aradau (2007).
11 For a discussion about the normalization of the exception in the war on terror, see Salter (2008) and van Munster (2004).
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