Law’s knowledge: On the susceptibility and resistance of legal practices to security matters

Abstract

Contrary to the prevailing debate on the governance of security with its focus on emergency and exception, a Foucauldian perspective enables us to capture how law transforms in a rather gradual and unnoticed manner. As a practice, law constitutes itself through knowledge. Relying upon knowledge, it is notoriously susceptible to security matters. This will be illustrated by analysing the rationality of pre-emptive action that is facilitated by automated surveillance technologies. Taking a recent torture debate as an extreme example elucidates that a conception of law as practice also serves as a tool of critique and articulating dissent.

Keywords

Foucault governing security governmentality knowledge production legal theory

Introduction: containing security government

Our political world today cannot be imagined without law. Law authorizes and regulates governmental action, in particular the resort to force. With the rule of law and a considerable range of citizens’ and human rights, the civilized world prides itself on having established a regime of stability and a framework for claiming one’s rights. Remarkably, across different models of either rather centralized or pluralist environments of democratic authority, political crises, particularly in the face of terrorist threats since the 1970s, have been managed preferably within the normal statutory process, rather than by proclaiming a state of emergency (see Ferejohn and Pasquino, 2004: 215; Poole, 2008: 5–9). Nevertheless, social scientists and legal scholars articulate the concern that security is seizing more and more political space. Criminologists even see their subject field increasingly mirrored by Steven Spielberg’s movie version of Phillip K. Dick’s (2002) Minority Report. The movie depicts a dystopia of prospective offenders being incapacitated pre-emptively far in advance of the offenders’ own anticipation of their future crimes. A ‘pre-crime logic’, as designated by the British criminologist Lucia Zedner (2007: 262), aims at ‘forestalling risks’ and seems to compete with, if not take precedence over, the traditional modes of policing and prosecution ‘responding to wrongs done’. What is at stake here then is a qualitative shift as regards the threshold of intervention in the name of security. In terms of classical legal principles, the precondition for activating the security apparatus no longer seems to be the breach of a norm by an actual offence nor an imminent threat or a reasonable suspicion. Rather, security government is increasingly concerned with anticipating abstract risks and diffuse threats that are subsequently to be attributed to particular social groups or enemies. Pre-emption is one mode of dealing with threats that comes into play here. Originating in strategic military thinking (Freedman, 2004), this rationality now seems to also assert itself in criminology’s subject field. Pre-emption differs from well-established forms of prevention in penal law and criminology in the dynamic it unfolds of actions to be taken. Being focused on abstract and presumably imminent threats, this rationale is interventionist and inventive.¹

In the face of these developments, a new debate on how to contain governmental interference in the name of security has emerged. What is remarkable about this debate is that, on the one hand, it aims at establishing more civil and human rights and attendant procedural safeguards that allow for systematically calling into question the derogation of laws and the implementation of new laws in the name of security. On the other hand, it recognizes the existence of a new dimension of threats, particularly in the aftermath of the terror attacks of 11 September 2001. As John Ferejohn and Pasquale Pasquino (2004: 228), for instance, contend:

We are faced, nowadays, with serious threats to the public safety that can occur anywhere and that cannot terminate definitively. … If we think that the capacity to deal effectively with emergencies is a precondition for republican government, then it is necessary to ask how emergency powers can be controlled in modern circumstances.

Adequate legal frameworks and institutional designs are required that would enable us to ‘reconcile’ security with (human) rights, as Goold and Lazarus (2007b: 15) propose, and enduring emergency situations with the rule of law.

Traditional problems in the relationship between law and security government within this debate form a point of departure of critical considerations:² emergency government today, rather than facing the problem of gross abuses of power, has to deal with the persistent danger of the exceptional becoming normal (see Poole, 2008: 8). Law gradually adjusts to what is regarded as ‘necessary’.³ Hence, law not only constrains, but at the same time also authorizes governmental interference. Furthermore, mainstream approaches that try to balance security and liberty are rarely able, or willing, to expose fully the trade-offs of their normative presuppositions: ‘[T]he metaphor of balance is used as often to justify and defend changes as to challenge them’ (Zedner, 2005: 510). Finally, political responses to threats never overcome the uncertainty that necessarily accompanies any decision addressing future events. To ignore this uncertainty, in other words, is to ignore the political moment any such decision entails, thus exempting it from the possibility of dissent.

Institutional arrangements that enforce legislative control and enable citizens to claim their rights are certainly the appropriate responses to the concern in question, namely that security gradually seizes political space and transforms the rule of law in an inconspicuous manner. They establish political spaces of dispute and provide sticking points against all too rapidly launched security legislation, and thus may foster a ‘culture of justification’, as David Dyzenhaus (2007) has it: political decisions and the exercise of state power are to be ‘justified by law’, in a fundamental sense of a commitment to ‘the principles of legality and respect for human rights’ (2007: 137). Nonetheless, most of these accounts, in a way, simply add more of the same legal principles and institutional arrangements that are well known to us. To frame security as a public good and ensure that it is a subject of democratic debate, as Ian Loader and Neil Walker (2007) for example demand, is a promising alternative to denying its social relevance. The call for security to be ‘civilized’, though, once again echoes the truly modern project of dealing with its inherent discontents. The limits of such a commitment to legality and a political ‘culture of justification’ (so termed for brevity) will be illustrated in the following section. Those normative endeavours will be challenged subsequently by a Foucauldian account of law as practice. Contrary to the idea that law can be addressed as an isolated, ideal body and thus treated like an instrument according to normative aspirations, the present account renders law’s reliance on forms of knowledge more discernable. Law is susceptible, in particular to security matters. As a practice, it constantly transforms itself and, notably, articulates its normative claims depending upon the forms of knowledge brought into play. Contrary to the prevailing debate on emergency government, this perspective enables us, on the one hand, to capture how certain forms of knowledge become inscribed into the law in a way that goes largely unnoticed. This point will be discussed on the example of automated surveillance technologies, which facilitate a particular rationality of pre-emptive action. The conception of law as a practice, on the other hand, may also be understood as a tool of critique and dissent. The recent torture debate is an extreme example of this, whereby torture can be regarded as a touchstone of law’s resistance to its own abrogation.

Law and reasoning

The idea that a political and juridical ‘culture of justification’ would be able to bring about the desired results should be treated with caution—for one thing, with regard to the particular logic of legal reasoning and justification and, for another thing, because of at least two empirical observations that shed light on law’s limitations vis-a-vis the governance of security. First of all, the establishment of a ‘culture of justification’ itself presupposes what has yet to arise, namely a common concern about governmental encroachment in the name of security and a willingness of all parties to join in that discourse, if not share in its related arguments. This presupposition, to be sure, is indispensable for inspiring communication and facilitating the exchange of arguments. Moreover, in order to take effect the tried and true liberal legal principles, like that of proportionality and necessity, clearly need to be concretized by reasoning about actual cases. Yet, the assumption of a common concern goes hand in hand with a general trust in a form of communicative reason that will allow for transparency eventually on the matters at stake. Reason and to reason within ‘a transparent, structured process of analysis to determine what degree of erosion is justifiable, by what measure, in what circumstances, and for how long’ (Zedner, 2005: 522), is considered basic to the solution. However, just as legal norms and principles are open to interpretation, they do not determine any normative orientations underlying the interpretative process. As Benjamin Goold and Liorna Lazarus (2007b: 11; see also Poole, 2008: 16) observe: ‘[P]re-emptive measures designed to increase security can never be truly objective or divorced from our political concerns and values.’ Typical for the acknowledgement of competing claims still to be weighed (Zedner, 2005: 508), therefore, is that they end up being couched in a rather appealing rhetoric (‘we should’, ‘judges should’). In a liberal vein, this requires a resorting to the least intrusive measures. Competing claims are thus relegated to the normative framework of balance (see Waldron, 2003; Zedner, 2005: 528).

As regards the empirical observations, there is, first, a move in security legislation that is noticeable in western countries in which the threshold of governmental intervention has been gradually disposed in order to forestall actual offences, concrete suspicion and danger. 9/11 may be regarded as a catalyst here, as well as the fight against terrorism in general. But rather than being recent phenomena, these transformations in fact represent a continuity over decades in the identification of ever new dimensions of threats, from sexual offenders and organized crime right up to transnational terrorism.⁴ Although a tendency can be discerned, this is not to suggest that there have not been any disruptions to it. Civil and human rights organizations have time and again countered these developments, and so have higher-court rulings. Even new basic rights have been established.⁵ Though successful, these processes were unable to thwart the general trend of making private space accessible to surveillance in a way that would have been unimaginable decades ago. In this sense, paradoxically, new basic rights are rather indicators of new spaces of vulnerability. A closer look at higher courts’ decisions on security legislation and additional recommendations by human rights bodies suggests that these lead to the amendment of the laws in question but not necessarily to a change in practice. ‘For, as law becomes ever more closely intertwined with a proliferating assemblage of expertise, risk consulting, administration, and discretion, it inhabits an inescapable paradox’, as Louise Amoore (2008: 849) neatly put it. Law for civil and human rights activists and lawyers is the very medium for challenging governmental encroachment, and, notably, the ‘rule of law’ represents the very principle to be defended. Under review, however, law encounters its own legislation—the modes of risk management it once itself authorized, and that will now have to be amended in accordance not only with the principles of the rule of law but also with the identified necessities of security government.

Second, even though much security legislation has been passed in recent decades, human rights regimes have become very influential, as well (Snacken, 2010). Today, it may be a matter of course that law first of all has to be appropriated and rights have to be claimed (Douzinas, 2007). We have learned the lesson from Hannah Arendt’s (1951) insightful analysis into the failure of human rights when those rights only counted for those who already disposed of them instead of those millions of stateless refugees who were badly in need of them while seeking asylum during the Second World War. Nonetheless, some telling proof that the implementation and amendment of human rights and related institutions does not guarantee their realization and improvement is found in, among other things, the fact that ‘black sites’ could have been established as far as into the 21st century, exposing terror suspects to the exercise of sheer and arbitrary force of security and military agents (Mayer, 2008); that renditions, that is the illegal extradition of terror suspects into third countries where they will probably be tortured, could have been undertaken systematically, before and in the aftermath of 9/11, and not only by the USA but by European states as well;⁶ and, finally, that camps detaining migrants exist between the borders of states and far away from any possible access to law. Moreover, even though these forms of violent exclusion fundamentally contradict civilized democracies’ claims to treating their enemies humanely and lawfully, they are at the same time being legally authorized. Rather than disappearing in ‘legal black holes’ (Steyn, 2004), emergency measures are, in an irony of the law, subject to conclusive legal regulation (Aradau, 2007).

Analysing legal practices and their knowledge

The norm itself does not stipulate its application, Giorgio Agamben (2005: 40) contends. As a symbolic abstraction that stands apart from actual, or ‘real’, concerns and practices, the norm can exist independently of its enforcement. On the basis of this observation, Agamben extrapolates the nature of the state of exception. The exception is not exterior to, but rather an integral element of the law. It is ‘the rule’ that, while ‘suspending itself, gives rise to the exception’ (Agamben, 1998: 18), the norm thus ‘applies by ceasing to apply’. It is suspended without being abolished. Deprived of its force, it instead gives way to ‘a pure force’ that disregards the norm (Agamben, 2005: 40). Whereas Agamben’s theory is illuminating in view of contemporaneous processes of the exception becoming normal, thus leading to an erosion of the rule of law, it has been criticized for conceiving of these mechanisms a-historically. Law sees itself deprived of the possibility of being thought of in terms of social forces and political dissent (Huysmans, 2008).

What is more, conceiving of law in a Foucauldian vein as a practice in a way reverses Agamben’s perspective. It enables us to focus on forms of knowledge constantly shaping positive law. Foucault is not famous for having elaborated a comprehensive theory of law. Critics have attributed this fact to Foucault’s allegedly underestimating law’s political and social relevance, most notably on the grounds of his analysis of governmental knowledge intruding into or invading the law.⁷ Still, it is precisely this figure of thought that has led the author to quite insightful observations on how forms of power and law interact, which the present account seizes on.⁸ Hence, Foucault (2008: 34) elaborates how criminological expertise by the end of the 19th century turns out to be a ‘practice of veridiction’ that in the name of empirical knowledge claims to speak the truth about the delinquent. Criminological veridiction not only challenges the early liberal conception of penal ‘jurisdiction’ that limited its focus on the criminal act. Moreover, it provokes the emergence of a variety of new procedures aimed at transforming the offender which in turn have to be regulated in legal terms (Foucault, 2000a). Foucault then may have abstained from developing a theory of law for at least two reasons. On the one hand, he identified law itself as a governmental tool and mode of subjectification. It is the moral and normative authority of law that renders governmental power acceptable; and it is the ‘juridical form’ that allows for the governed to articulate dissent as well as to be subjected to these democratic modes of participation (see Foucault, 1978: 144, 2008: 321). On the other hand, Foucault’s theoretical reluctance is quite consistent with his analytical account in general that did not aim at formulating grand theories nor rely on concepts and definitions with a determinate meaning (Valverde, 2010). Instead, Foucault studied particular phenomena within their historically and locally specific contexts. He preferred to develop his method and theory of study out of the subject itself, thus accounting for both the subject’s singularity and the conditions of its emergence (Foucault, 1991). Social phenomena cannot be isolated from and are indeed only decipherable within the practices, procedures and forms of knowledge allowing them to surface as such. In this sense, ‘all phenomena are singular, every historical or social fact is a singularity’ (Veyne, 2010: 11). This, in turn, also involves that those forms of knowledge are intrinsically relational in a nominalistic sense. They are indissoluble from the possible experiences of their time (Macherey, 1992).

Law is not ‘antecedent to power’, as Mariana Valverde (2010: 55) rightly observes—as nothing, in a Foucauldian perspective, is antecedent to power, even power itself. Power is not a substance that exists before being exercised. Rather, it effectuates as a force in the very moment of addressing its subject that simultaneously marks a point of resistance (Foucault, 2000c). It is the ‘contact point’ (Foucault, 1993: 203) where power takes shape and materializes, gaining its drive. It may be distracted but also well be incited and intensified. Similarly, law needs to be enacted in the first place in order to be able to make its own claims. It is in this sense that law is to be analysed in relational terms.⁹ It is only conceivable as a practice, presenting itself in the forms and in the moment of its materialization. Law therefore is not comprehensible as a whole nor is it predictable, since law’s action is never merely a reaction (Douzinas, 2000; Foucault, 1987). Its invocation is always an invocation of law’s modes of codification and knowledge. For the same reason, law can never be a mere instrument of power. It ‘eludes encapsulation by power’ (Golder and Fitzpatrick, 2009: 79) precisely because it is indissoluble from the forms of knowledge that enact it and that its enactment invokes.

The notion of governmentality (Foucault, 2007, 2008) most clearly elucidates these figures of thought, as it is concerned with the question of how modes of thinking translate into practices, procedures and technologies and thus render reality conceivable and manageable (see Gordon, 1980: 248). Rationalities of government are in themselves relational. They depend upon our assumptions about the nature of a problem and our subsequent assessment of suitable means. Rather than reducing the classical governmental question to a simple relationship of adequate means and aspired ends, the assessment of what counts as rational varies with the assumptions about both. It depends on how the problems in question are being addressed and defined in the first place. The same holds for the law. The nature of the problem a legal argument is about centres on the concepts we have in mind. Instead of being ideologically inspired and resting on individual discretion (Kennedy, 2008), these concepts are rather implicit forms of social knowledge. Like social imaginations (Taylor, 2002), they are neither due to explicit doctrines nor are they merely ‘embodied knowledge of habitus’ (Calhoun, 2004: 377). With a Foucauldian perspective this concept shares the idea that any form of thinking, and imagination, itself is a form of practice. Thinking of ‘the Law’ in ideal terms, as designed to contain governmental interference or to provide citizens’ rights, for example, is thus always a form of practice. There is no abstraction, as John Law (2009: 2) insists: ‘Abstraction is always done in some practice or other.’ Equally, there is no ‘Law’ as ideal, other than we think of the law and we enact the law while thinking of it as ideal.

Rationalities, or modes of thinking, do not simply programme reality (see Miller and Rose, 2008: 39). Rather, they translate into technologies (Bröckling et al., 2010). Technologies of government in turn produce certain truths and modes of seeing things. They do not merely address and describe their subject, as if this existed as such before being accessed. They constitute it. There is, in this sense, no transparency. Legal reasoning first and foremost produces a normative reality. Any enforcement of law, in turn, also invokes certain forms of knowledge. Technologies produce their own truth effects, they facilitate certain rationalities of action. Knowledge, in the present context then, is neither merely a question of meaning and representation nor is it about the alternative between truth and delusion. It is about the production of truth, and about practices and action, modes of thinking and perception.

Two analytical implications of this account of law are relevant for the present context of scrutinizing law’s normative authority vis-a-vis security matters. Law, on the one hand, may be analysed in relation to the problems and subjects that technologies render visible in a particular mode. This will be relevant in the following section that inquires how risk technologies shape the law. On the other hand, this account provides us with a critical perspective, as the example of the recent torture debate will demonstrate, for it dissolves the common binary thinking that distinguishes between the validity of a norm on a symbolic level and related governmental practices.

Anticipatory technologies and the creation of suspicion

Relying upon certain techniques and procedures of anticipating dangers and threats, security government exposes a particular relationship with knowledge: any form of averting dangers entails uncertainty and therefore a productive or speculative moment. It requires dealing with an unknown and, at the same time, presumably threatening future. Preventing harm thereby aims at having certain facts not eventuate at all. Action has to be taken before danger materializes. A danger is to be anticipated, even if it is difficult to conjecture. The unknown has to be approached and assessed in order to render it accessible, both in the sense of being intelligible and manageable (Aradau and Van Munster, 2011). The identification of threats, thus, may be understood as a form of dividing the known from what is unknown and what is to be known (see Kessler and Werner, 2008: 290)—even though no clear demarcation here is possible. Anticipation rests upon experience, that is, on what is known from the past. And our imagining the unknown future reflects back to the present. It governs our presumptions on adequate or inadequate measures, and our activities. Ethics and the governance of security, as Peter Burgess (2011: 4–5) has pointed out, follow a similar rationale. They are both about a gap, between what is and what should be, and between what is (to be) known and what is (radically) unknown. In the face of threats, an ‘ethics of uncertainty’ and an ‘epistemology of the unknown’ intermingle indissolubly—and to this extent denude the political moment within law.

It is, paradoxically, the state of uncertainty that enables security matters to be implemented in opposition to legal norms. Indications of dangers or threats have to be taken seriously, while these threats at the same time are difficult to dispute, because they escape determination. This is all the more the case, the more abstract the danger or threat and the greater the expected harm is. The identification of catastrophic risks therefore is subjected to a rationality of pre-emption. It requires threats to be averted before they have a chance to emerge, and action to be taken before the addressed threat is even intelligible. This, in turn, means creating knowledge and producing indicators that provide clues on where and how to act. This creation of knowledge, however, never dispenses with uncertainty (Ewald, 2002). Law that is designated to regulate and restrict governmental interference therefore sees itself confronted with the ‘veridiction’ of a threat that can neither be ignored nor simply disputed. This is particularly the case with automated knowledge techniques that are designated to gather and generate risk indicators, and related practices of surveillance and policing (Harcourt, 2007; Hildebrandt and Gutwirth, 2008).

By assembling certain knowledge techniques, practices and procedures, anticipatory technologies unfold their own rationalities of action and create their own truth effects. On the basis of anonymous digitally sorted data, these technologies, first, abstract from concrete individuals. They create rather ‘dividuals’ (Deleuze, 1995). As criteria of risk that are inscribed into automated screening and targeting technologies, particular patterns of behaviour, appearance or association to a certain group may thus already provide a basis for suspicion, independently of any actual acts. Technically generated suspicion in this sense reverses the notion of ‘innocent until proven guilty’ (see De Goede, 2008: 109; McCulloch and Carlton, 2006: 404). Second, the data and information these technologies provide are difficult to dispute. Whereas indicators of threat vary along with distributions of risk, the technical and virtual processes themselves are rather opaque (see Lyon, 2007; Merry, 2011: 84).¹⁰ Moreover, as technically generated, empirical knowledge, ‘categorical identities’ are less negotiable compared to social identities. Indicators like gender, income, educational background and bodily features, which are codified as biometric data like eye colour, finger prints and so on, are apparently able to issue their own verdict, as security authorities tend to take them as empirical facts (see Aas, 2004: 386). Third, data mining and screening techniques for automatically targeting people—like video cameras that are able to recognize ‘suspicious’ movements—not only aim at clarifying, but generate and distribute suspicion. In contrast to the classic police concept of averting a manifest danger, the task here is not only to render visible what has not yet been discovered, but, most notably, to anticipate what is as yet unknown. Hence, by automatically comparing heterogeneous data and identifying particular combinations as being suspicious, these anticipatory techniques do not merely screen data according to predefined norms. They constitute norms (Amoore, 2007). While they are not necessarily pre-emptive in themselves, they create knowledge that allows for pre-emptive action, and, in this way, may also affect the rule of law.

Measures like preventive detention, ‘blacklisting’ and asset freezing,¹¹ or denying access to a country on the basis of—among other forms of intelligence gathering—automated risk modelling (forming an integral component of the US border protection programme, for example) typically ‘operate in place of, and in advance of the legal thresholds of evidence and decision’ (Amoore, 2008: 850). To the extent that they are being authorized by higher court rulings with the imposition of some procedural amendments, the mode of generating suspicion and legitimization for encroachment on the basis of indicators, rather than actual acts, becomes inscribed into the law. As a consequence, the targeted persons’ access to law tends to be relegated to a defensive position, as the recent European Court of Justice’s ruling on blacklisting and asset freezing, according to Marieke De Goede (2011), exemplarily reveals. A person or an organization that has been subject to a backlist order is not accused of a criminal act and therefore does not benefit from the due process rights that are part of a trial. The reasons and evidence of suspicion are kept secret. The person concerned may, however, become aware of the listing if they are denied the opportunity to board a flight, refused entry to a country or have their accounts frozen. As a consequence of having a frozen asset order cut them off from existential resources needed to participate in normal social life, the targeted person may litigate their cause. The European Court demanded that there be an amendment to the European Union regulations in place for implementing UN Security Council decisions that specifically addressed ‘the right to be heard, and the right to effective judicial review’.¹² The Court, nonetheless, principally recognized the practice itself as legitimate and a legal measure in the war on terror.

The question of whether legislation and adjudication lead to an infringement or a transformation of the rule of law is a relational issue, but by no means arbitrary. Within discursive theory (Staeheli, 2004), the anticipatory techniques that produce knowledge on threats may be regarded as being located at law’s exterior. From here, they enter into a productive relationship with the law. By appropriating these as its own knowledge, ‘law shapes the world that it then claims to adjudicate’ (Valverde, 2003: 6). The exterior may also constitute law’s other, in the sense of a counterpart, once related surveillance practices lead to disavowing law’s own basic principles, which were inscribed, for example, at a certain historical moment into a constitution. It may not be easy always to demarcate the respective turning point. And it may be taken as a matter of further debate whether the recent development in western countries, in which the threshold of governmental intervention in the name of security has been gradually moved in order to forestall actual offences and danger, constitutes such a disavowal. Nevertheless, analysing the recent torture debate, which will be the subject of the following section, exposes similar transformative mechanisms with regard to the law. The debate, notably, equally rests upon and operates with the claim to take today’s existential threats seriously.

Torture as law’s other? A practice beyond the symbolic

Torture, today, may be understood as signifying law’s other, since after the Second World War its prohibition gradually came to constitute an absolute norm of national and international law. Conceiving of law as a practice that is intrinsically bound to historically specific forms of knowledge, brings the precarious, historically and contextually dependent validity of legal norms to light. Although being an absolute norm, the prohibition of torture has been challenged anew recently. In the name of security and with the alleged aim of fighting terrorism, the Bush Administration particularly invented ways, in disregard of international jurisdiction, to narrow and modify the legal definition of torture in such way as to eventually inscribe torture into the law.¹³ Furthermore, a fundamental debate has been launched, notably by legal scholars, that favours the legitimacy if not legalization of torture under certain circumstances.¹⁴ This debate shares a concern with the discourse on emergency government in general about a new dimension of threats, particularly in the face of transnational organized terrorism. While purportedly upholding the absolute prohibition, Oren Gross (2004: 107), nonetheless, points to an exception and thus echoes a familiar argument: ‘However in truly catastrophic cases the appropriate method of tackling extremely grave national dangers and threats may call for going outside the legal order, at times even violating the absolute prohibition on torture.’

The torture debate does not reduce to the exchange of ‘rational arguments’, as the normative discourse theory has it. Involved is a rhetoric that incites the imagination of threats and the audience’s affects so as to challenge the absolute prohibition. The ‘ticking bomb’ scenario is a common rhetorical figure which literally enacts the threat: a person in police custody knows the hiding place of a ticking bomb that threatens to kill many people, and yet the person remains stubbornly silent. This leads to the overt moral message: wouldn’t you yourself torture this person, if it could save lives? This scenario has been widely recognized as a highly improbable, artificial construction that only gained more currency after 9/11 (see Waldron, 2005: 1713–1714). The point, however, is exactly this: in order to realize fully its suggestive power, the scenario does not need to get it right. As a scene that may be perceived and re-imagined in analogous situations, it incites affects (see Görling, 2011: 25). Consequently, a threat that by its nature ‘is unknowable’ (Massumi, 2005: 35), since it has not yet materialized, becomes real. It is imaginable as a real constellation. It may be transformed into articulatable feelings, political claims or consent. Moreover, by adding a moral component that allegedly contradicts legal norms, the rhetorical figure paves the way for the inconceivable to intrude into legal thinking. To put it in terms of systems theory: the moral argument here is being rendered perceptible to the law in a way that is compatible with the modes of legal codification (Luhmann, 1993).

A ‘culture of justification’ would, in this context, at once meet and miss the point. By systematically questioning the normative and empirical assumptions of the suggestive rhetorical figure it aims at destroying the affect in question. But it will not be able to challenge the argument once affective politics has done its work, so that a threat indeed appears to be grave, imminent, evident and so on. Furthermore, implementing legal safeguards in order to render a practice transparent does not necessarily lead to the desired result, either, for it also means invoking the law and subsequently allowing the law to make its own claims. Subjecting a banned practice to judicial overview by a warrant that establishes procedural restrictions, as proposed in the torture debate (Dershowitz, 2004), may well render a procedure visible and, in this sense, controllable. At the very same moment, however, torture would be institutionalized as a practice that now, under certain circumstances, would be considered lawful and acceptable, disregarding its absolute prohibition. Oren Gross’s (2004) alternative conception of torture as a declaredly exceptional and ‘extra-legal’ measure that ex post would have to be submitted to an inquiry does not make a principle difference here. To think officially the unthinkable as a possible option is the same as to admit and facilitate it.

Common arguments like these rest upon the rather implicit presupposition, following a venerable sociological tradition, that the question of the validity of a legal norm will be decided primarily on a symbolic level. This account is quite plausible with regard, for example, to penal law. Since the symbolic is the representation of an absence, it is not necessary that each offence actually be prosecuted and punished in order to assert the norm in question and the reliability of the legal apparatus.¹⁵ Rather, it is important to communicate the message, which in turn also requires that the performance of trials or acts of punishment, or some equivalent, must not be neglected. In a similar vein, a sociological account sees the validity of a legal norm first of all manifesting itself on a symbolic level. The validity depends on the belief that the norm is being abided by, rather than on whether this is actually the case. This account, however, allows for arguing that torture as an exception would not affect the law at all, whether it be in the form of an extra-legal practice (Gross, 2004) or a warrant (Dershowitz, 2004); it suggests that we tolerate a clandestine practice rather than have an open debate on torture’s legitimacy (Žižek, 2002); and it even indirectly approves the practice of outsourcing torture. These approaches, while upholding the norm symbolically, help to keep the practice off the public stage. Taken by itself, the legal norm is being recognized, but this does not mean that the norm will actually be respected. On the contrary, it is the discrepancy between the absolute ban on torture, on the one hand, and the persistence of torture as a practice that states have always resorted to in the name of their own defence (see Kahn, 2008: 76), on the other, that obviously calls the symbolic account of law into question. Within a conception of law’s validity that becomes manifest on a symbolic level, incidents of torture can be dismissed as exceptions, so long as the general belief about governments and security authorities (or legal scholars) sticking to the norm can be cherished. This, however, is exactly what designates the state of exception, in Agamben’s (2005: 40) sense: the ‘pure force’ of law with ‘a norm whose application has been suspended’.

With the conception of law as practice, the problem appears in a different light: torture as a practice indeed eludes the law which, by itself, is incapable of containing it. But this does not mean that the practice does not affect the law. Torture forms law’s other in that it is its negative constituent. The legal ban on torture was reinforced after the Second World War, but the Universal Declaration of Human Rights in 1948 and the subsequent implementation of international conventions against torture, most notably the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, coming into force in 1987, should not be considered merely as a progress in the history of human rights. They are, instead, a response to the catastrophic experience of the political and humanitarian catastrophes of the 20th century, marking a rupture with the presumed process of civilization (Menke and Pollmann, 2007). The devastating force of torture has become social knowledge. In this sense thought of as an ‘archetype’ (Waldron, 2005) of a legal norm, torture marks the end point of a range of practices that fundamentally contradict society’s self-understanding of how to treat fellow human beings. Torture is able to destroy its victims, as well as societies that pursue and tolerate this practice. As the other of law’s order, torture is nevertheless able to invade the law and, moreover, transform or even destroy the rule of law. Torture as a practice is at the same time a practice of the law. It expresses and manifests, and thus brings to light, how we understand—and practice—the legal norm. The absolute norm may be questioned and abrogated, but its erosion would also amount to society’s self-dissolution in the form that it once understood and constituted itself.

This is perhaps something that Foucault wanted to tell us with his scepticism about a blind belief in law’s normative force: to apprehend law as practice literally means that the burden is on everyday citizens to invoke the law and to claim their rights (Foucault, 2000b). If law eludes encapsulation by power, the same holds for resistance. Law is an instrument of articulating dissent, though only in the moment of our actually doing it (Rancière, 1998), and only if we take justice as a promise of law that is always yet to come (Derrida, 1990).

Footnotes

Notes

Susanne Krasmann is Professor of Sociology at the Institute for Criminological Research, University of Hamburg. Much of her recent work has been on issues of ‘governing security and the rule of law’.

References

Aas

(2004) From narrative to database. Punishment & Society 6(4): 379–393.

Agamben

(1998) Homo Sacer: Sovereign Power and Bare Life. Stanford, CA: Stanford University Press.

Agamben

(2005) State of Exception. Chicago, IL: University of Chicago Press.

Amoore

(2007) Vigilant visualities: The watchful politics in the war on terror. Security Dialogue (Special Issue on Securitization, Militarization and Visual Culture in the Worlds of Post-9/11) 38(2): 215–232.

Amoore

(2008) Risk before justice: When the law contests its own suspension. Leiden Journal of International Law 21: 847–861.

Anderson

(2010) Preemption, precaution, preparedness: Anticipatory action and future geographies. Progress in Human Geography 34: 1–22.

Aradau

(2007) Law transformed: Guantánamo and the ‘other’ exception. Third World Quarterly 28(3): 489–501.

Aradau

Van Munster

(eds) (2011) Politics of Catastrophe: Genealogies of the Unknown. London and New York: Routledge.

Arendt

(1951) The Origins of Totalitarianism. New York: Harcourt Brace.

10.

Bröckling

Krasmann

Lemke

(2010) From Foucault’s lectures at the Collège de France to studies of governmentality—an introduction. In: Bröckling

Krasmann

Lemke

(eds) Governmentality: Current Issues and Future Challenges. New York: Routledge, pp. 1–33.

11.

Burgess

(2011) The Ethical Subject of Security: Geopolitical Reason and the Threat against Europe. New York: Routledge.

12.

Calhoun

(2004) A world of emergencies: Fear, intervention, and the limits of cosmopolitan order. Canadian Review of Sociology and Anthropology 41(4): 373–395.

13.

Danner

(2004) Torture and Truth: America, Abu Ghraib, and the War on Terror. New York: New York Review of Books.

14.

De Goede

(2008) Risk, preemption and exception in the war on terrorist financing. In: Amoore

De Goede

(eds) Risk and the War on Terror. London and New York: Routledge, pp. 97–111.

15.

De Goede

(2011) Blacklisting and the ban: Contesting targeted sanctions in Europe. Security Dialogue 42: 1–17.

16.

Deleuze

(1995) Postscript on control societies. In: Negotiations. New York: Columbia University Press, pp. 177–182.

17.

Derrida

(1990) The force of law: ‘The mystical foundation of authority’. Cardozo Law Review 11(5–6): 919–1046.

18.

Dershowitz

(2004) Tortured reasoning. In: Levinson

(ed.) Torture: A Collection. Oxford and New York: Oxford University Press, pp. 257–280.

19.

Dick

(2002) The Minority Report. London: Pantheon.

20.

Díez

CG-J

(2008) Enemy combatants versus enemy criminal law. New Criminal Law Review 11(4): 529–562.

21.

Douzinas

(2000) The legality of the image. Modern Law Review 63: 813–830.

22.

Douzinas

(2007) Human Rights and Empire: The Political Philosophy of Cosmopolitanism. Abingdon, Oxford and New York: Routledge-Cavendish.

23.

Dyzenhaus

(2007) Deference, security and human rights. In: Goold

Lazarus

(eds) Security and Human Rights. Oxford and Portland, OR: Hart, pp. 125–156.

24.

Ericson

(2007) Crime in an Insecure World. Cambridge and Malden, MA: Polity.

25.

Ewald

(2002) The return of Descartes’s malicious demon: An outline of a philosophy of precaution. In: Baker

Simon

(eds) Embracing Risk: The Changing Culture of Insurance and Responsibility. Chicago, IL and London: University of Chicago Press, pp. 273–301.

26.

Ferejohn

Pasquino

(2004) The law of the exception: A typology of emergency powers. International Journal of Constitutional Law 2(2): 210–293.

27.

Foucault

(1977) Discipline and Punish: The Birth of the Prison. Trans. Sheridan

. London: Allen Lane.

28.

Foucault

(1978) The History of Sexuality, Volume 1: An Introduction. Trans. Hurley

. New York: Pantheon.

29.

Foucault

(1987) Maurice Blanchot: The thought from outside. In: Foucault/Blanchot. New York: Zenon Books, pp. 7–58.

30.

Foucault

(1991) Questions of method. In: Burchell

Gordon

Miller

(eds) The Foucault Effect: Studies in Governmentality. Hemel Hempstead: Harvester Wheatsheaf, pp. 73–86.

31.

Foucault

(1993) About the beginnings of the hermeneutics of the self. Political Theory 21: 198–227.

32.

Foucault

(2000a) Truth and juridical forms. In: Faubion

(ed.) Power: Essential Works of Foucault 1954–1984. New York: New York Press, Vol. 3, pp. 1–89.

33.

Foucault

(2000b) Confronting governments: Human rights. In: Faubion

(ed.) Power: Essential Works of Foucault 1954–1984. New York: New York Press, Vol. 3, pp. 474–475.

34.

Foucault

(2000c) The subject and power. In: Faubion

(ed.) Power: Essential Works of Foucault 1954–1984. Trans. Hurley

Rabinow

Gordon

. New York: The New Press, Vol. 3, pp. 326–348.

35.

Foucault

(2003) Society Must Be Defended: Lectures at the Collège de France, 1975–76. Trans. Macey

. New York: Picador.

36.

Foucault

(2007) Security, Territory, Population: Lectures at the Collège de France, 1977–78. Trans. Burchell

. Hampshire and New York: Palgrave Macmillan.

37.

Foucault

(2008) The Birth of Biopolitics: Lectures at the Collège de France, 1978–79. Trans. Burchell

. New York and Hampshire: Palgrave Macmillan.

38.

Freedman

(2004) Deterrence. Cambridge: Polity.

39.

Frerichs

(2010) Zwischen Gerechtigkeit und Wahrheit: Das Rechtssubjekt in der Marktgesellschaft. Zeitschrift für Rechtssoziologie 31(2): 231–250.

40.

Garland

(2010) Peculiar Institution: America’s Death Penalty in an Age of Abolition. Cambridge, MA and London: The Belknap Press of Harvard University Press.

41.

Görling

(2011) Affekt und Politik: Zum Verhältnis von Folter und Zukunft. In: Görling

(ed.) Die Verletzbarkeit des Menschen: Folter und die Politik der Affekte. München: Fink, pp. 9–46.

42.

Golder

Fitzpatrick

(2009) Foucault’s Law. New York: Routledge.

43.

Goold

Lazarus

(eds) (2007a) Security and Human Rights. Oxford and Portland, OR: Hart.

44.

Goold

Lazarus

(2007b) Introduction. Security and human rights: The search for a language of reconciliation. In: Goold

Lazarus

(eds) Security and Human Rights. Oxford and Portland, OR: Hart, pp. 1–24.

45.

Gordon

(1980) Afterword. In: Gordon

(ed.) Michel Foucault: Power/Knowledge: Selected Interviews and Other Writings. Brighton: Harvester, pp. 229–259.

46.

Greenberg

(ed.) (2006) The Torture Debate in America. Cambridge: Cambridge University Press.

47.

Greenberg

Dratel

(eds) (2005) The Torture Papers: The Road to Abu Ghraib. Cambridge: Cambridge University Press.

48.

Gross

(2004) Are torture warrants warranted? Pragmatic absolutism and official disobedience. Minnesota Law Review 88: 101–175.

49.

Harcourt

(2007) Against Prediction: Profiling, Policing and Punishment in an Actuarial Age. Chicago, IL: University of Chicago Press.

50.

Hildebrandt

Gutwirth

(2008) Profiling the European Citizen: Cross Disciplinary Perspectives. Dordrecht: Springer.

51.

Human Rights Watch (2005) Still at risk: Diplomatic assurances no safeguard against torture. [Report] 17(4) (D), April.

52.

Huysmans

(2008) The jargon of exception: On Schmitt, Agamben and the absence of political society. International Political Sociology 2(2): 165–183.

53.

Kahn

(2008) Sacred Violence: Torture, Terror, and Sovereignty. Ann Arbor, MI: University of Michigan Press.

54.

Kennedy

(2008) A left/phenomenological alternative to the Hart/Kelsen Theory of Legal Interpretation. In: Legal Reasoning: Collected Essays (Contemporary European Cultural Studies). Aurora, CO: Davies, pp. 154–173.

55.

Kessler

Werner

(2008) Extrajudicial killing as risk management. Security Dialogue 39(2–3): 289–308.

56.

Krasmann

(2007) The enemy on the border: Critique of a programme for the preventive state. Punishment & Society 9(3): 301–318.

57.

Law

(2009) Collateral realities. 29 December. Available at: http://www.heterogeneities.net/publications/Law2009CollateralRealities.pdf.

58.

Levinson

(ed.) (2004) Torture: A Collection. Oxford/New York: Oxford University Press.

59.

Loader

Walker

(2007) Civilizing Security. Cambridge: Cambridge University Press.

60.

Luhmann

(1993) Gibt es in unserer Gesellschaft noch unverzichtbare Normen? In: Heidelberger Universitätsreden. Heidelberg: CF Müller, Vol. 4, pp. 1–32.

61.

Lyon

(2007) Surveillance Studies: An Overview. Cambridge and Malden, MA: Polity.

62.

Macherey

(1992) Towards a natural history of norms. In: Armstrong

(ed.) Michel Foucault Philosopher. Hemel Hempstead: Harvester Wheatsheaf, pp. 176–191.

63.

Massumi

(2005) Fear (the spectrum said). Positions 13(1): 31–48.

64.

Mayer

(2008) The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals. New York: Doubleday.

65.

McCulloch

Carlton

(2006) Preempting justice: Suppression of financing of terrorism and the ‘war on terror’. Current Issues in Criminal Justice 17(3): 397–412.

66.

Menke

Pollmann

(2007) Philosophie der Menschenrechte zur Einführung. Hamburg: Junius.

67.

Merry

(2011) Measuring the world: Indicators, human rights, and global governance: With CA comment by Conley JM. Current Anthropology 52(S3): 83–95.

68.

Miller

Rose

(2008) Governing the Present: Administering Economic, Social and Personal Life. Cambridge: Polity.

69.

Poole

(2008) Constitutional exceptionalism and the common law. LSE Law, Society and Economy Working Papers 14. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1269271.

70.

Ramraj

(ed.) (2008) Emergencies and the Limits of Legality. Cambridge: Cambridge University Press.

71.

Rancière

(1998) Disagreement: Politics and Philosophy. Minneapolis, MN: University of Minnesota Press.

72.

Snacken

(2010) Resisting punitiveness in Europe? Theoretical Criminology 14(3): 273–292.

73.

Staeheli

(2004) Competing figures of the limit. In: Critchley

Marchart

(eds) Laclau: A Critical Reader. London: Routledge, pp. 226–240.

74.

Steyn

(2004) Guantánamo Bay: The legal black hole. International Comparative Law Quarterly 53: 1–15.

75.

Taylor

(2002) Modern social imaginaries. Public Culture 14(1): 91–124.

76.

Tomlins

(2007) How autonomous is law? Annual Review of Law and Social Science 3: 45–68.

77.

Valverde

(2003) Law’s Dream of a Common Knowledge. Princeton, NJ: Princeton University Press.

78.

Valverde

(2010) Specters of Foucault in law and society scholarship. Annual Review of Law and Social Science 6: 45–59.

79.

Veyne

(2010) Foucault: His Thought, His Character. Cambridge and Malden, MA: Polity.

80.

Waldron

(2003) Security and liberty: The image of balance security and liberty: The image of balance. Journal of Political Philosophy 11(2): 191–210.

81.

Waldron

(2005) Torture and positive law: Jurisprudence for the White House. Columbia Law Review 105(6): 1681–1750.

82.

Zedner

(2005) Securing liberty in the face of terror: Reflections from criminal justice. Journal of Law and Society 32(4): 507–533.

83.

Zedner

(2007) Pre-crime and post-criminology? Theoretical Criminology 11(2): 261–281.

84.

Zedner

(2009) Security. London and New York: Routledge.

85.

Žižek

(2002) From Homo sucker to Homo sacer. In: Welcome to the Desert of the Real! Five Essays on September 11 and Related Dates. London: Verso, pp. 83–111.