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The Permanent State of Exception and the Dismantling of the Law: Jean-Claude Paye’s Global War on Liberty (part 1)

The following review will soon appear in Telos, and we are presenting it here on the Telos Press blog in three installments. Jean-Claude Paye’s Global War on Liberty is available in our store.

Jean-Claude Paye. Global War on Liberty. Trans. James H. Membrez. New York: Telos Press, 2007. Pp. 261.

The state of emergency exists for the long term. It emerges as a new type of political system, dedicated to defending democracy and human rights. . . .  [T]he citizen must be willing to renounce his/her concrete freedoms for a lengthy period of time in order to maintain a self-proclaimed and abstract democratic order. [1]

Belgian sociologist Jean-Claude Paye has collected several of his recent essays about the suspension of the rule of law, the emergence of a permanent state of exception, abuses of authority, and the generalized condition of restriction of freedom in Western societies since 9/11 in a single volume, La fin de l’état de droit, now translated, updated, and published by Telos Press under the title Global War on Liberty. [2] Paye’s essays over the past five to six years have positioned him as one of the leading critical voices of the post-9/11 era. His critique of the so-called democratic state—from the United States to Europe—and of the transformation of liberal systems of constitutional governance into police, military and security orders actually had been initiated before 9/11. [3] Unfortunately most social, political, and legal theorists (particularly in the English-speaking world) paid little attention to Paye’s incisive reflections prior to the terrorist attacks in the United States. The recent translation of some of his texts into English has given Paye’s scholarship the visibility it deserves. With the publication of Global War on Liberty, Paye finds a place among the critical theorists who must be read if one is to make sense of, carefully reflect upon, and devise challenges to the contemporary condition of state abuse, imperial domination, and proliferation of daily insecurities.

To be sure, a lot has been written about this post-9/11 generalized state of exception, and about its many social and cultural effects. New anti-terrorism laws in the United States, Great Britain, and the European Union, the placing of certain groups of individuals outside the law (terrorists, enemy combatants, suspect airline passengers), the creation of exceptional procedures of containment, detention, and interrogation by government agencies, an ongoing and intensified regime of police surveillance inside Western societies, and the launching by the American state of a global war against terror have been and continue to be the object of various publications, essays, journal articles, and newspaper editorials. Several of these interventions have sought to apply political theoretical insights derived from the thought of philosophers like Carl Schmitt, Hannah Arendt, Michel Foucault, or Gilles Deleuze in order to make sense of “our” current history. [4] Others have chosen to take advantage of recent events or policies to figure out how contemporary practices can speak to existing theory. [5] In a way, Paye’s Global War on Liberty seeks to achieve similar objectives. The volume does contain theoretical reflections derived from Schmitt and Agamben on recent measures and practices. It also offers several empirical chapters that detail minute aspects of anti-terrorist laws in various Western countries. Thus, Paye’s Global War on Liberty could be read (far too superficially, however) as yet another text on the politics of domestic and international securitization that accompanies the implementation by governments of measures of protection against terrorism.

But such a reading of Paye’s work would miss what I think is the key contribution of Global War on Liberty to contemporary discussions on the state of the law, society, and political order. Global War on Liberty is not like any other critical study that seeks to take stock of the current condition of state control and its disastrous outcomes for democratic possibilities. It is not so because its mode of argumentation precisely consists of going beyond the point where many of those currently fashionable critical studies take us. Whereas many of these studies have left us with the realization that the state of exception in the making is in fact a new norm, a state of permanence (and, of course, such a critical insight is essential, but perhaps a bit obvious by now), Paye takes this particular realization as the very point of departure for his own reflection. The state of exception created by emergency laws and other extra-constitutional decisions and actions in Western societies is indeed a permanent condition, the starting point for new types of normalization practices and ways of thinking. Again, other critically inclined thinkers (Agamben, Badiou, Hardt and Negri, Harvey, and so on), in their own fashion, have said as much. But, in a way, this is all they have said. For them, the analysis need not go any further. By contrast, Paye believes that, after one has declared that exceptional measures are not just to be seen as cases of Schmittian sovereign decisionism anymore (which would be premised upon the ability to insert arbitrary but temporary measures to better restore the law eventually) but that they are the points of origin for a new modality of sovereign governance, one still has a lot of critical work to perform. One must still detail what the principles, structures, and rules of formation of this new form of government, this new political order, as Paye puts it, are and how they operate. For Paye, this critical investigation into the beyond of the state of exception as a new permanent condition requires a prolonged, detailed, meticulous, and case-by-case examination. Here, grand theory is no longer sufficient, as Paye reveals that the devil is very much in the details of this developing post-constitutional domain of power, governance, surveillance, and control. Although Paye never spells this out, the implication here seems to be that, if there are to be resistances to this new regime of disciplinization and suppression of individual liberties, these challenges (or their proponents) had better be able to know what they are facing rather than assume that prior instruments of social and political critique will do the job against the newly implemented measures and policies.

At this critical juncture, past the point of no return for the contemporary state of exception, Paye also suggests that one cannot simply assume that a deep critique of the American post-9/11 system of regulation of terror/insecurity will suffice (with the related assumption that other national or regional cases of exceptional order will necessarily wish to replicate the U.S. paradigm). In fact, and this is another crucial insight offered by Paye, some European national models of “exceptionally permanent” social/political governance (the British and French models in particular) did come up with some of the new ideas, principles, and applications (about surveillance, police work, or summary detentions), now attributed to the United States, before the 9/11 attacks. [6] Thus, a meticulous excavation of the documents or statements that form the basis of this new social/political order must start with singular cases. It must consist of what, with Foucault’s help, one might be tempted to call an “archeology” of the present. [7] This is precisely how Paye initiates his analysis, with a succession of closely studied national and regional cases, and with an emphasis placed on the texts of these new “laws,” executive decisions, directives, or sometimes, simply, explanations provided for actions already undertaken by various governmental agencies (police, military, intelligence) outside of existing legal frameworks. Only subsequently, once the “archeological work” has been performed, can the critical analysis move (from the particular insights) to more general principles that, Paye intimates, will have revealed themselves through the cumulative examination of the cases. It is only at that point in Paye’s analysis, after the detailed situations have been considered in their singular aspects (but also always keeping in mind the larger context of the global war on terror), that grand theory is allowed to return. And even when it does return, toward the end of Global War on Liberty, Paye is not always successful in locating a theoretical language that can speak to the new durable condition of exception.

Continue to part 2


1. Jean-Claude Paye, Global War on Liberty, trans. James H. Membrez (New York: Telos Press, 2007), p. 2.

2. Jean-Claude Paye, La Fin de l’ État de Droit (Paris: La Dispute, 2004).

3. Jean-Claude Paye, Vers un État Policier en Belgique? (Brussels: EPO Publishers, 2000).

4. See, for example, Julian Reid, “Deleuze’s War Machine: Nomadism against the State,” Millennium: Journal of International Studies 32 (2003): 57–85; Michael Hardt and Antonio Negri, Multitude: War and Democracy in the Age of Empire (New York: Penguin, 2004); François Debrix, Tabloid Terror: War, Culture, and Geopolitics (New York: Routledge, 2007); Michael Dillon, “Governing Terror: The State of Emergency of Biopolitical Emergence,” International Political Sociology 1 (2007): 7–28; and Derek Gregory, “Vanishing Points: Law, Violence, and Exception in the Global War Prison,” in Derek Gregory and Allan Pred, eds., Violent Geographies: Fear, Terror, and Political Violence (New York: Routledge, 2007), pp. 205–36.

5. See, for example, Alain Badiou, Infinite Thought: Truth and the Return of Philosophy, trans. Oliver Feltham and Justin Clemens (London: Continuum, 2003); David Harvey, The New Imperialism (Oxford: Oxford UP, 2003); Judith Butler, Precarious Life: The Powers of Mourning and Violence (London: Verso, 2004); Slavoj Žižek, Iraq: The Borrowed Kettle (London: Verso, 2004); and Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: Univ. of Chicago Press, 2005).

6. See Paye, Global War on Liberty, pp. 87, 170.

7. Michel Foucault, The Archaeology of Knowledge, trans. A. M. Sheridan (New York: Pantheon, 1972).

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