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The Permanent State of Exception and the Dismantling of the Law: Jean-Claude Paye’s Global War on Liberty (part 2)

This is the second part of a review of Jean-Claude Paye’s Global War on Liberty, recently published by Telos Press Publishing and available in our store. Part 1 of the review is here, and part 3 is here. The review will soon appear in full in the journal.

Beyond the Suspension of the Law

Paye writes that “the rule of law becomes increasingly formal, not only because its content, the protection of private life and the defense of individual and public liberties, turns out to be very limited, but also by the practical possibility offered to the executive power to free itself completely from the last safeguards of legal order” (34). He adds: “The strengthening of the executive relative to the other powers makes possible the general and permanent suspension of the law. It is the instrument for setting up a state of exception” (34). For Paye, the state of legal/constitutional exception implemented in most Western democracies is not about a temporary suspension of the law, one that might guarantee a preservation of existing democratic principles in countries like the United States, Great Britain, France, Belgium, Italy, or the European Union in general (the cases that Paye spends his time detailing in Global War on Liberty). More importantly, it is also more than a suppression of democratic legal and judicial systems, and of the individual rights that these normally guarantee, that would become a new rule of permanence, a new long-lasting condition of suspension of the rule of law, whereby politics could become the product of a succession of ad hoc decisions made by government officials and bureaucrats (as Agamben and others have intimated). Paye does mention that the generalized regime of suspension of the law in Western democracies allows states’ executive powers to remove legislative and judicial prerogatives from the decision-making process, thus further enabling governments to monopolize all legal and constitutional powers (making the laws, implementing and enforcing the laws, and deciding on the judicial validity of the laws all at once). This could amount to a replacement of liberal democratic systems with totalitarian or dictatorial modes of political order. Paye does recognize that this often appears to be what the current system is about. And, on several occasions throughout the text, Paye feels compelled to refer to the new order in the making as a dictatorship or as a totalitarian system. But this conclusion is too hasty and incomplete. In fact, it cannot be substantiated by the analysis that Paye himself conducts in Global War on Liberty.

Indeed, more than an insertion of totalitarian or dictatorial rule into Western democracies through the many instances of suspension of the law, what Paye’s text reveals is that this suppression of the law gives way to the creation of a new normative system (one for which there may not be any appropriate political vocabulary yet). As Paye puts it, the generalized state of exception “breaks new ground by modifying the very form of the state” (34). Or, as he adds later on, “this morphing of the legal order is significant . . . [because] it lays the foundations of a new kind of political regime” (61). Today’s permanent state of emergency/exceptionality ushers in a new legal system and, more importantly for Paye, it announces a new political order, one that reshuffles the logic of social action and scrambles the relationship between the state and the citizen. Paye’s analysis demonstrates that the contemporary condition is not just a return to totalitarianism or dictatorship (his temptation to fall back onto those terms notwithstanding). Or, at the very least, what we commonly take to be totalitarianism will have to be reconsidered to match the contemporary circumstances.

What is crucial here, both in the new policies that have been adopted and in Paye’s language, is the passage from the idea of the suspension or even dismantling of the law to the notion of a “morphing” (his own word) of the entire legal order. Indeed, the new permanent system of exceptional normativity that is being constructed in many Western countries facilitates summary decisions and arbitrary removals of individual rights and public freedoms by the sovereign (“he who decides on the exception,” as Schmitt famously put it), or by various branches of the executive power. It enables a power of interpretation (of the political situation, the suspected risk or danger, or the meaning of the new laws) by governmental officers to become the only possible point of reference of the law for individuals living under such regimes, the always variable and contingent expression of rights and obligations for the citizen (in this sense, it recalls Kafka’s argument in The Trial [8]). But, and this is what distinguishes Paye’s original contribution from previous studies, what allows all law-making and law-interpreting prerogatives to be exclusively shifted towards the state’s executive or the government is not the presence of the sovereign per se, its centrality or accumulation of constitutional powers. It is not the institution of an authority that now would reside entirely in the sovereign’s decisionistic capacities. It is, rather, the crafting of a legal order that is permanently here, yet always in the making, even before the sovereign’s decision on the exception is rendered. This new legal order does release an arbitrary decisionistic power of the state’s executive. But this order is also prior to all the sovereign measures taken by this executive or government. This is the reason why, as Paye shows us in his volume, it really does not matter who occupies the position of power, which member of the government or executive command structure possesses a capacity of interpretation or action, and in which nation, country, or even region of the globe this new legal totalitarianism (if we must still call it totalitarianism) takes place. In fact, as Paye implies, it probably does not fundamentally matter whether a country has been attacked by terrorists or not, as this (morphed) model of legal and political order always operates at the level of potentiality, plausibility, and precaution (27, 33). Operating on the assumption that some catastrophe may take place at any moment in a given society, the newly established legal regime permanently triggers a sovereign’s interpretation, decision, and subsequent action (often as a limitation of basic freedoms).

Procedure and Police Work

But what could form the basis, the structuring force, of this morphed legal order, of that normative substrate that, as Paye puts it, “legalizes the executive’s self-proclaimed judicial powers” (61)? According to Paye, more than some (Schmittian) sovereign decisionism (which, as we have seen, is only a consequence of this model), two essential elements are needed to realize the transition to this local, national, or regional, yet all-encompassing and possibly transnational in some of its effects and objectives, legal order. The first basic component of this developing normative system is an emphasis on procedure over substance. Paye writes that “[I]f the intervention of the law is increasingly present everywhere, it is expressed in the form of the procedure, so that it is possible to speak of a ‘proceduralization’ of social relations” (222). What the (new) laws/measures actually stipulate, who they will affect, how they will deprive individuals of rights or violate previous constitutional safeguards is secondary, probably irrelevant, as long as the process or chosen method of achieving a set (but generally vague) result—control, command, surveillance, security, victory—is respected. Of course, a law that bases itself on procedures, that is in fact nothing but a series of procedural stipulations, and that is made to constantly fluctuate as new techniques (of arrest, conviction, adjudication, internment, interrogation, coercion, defense, and military attack) are produced and taken to be the norm, deprives itself of any standard (moral, judicial, or institutional) against which it could be evaluated and that could keep it in check. Instead, a legal order that is strictly procedural makes and unmakes its own standards as it goes along, as it covers more and more political terrain, and as it regulates more and more social relations. Thus, according to this legal or rather procedural framework, if it appears that the law changes every time the state’s executive or sovereign makes a new decision, it is in fact because the normative basis of the (new) system cannot accommodate anything other than a succession of constantly revised, fine-tuned, or transformed techniques and procedures. The vaguely formulated objectives of such procedural measures are incidental and come after the fact, once the rules are already in place. Thus, the sovereign’s task is far more to find a way of connecting the new procedures to (the pretense of) a final purpose, to an overall justification, than it is to actually actively decide on the ultimate goal and, on that basis, invent appropriate laws. Put somewhat differently, the functional or formal fullness of the law (or its substantive emptiness) is for Paye what determines most normative, and further political and social, priorities in (seemingly) democratic states today. As Paye argues (but perhaps with too much emphasis on the autonomy of the government still): “The law is no longer what delimits the prerogatives of the government, but, on the contrary, what eliminates any barrier to its activity. The legal order becomes the symbolization of non-law” (100). Nevertheless, this so-called non-law, or rather this procedural order, forms the basis of the present condition of permanent exceptionality.

Transforming democratic legal orders into procedural ones does require some agency. If, as Paye intimates, sovereign decisionism is not the basis of the current system of exception but, rather, its consequence, and if a different (formal, functional, technical, and process-driven) normative order is the precondition for today’s mode of totalitarian power over society, some agents or actors with a capacity to enforce procedures are still needed for the maintenance of the system. This is the point where a second fundamental element in the making of the new normative order emerges. Governmental institutions that previously were in charge of guaranteeing the respect of the rule of law and the preservation of the democratic social order now become endowed with an additional, more fundamental (to the functioning of the system) mission. Indeed, Paye asserts that the police and the military in Western societies become the two essential agencies of this contemporary regime of durable, possibly endless, exception. The police and the military are agents who make possible the application of the new law as a purely procedural and formal normative structure (their arbitrary and summary actions make sure that procedure/process is followed). Consequently, they also enable the implementation of the sovereign executive’s decisionistic force. As Paye repeatedly mentions, the police and the military embody the “pure violence” of the new legal system (87). In a sense, these two institutions—and more importantly their agents (the police forces and the warriors)—operate in a purely (because procedurally limitless) sovereign fashion, and they do so even before the newly constituted powers of interpretation and decision of the state’s executive can be instituted. In Global War on Liberty, Paye does not have much to say about the role of the military (despite the book’s somewhat misleadingly translated title). But his sustained emphasis on the actions of the police is compelling. For example, Paye notes that “[t]he weakening of the judiciary and its subordination to the police, an increasingly autonomous part of the executive, is a structural element in the extinction of the form of the rule of law” (182). Paye’s careful examination of the growing autonomy and expansion of police operations throughout the Western world (surveillance, arrests, and collection of private information without warrants, cooperation with intelligence services, investigations and interventions without judicial approval outside existing national borders, sharing of data and resources between various national police forces beyond existing international treaties, and so on), most of which was already in place before 9/11, leads him to conclude that, “in the absence of any control, be it judicial, legislative, or executive, there is an increasing autonomization of police operations at the national, European (Europol), or world levels. This process places the police at the center of the structures of the national state” (183). By establishing procedures (often investigative, criminal, and punitive) that constitute the legal system, the police steers society towards new organizational frameworks and categories of life/living. It sets up formal and functional foundations of social and cultural existence/being whereby anyone in society, at any moment, can become (in fact, is always potentially) a subject of the anti-terror, anti-danger, anti-crime, and anti-dissent regulations that the government will implement (if nothing else, to provide some appearance of substance or justification to the police procedures). The police forces are thus crucial to the new legal system but, more importantly for Paye, to the new political order. The police function ensures the end of the social and assumes a “hegemonic function through [its] mobilization of the population in the implementation of security policies” (186). Once again with Foucault’s assistance, one could say that Paye makes us aware of the passage from biopolitical sovereignty to bio-policed normative orders. [9] The power to make or produce life, to put to efficient uses the live forces of the nation, and to mobilize society around active disciplinary, coercive, criminal, and security procedures is now the primary (sovereign) task of the police (just as it is also the primary role of the military outside the state’s borders, in the context of the war on terror). Again, the rest of the governmental functions, and in particular the power of interpretation of the head of the executive, are secondary. The sovereign and its decision on the exception are the fortunate beneficiaries of the normative groundwork of procedural biopolitical reorganization performed by the (bio)police. This is once again why, as I intimated above, totalitarianism and dictatorship can no longer help us to make sense of the current condition of legal exception and abuse of authority. In an age when the biopolice and its mastery over procedure are in charge of the “mobilization of the population” (as Paye puts it), the executive power, or “he who decides on the exception,” is no longer central or hegemonic. Rather, the executive’s “sovereign” centrality or hegemony is merely derivative of the boundless operations, actions, and determinations carried out by a few procedural agents (police officers and warriors in particular).

Continue to part 3

Notes

8. See Franz Kafka, The Trial, trans. Willa and Edwin Muir (New York: Schocken Books, 1995).

9. See Michel Foucault, “Society Must Be Defended”: Lectures at the Collège de France, 1975–1976, trans. David Macey (New York: Picador, 2003).

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