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The Permanent State of Exception and the Dismantling of the Law: Jean-Claude Paye’s Global War on Liberty (part 3)

This is the final 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 2 is here. The review will soon appear in full in the journal.

Searching for an Adequate Theoretical
and Critical Language

There is much to be admired in Paye’s path-breaking reflection on the nature of a new normative order that comes to life after the implementation of a permanent state of exception. And he must be congratulated for taking seriously what so many others have only announced, imagined, or theorized, and for performing the painstaking “archeological” work of uncovering the basic rules of formation of the new political regime that hides behind legal exceptionality. Still, towards the end of Global War on Liberty, Paye’s inability to provide a more innovative and thought-provoking critical conclusion is disappointing. Instead, Paye needlessly insists on retrieving the ideas of dictatorship and totalitarianism, as if those concepts could provide a grand conceptual finale to his study. Closing with these obsolete political concepts and labels does not do justice to the originality of Paye’s contribution and potentially diminishes its value. But there are two other errors that become obvious at the end of Global War on Liberty, and they are hard to reconcile with the rest of Paye’s analysis. First, Paye assumes that he has to situate his work alongside the theoretical tradition on the state of exception that encompasses the writings of Schmitt, Agamben, and Hardt and Negri (theorists whom he frequently cites in the last chapters of his book). Relating reflections on the suspension of the law to these theorists’ texts is a trendy move to be sure, but it is also one that may lead to a theoretical and critical dead-end (because these texts never go as far as Paye goes) and that Paye does not need to make. Second, Paye likewise feels the need to connect the singular analyses of the cases he has performed in Global War on Liberty to the larger explanatory context of a U.S.-based global mode of imperialism, as if this American imperialism were the ultimate rationality that could make sense of it all. As Paye puts it: “Thus, the American executive power exercises world sovereignty. It is the American executive that sets the boundaries between the norm and the exception and inscribes the latter into the law” (212). The problem is that the larger explanatory context of U.S. imperialism is never coherently presented by Paye. It is sometimes hinted at in the text, but its possible linkages to the specificities of the new normative order that Paye uncovers are never described. Instead, this final reference to an overwhelming U.S. imperialism is forcefully and arbitrarily inserted into the text. But it is clearly external to Paye’s analysis; it comes from another explanatory framework.

These three problems found towards the conclusion of Paye’s book are unfortunate errors of conceptual formulation. But they are also symptomatic of the fact that Paye’s reflections and explorations have entered a domain of legal, social, and political analysis that has yet to find a proper critical language. Paye does want contemporary legal, social, and political practice to speak to theory. But, as I emphasized in this essay, the critical terminologies and conceptual perspectives that have been provided by thinkers of the contemporary condition of global terror are no longer sufficient. As is indicated by Paye’s misguided conceptual moves towards the end of his book, the crucial shortcoming of these critical languages and theoretical perspectives is that they all have a tendency to insist on highlighting the presence of a global/imperial police state or sovereign that would hold the keys to the entire transnational edifice of terror, exception, and suspension of the laws. Much of the current regime of oppression and coercion, according to these critical formulations (even those that hide behind poststructural covers), can be explained by the dominant presence of a centralizing structure, an evil power, or an all-controlling master-agent (whether they call it Empire, the sovereign, the U.S. government, or American ideology). Thus, behind the veils of their at times clever and compelling analyses, these theoretical studies have recourse to a vertical model of understanding power, control, surveillance, or imperialism. I believe that Paye falls into this trap, too, by assuming that verticality, hierarchy, and linear connectivity ultimately have to define or characterize structures, systems, and agencies that oppress, terrorize, imprison, and attack.

But at least in Global War on Liberty, this “verticality trap” becomes obvious to the reader. It becomes obvious because Paye’s study of the new elements of social control and political power shows us that, rather than presenting itself as a top-down configuration, the biopolitical or biopoliced sovereignty of the contemporary state or empire actually operates on the basis of principles of horizontality, dispersion across space, and governmentalized propagation of procedural/formal effects. The force of the new system of law/political order resides in the capacity of a few agents (the police, the military, intelligence agencies) to restrict or enlarge the national jurisdictional domain as they see fit, as is expedient or efficient for the implementation of their own techniques of management of populations. The violence of the new law depends upon extending measures of arrest, interrogation, detention, rendition, and war across states and societies, through borders, to new zones of exceptionality and insecurity, to new plausible situations of danger and terror, and to newfangled clusters and categories of (always already captured) live forces or human bodies. The structure of the new order of exception is not hierarchical and totalitarian, then. It is rather open (to all spaces), plural (anybody can be a subject of the biopoliced system), and rhizomatic (it does not depend upon a rooted center of command but, instead, sovereign centrality and decisionism are consequences of it).

Thus, the images of the war machine and the police force as guarantors of a non-law that is always already normative everywhere (although it is expressed or felt nationally, locally, and at the level of coerced bodies) and, in its procedural indeterminacy, applies to all and nobody in particular, possibly suggest that a theoretical perspective and a critical language that would not be tied to notions of verticality, hierarchy, and centrality of command but, instead, would entertain the possibilities of regulation and management through plurality and propagation, of ordering through flexible borders and a smoothening of space, and of violence through disparate, capillary, and governmentalized arrangements and techniques of biopolice work, may be better candidates for the kind of conceptual background Paye is looking for. I would suggest that certain theoretical insights borrowed from Foucault and Deleuze may be more promising options for the critical language Paye’s analysis seems to call for. Put differently, it is to these kinds of theoretical preoccupations with governmentalized capillarity [10] or with proliferations of functional machines and techniques assemblages across smoothened territories [11] that Paye’s original perspective seems to speak. And it speaks to them not because these theories can finally find in Paye’s explorations and reflections an apt material or practical application, but because Paye’s text offers a way of engaging, probing, pushing, and reformulating these important theoretical and critical modes of argumentation (something that other contemporary critical studies on exceptionality and the law still tied to the “verticality principle” have not done successfully, even if they tried to mobilize Foucault’s and Deleuze’s thoughts). Even though Paye is not yet fully aware of these critical theoretical possibilities, it is nonetheless the path that his Global War on Liberty traces for us and encourages us to follow.


10. See Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979); Foucault, “Society Must Be Defended.”

11. Gilles Deleuze and Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia, trans. Brian Massumi (Minneapolis: Univ. of Minnesota Press, 1987).

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