Contagion, counterterrorism and criminology: The Case of France
| Author | Giulia Berlusconi,Claire Hamilton |
| DOI | 10.1177/1748895817751829 |
| Published date | 01 November 2018 |
| Date | 01 November 2018 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895817751829
Criminology & Criminal Justice
2018, Vol. 18(5) 568 –584
© The Author(s) 2018
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DOI: 10.1177/1748895817751829
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Contagion, counterterrorism
and criminology: The Case
of France
Claire Hamilton
Maynooth University, Ireland
Giulia Berlusconi
University of Surrey, UK
Abstract
In the burgeoning criminological literature on security, risk and preventive justice which has
followed the 9/11 attacks on the Twin Towers, ‘contagion’ or the deleterious effect of
counterterrorist policies on the ordinary criminal law has been the subject of some discussion,
mostly in the context of the threat which such ‘exceptional’ policies pose to mainstream
procedural values. This article seeks to build on this literature through an examination of the
impact of post 9/11 counterterrorism law and policy on the ordinary criminal justice system in
France. Given the extent to which counterterrorist law now encroaches on various aspects of
French criminal law, the argument is made for greater criminological attention to be paid to the
‘trickle-down’ effect of extraordinary law on the ordinary business of the criminal justice system.
Keywords
Contagion, counterterrorism, criminal justice, criminology, France
Introduction
Coming from its historical position as a discipline of the Westphalian nation state or
‘discipline of the inside’ as Loader and Percy (2012) would have it, mainstream crimi-
nology traditionally has been reluctant to engage with the terrorism field, terrorism and
Corresponding author:
Claire Hamilton, Senior Lecturer in Law, Department of Law, New House, South Campus, Maynooth
University, Co. Kildare, Ireland.
Email: claire.hamilton@mu.ie
751829CRJ0010.1177/1748895817751829Criminology & Criminal JusticeHamilton and Berlusconi
research-article2018
Article
Hamilton and Berlusconi 569
warfare being seen as more properly the domain of international relations or critical
security studies scholars (Aas, 2013). Notwithstanding much important work on the
political construction and regulation of the ‘new terrorism’ (Mythen and Walklate, 2006;
Walklate and Mythen, 2014) and a growing literature on the aetiology of terrorism (e.g.
LaFree and Freilich, 2016), this absence has been particularly keenly felt in the counter-
terrorism area (Deflem, 2009: 538). Observing this lacuna, and calling for a general
criminological theory of security, Zedner (2007a: 264) has argued that ‘the temporal shift
denoted by the war on terror poses a powerful challenge to the historic precincts of crimi-
nological scholarship. Where once terrorism and counter terrorism stood outside the nor-
mal boundaries of criminological knowledge, they now demand criminological attention.’
Couched within her broader arguments about the limitations of criminological national-
ism, Aas (2013) too has highlighted the transformative potential of transnational threats
such as terrorism for the governance of national security and justice issues, particularly
in the context of a seemingly permanent ‘war’ on terror. In similar vein, Aradau and Van
Munster (2009) urge criminology to engage with the Schmittian theory of exceptional-
ism, more commonly the preserve of the international relations field, in order to better
understand the significance of the ‘international’ and the role of the exception in under-
writing, rather than overwriting, the law. For them, viewing counterterrorism law through
the lens of exceptionalism allows a focus on the manner in which such exceptional poli-
tics of fear ‘feed back into society’ thereby ‘integrat[ing] the everyday mundane prac-
tices of policing with the exceptional practices of war’ (Aradau and Van Munster, 2009:
698).
From this somewhat slow starting point, however, criminology has moved incremen-
tally to engage with counterterrorism law and policy. Ericson’s (2007) work on ‘counter-
law’ is a case in point, employing the twin monikers of ‘Counter law 1’ (laws that
undermine other laws) and ‘Counter law 2’ (extra-legal surveillance) to capture the mul-
tiple forms of governance spawned by the security state. This work has in turn strongly
informed the pioneering research of Murphy (2012) on the impact of the vast body of EU
counterterrorism law, and particularly its implications for fundamental rights and the rule
of law. As averred to above, scholars such as Ashworth (Ashworth and Zedner, 2014) and
Zedner (2007a, 2007b, 2014) have also been active in debating the criminological impli-
cations of more general shifts from a ‘post- to a pre-crime society’ and, correspondingly,
from criminal justice to security. Defining ‘pre-crime’ measures as those which permit
the state to intervene and restrain an individual on the basis of anticipated harm rather
than past wrongdoing, the relevance to (now familiar) counterterrorism measures such as
control orders/terrorism prevention and investigation measures (TPIMs) and the crimi-
nalization of association and preparatory offences is evident. Indeed, it is clear that the
catastrophic risks posed by terrorism post 9/11, and the concomitant pressure to action,
have acted as a significant spur to pre-emptive governmental action in the field of crime
control more generally (Zedner, 2007b). This new security/justice landscape, with its
blurring of familiar distinctions between politics and justice, war and crime, evidence
and intelligence, is only beginning to be negotiated by criminologists in the past decade
(Aas, 2012; McCulloch and Pickering, 2009).
Implicit within much of this work is a concern for the normalizing impulses of coun-
terterrorist law, and thus its migration to other substantive domains. While recognizing
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