Law’s knowledge: On the susceptibility and resistance of legal practices to security matters
| Published date | 01 November 2012 |
| Author | Susanne Krasmann |
| Date | 01 November 2012 |
| DOI | 10.1177/1362480612446775 |
| Subject Matter | Articles |
Theoretical Criminology
16(4) 379 –394
© The Author(s) 2012
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DOI: 10.1177/1362480612446775
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Law’s knowledge: On the
susceptibility and resistance
of legal practices to security
matters
Susanne Krasmann
University of Hamburg, Germany
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
Corresponding author:
Susanne Krasmann, Institute for Criminological Research, University of Hamburg, Hamburg, Germany
Email: susanne.krasmann@uni-hamburg.de
446775TCR16410.1177/1362480612446775KrasmannTheoretical Criminology
2012
Article
380 Theoretical Criminology 16(4)
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
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