Summary and Keywords
When Guenther Jakobs introduced the concept of “enemy criminal law” (Feindstrafrecht), or enemy penology, into the legal debate, this was due to a concern with the increasingly anticipatory nature of criminalization in German legislation in the last decades of the 20th century. Against the backdrop of a series of terror attacks in the West and the ensuing debates on how to deal with the dangers and threats of the new millennium, Jakobs’s theory gained new momentum in Germany’s public discourse and beyond. As it seems, the author himself turned the concept into a device for political intervention, declaring the notion of the enemy as indispensable for dealing with certain extreme crimes and notorious offenders, not only to prevent future crime and avert harm from society but also, and most notably, to preserve the established “citizen criminal law” (Bürgerstrafrecht): the enemy is the one to be isolated and excluded from the system. Enemy criminal law may be a peculiar legal concept. The logic of enemy penology, however, leads us to some more fundamental insights into the conundrums of liberal political thinking and attendant legal conceptions. It requires us to think about the enemy as a liminal figure that points to the preconditions and the paradoxes of our legal system. The history of criminology attests to the discipline’s struggle with penal law’s inherent limitations. And if we live today in times where exception and rule, internal security and external security, and military and police concerns increasingly overlap and intermingle in the face of ever new threats, the notion of enemy penology helps us to critically reflect on the mechanisms that drive these transformations.
The Concept of Enemy Criminal Law—and Its Theoretical Affiliates
The enemy is actively opposed: “unfriendly or hostile” to someone or something.1 He is not just an adversary who is part of the common order—and not just the foreigner who can move from one order to another. As phenemonologist Bernhard Waldenfels (2012, p. 311) contends, the enemy is always placed on the other side: he is excluded from the common order and figures as its other. As the one who is seen as a threat to that order, the enemy may be ill-treated, with the utmost hostility. Hostility, however, often strikes back. It tends to corrupt a political system that seeks to defend itself by establishing, provoking, fostering, or even taming a hostile relationship (see Geulen et al., 2002).
The concept of “enemy criminal law” (Feindstrafrecht), coined by the German legal scholar Guenther Jakobs (1985), speaks to a similar concern: namely, the corruption of the legal system by increasingly anticipatory forms of criminalization that mostly act against an undeclared enemy. The enemy is the dangerous individual who persistently disrespects the law, and anticipatory criminalization is a helpless response to this phenomenon, according to Jakobs. At stake is nothing less than the erosion of core liberal legal principles, as punishment precedes actual harm and thereby tends to be disproportionate and circumvent procedural safeguards (see Gómez-Jara, 2008, p. 531). Enemy penology thus betrays the law’s claim to be rational, or reliable.2
The rationality of considering the criminal as the dangerous individual is not new. It is an essential part of the history of criminology as a discipline dedicated to getting the delinquent who was said to be a danger to society under control (Foucault, 1988). As Jakobs (2014, p. 418) asserts, “The need for security from future crimes” has shaped the debates in legal theory since the end of the 19th century. Yet, the problem is not the aspiration for security alone, but the confusion of two different legal spheres, namely, that of punishment as a reaction to crimes and that of prevention of possible future harms. Consequently, we are witnessing what Jakobs calls the “policification of criminal law” (Jakobs, 2014, pp. 418–419) where the rationality of fighting dangers and forestalling crimes seeps into penal law.
Enemy criminal law has been widely discussed in the international legal and criminological debates. Although Jakobs has not, apart from an interview (Jakobs, 2012), written anything new on the topic by himself, the problems the concept raises are still prevalent today—especially in the face of enduring and evolving forms of terrorism. However, as will be shown in the following, enemy criminal law ineluctably fails to fulfill its mission to safeguard the liberal legal system. This entry will first take a look at the concept’s analytical prospects, followed by an assessment of its political ambitions. By tracing its affiliations to liberal political thought and systems theory, we are brought closer to some of the concept’s inherent contradictions, notably, that it unleashes what it seeks to tame. Security, it turns out, is a concern that might easily become voracious and cannot be contained by trying to quarantine it.
Analytics of Our Present
Enemy criminal law is both an analytical concept and a form of political intervention that is inspired by a particular theoretical perspective. It is analytical in that it critically observes and names the various sites in penal law that have been affected by the logic of enemy penology. First and foremost on this list is the legislation to combat terrorism, initiated in Germany as a reaction to domestic terrorism in the 1970s but gaining in momentum since the terror attacks of 11 September 2001. Enemy penology was also at play in the fight against drug trafficking and organized crime in the 1990s and, notably, the fight against sexual and “other dangerous offenses” as part of a neoliberal politics of being “tough on crime” that reinstated the figure of the criminal as the “alien other” (Garland, 2001; Krasmann, 2003). What these attendant legislations and measures have in common is their precautionary approach to punish before the crime itself is committed—or to be more precise, to penalize acts that are presumably preparatory to the execution of a crime and other forms of conduct that are considered potentially harmful, however remote the possibility. Such acts themselves become crimes through criminalization. Typical examples are the prohibition of membership in a terrorist group or visiting a terror camp where the intention to plan or participate in a terrorist attack has not been proven but is inferred. While the former may still be considered an abstract endangerment offense (abstraktes Gefährdungsdelikt)—that is, as objectively dangerous behavior—the latter would imply punishing individual convictions, as learning certain skills is not dangerous as such (see Jakobs, 1985, p. 757, 767; Schick, 2012, p. 47). Another example is the preventive detention of sexual offenders who are assessed as a lasting risk even after having served their sentences, or for so-called endangerers who are identified as a threat to public security, despite not showing any provable signs of being prone to violence. The problem posed here is that what amounts to a form of punishment is actually intended to avert harm by preemptively taking the dangerous element out of circulation.
Jakobs (1985, p. 774) maintains that to avoid encroaching on the individual’s privacy and punishing political convictions or individual dispositions is what a liberal state should strive for. Originally, the concept of the legally protected good was meant to be a solution to the problem at hand; it was invented to delimit criminal legislation as well as sentencing. Simply to extend the definition of what counts as such initially appeared to be the appropriate response, shifting the focus from the presumably dangerous individual toward public security (see Jakobs, 2014, p. 419, 2004b, p. 94). Yet, the pretence of averting dangers and threats produces its own counter-effects, as virtually anything could be deciphered as endangering public or private goods such as life, property, or freedom (see Jakobs, 1985, p. 753). The punishment of a crime, which concerns the validity of a norm, and security measures that address dangers and threats, must therefore be strictly separated. Jakobs (1985, p. 784) contends in his early writings that any criminal law destroys the venerable “citizen criminal law” (Bürgerstrafrecht). It is only acceptable and justifiable as an emergency criminal law that is applied in exceptional circumstances.
Enemy criminal law also constitutes a political intervention in the legal debate. Initially skeptical of the proliferation of anticipatory forms of criminalization, Jakobs increasingly took positions in favor of these measures on the condition of explicitly designating and formalizing them as enemy criminal law. To be clear, this is not meant to be a simple question of labeling. The very point of the concept is to demarcate and separate measures and laws whose principles are allegedly incompatible with those of a citizen criminal law and ultimately the constitution of a “freedom-centred state” (freiheitlicher Staat) (Jakobs, 1985). The move toward this position came along with Jakobs’s waxing realization that there are certain types of offenders that are rather persistent (or, in his words, offenders who lack “sufficient cognitive foundation”) to refrain from committing crimes (Jakobs, 2014, p. 423). Throughout various publications, the author’s statements changed in tone substantially. Jakobs (2000, p. 53) argued, for example, that societies
will have enemies there vagabonding around—openly or in sheep’s clothing. Society cannot just ignore this problematic of insufficient cognitive security; nor can the problematic be solved merely by police means. Therefore, today there is no obvious alternative to enemy criminal law.
A few years later, Jakobs (2004b, p. 92) promoted his concept by appealing to his audience as follows: “Those still in the dark might be helped to get enlightened in a flash in view of the acts occurring on 11 September 2001.”
The spike in interest in enemy criminal law coincided with the new quality of the dangers and threats widely perceived in the West as looming over the beginning of the new millennium. The questions Jakobs tirelessly raised also worried many other legal scholars and criminologists for various reasons: how to deal with offenders who persistently ignore and challenge legal norms and principles—whether out of ineptitude, ignorance, or ideology—and conversely, what to do about the exponential rise of security laws considered as a necessary response to those threats but also feared to be encroaching on the entire legal system. Jakobs turned enemy criminal law into a device for political intervention when he proclaimed that the notion of the enemy was indispensable for dealing with extreme forms of crime and notorious offenders so as to avert a corrosive impact on Western societies and their established citizen criminal law. Against the empirical findings of so many critics, Jakobs (2014, p. 421) has argued that the detention camp at Guantánamo Bay “approaches the ideal type [of enemy criminal law …] as after a massive crime it also serves amongst other things to prevent further acts.” While in principle any type of unrelenting crime is subject to enemy criminal law, terrorism is paramount here: whereas the sexual offender or member of an organized crime group only partially challenges the system, the terrorist completely denies the legal order. The dangerous individual proves to be the enemy of society who is to be isolated and excluded as are the principles of enemy criminal law.
Enemy penology perpetuates a long tradition, and predicament, of penal law that provides for the exclusion of the dangerous (Alexander, 1998). Classical liberal theory, most notably represented by Cesare Beccaria (2009), advocated for the humanization and rationalization of punishment and the criminal proceeding through the law—and introduced the figure of “the reasoning criminal” (Cornish & Clarke, 1986), or homo oeconomicus, and with it the idea of guilt based on free will in legal thinking. As liberal philosophers such as Johann Gottlieb Fichte (2000) ventured, the culprit was the one who, whether intentionally or for reasons of imprudence, voluntarily opted for the offense and, hence, to challenge the law. Contract theory, especially in Rousseau and Fichte, tended to declare any culprit an enemy (see Schick, 2012, p. 49). The offense was seen as a turn against society (see Foucault, 2000, p. 54), and punishment was therefore deemed to be self-inflicted. The culprit made himself an enemy to society and consequently deserved to be excluded: that is, expelled or executed. As Jakobs (2004b, p. 89) asserts, Jean-Jacques Rousseau (1968) denied the criminal the status of citizen (citoyen) only to consider them an “ennemi” with whom the state was at war. Fichte (2000) argued that the execution of the culprit would, in view of the lack of his or her “personal quality (Personqualität)” as a legal subject, not count as punishment but rather as a security measure.
Even social criminology, committed to (re-)integrating the offender into society, accommodated exclusion in its conception of penal law. As one of its founders, the German legal scholar Franz von Liszt (1905, p. 173), famously proclaimed: those who are “corrigible” must be treated psychologically, but those who are “incorrigible” must eventually be incapacitated. Criminology’s promise was to better understand and manage that danger through the discipline’s expertise: the delinquent became an “individual to know” (Foucault, 1977, p. 251) and the object of procedures of normalization in the name of “social defence” (see Pasquino, 1991). The idea of the “purpose” of punishment (von Liszt, 1905) infiltrating penal law thus led to the social norm interfering with liberal legal principles, as it was no longer the criminal act but the criminal himself who came into the focus of penology’s interest (Foucault, 2000). Nonetheless, as Foucault (1977) insists, physical exclusion through incarceration simultaneously implied inclusion into society’s normative framework. Social criminology, however, left a door open for the criminal justice system to merely hold in custody—and literally incapacitate—those who seemed to resist submission under the normative regime as well as reintegration.
Enemy penology reflects a fundamental problem of liberal law, namely “what to do with individuals who are viewed as sources of extreme dangerousness” (Gómez-Jara, 2008, p. 529). Or to pose the question differently: how to evade “illiberal” forms of “governmentality” (Opitz, 2010) that systematically resort to direct forms of violence and exclusion in response to fundamental threats? It is here that the political dimension of law comes to the fore, in terms of the limitations of the legal system. The idea of state sovereignty is what made the distinction between the (public) enemy and the (legal) subject and between war and crime possible in the first place: the enemy by definition is external to the order, whether coming from within or from the outside of the state. The logic maintains that by radically challenging that order, the enemy locates him- or herself outside of it. And it is part of this logic that the enemy, in turn, is to be placed in the “nowhere”: that is, in an unmarked space that exceeds that particular order. As Christoph Menke (2010) argued, the law tends to capitulate in the face of the other that radically questions its order. It turns, or regresses, into violence, once it is unable to negotiate and ultimately find a language to confront that which exceeds its own terms and conditions,3 regardless of whether the respective disobedience be explicitly political, or not. In seeking to secure its sovereignty law demands subjection to its order:
Thus, law demands of him whom it judges, even him whom it condemns, that he judge himself accordingly. This, and only this, constitutes the legitimacy of law, which makes it different from revenge. However, it is precisely this same reference to self-judgment that defines the legitimacy of the legal verdict and marks the return of pre-legal violence in the law. For the judgment that the subject passes on himself grasps him like a curse and will never again release him. The violence of the legal is that of subjectivity.
(Menke, 2010, p. 8)
Of course, Thomas Hobbes (2005) was one of the first to raise and recognize this problem. According to Hobbes’s theory, sovereignty is grounded on consent, meaning obedience in exchange for protection. Sovereignty is the opposite of war: “It is established by the effect not of warlike domination but, on the contrary, by a calculation that makes it possible to avoid war. For Hobbes, it is a non-war that founds the state and gives it its form” (Foucault, 2003, p. 270). Whereas the criminal, in Hobbes’s theory of sovereignty, maintains the status of citizenship—he cannot suspend it himself—rebellion against the system, as an act of high treason, is a provocation that could turn the offender into an enemy. Rebellion suspends the principle of subjection under the sovereign order and therefore implies regression into the state of war.4 Jakobs apparently wants to make precisely that distinction between crime and rebellion, criminal, and enemy. However, by conceding enemy criminal law a status of its own within the legal system, the legal scholar goes a step further. “Citizen criminal law,” Jakobs (2004b, p. 90) clarifies, “is the law of everybody, enemy criminal law is the law for those who oppose the enemy; against the enemy, this is simply physical coercion, up to war.” To fight the enemy may in fact lead to war. Nonetheless, Jakobs considers enemies as part of the order in that they are treated on the basis of a formalized enemy criminal law. And it is here where we might begin to understand the specific theoretical ambition of Jakobs’s concept.5
Once again, Jakobs invokes renowned figures of political philosophy to further explicate that enemy criminal law indeed constitutes law and is in line with established liberal principles: according to Immanuel Kant’s Metaphysics of Morals (1996) and Anselm Feuerbach’s (1796) Critique of Natural Law, the law is vested with the “authority to coerce.” To use “force” against the “wrong” so as to prevent “a hindrance to liberty,” is legally permitted and required (Jakobs, 2014, p. 415). Coercion, to be sure, “depersonalizes the coerced,” who is, in Kant’s sense, is “degraded to an object”6 and loses their “status as a person” endowed with legal rights as well as duties. Yet, this is in accordance with early liberal thinking, as “it is only persons who commit crimes or make themselves liable to provide compensation” who can be stripped of their legal standing. Legal punishment thus is self-induced: “The bearer of the loss [of the status as a person] is himself to blame.” (Jakobs, 2014, pp. 416–417)
Similarly, the 21st-century phenomenon of the notorious offender—one who is seemingly unable or unwilling to present themselves as a “reliable” person—provokes their own exclusion. Exclusion here, notably, is justified on the basis of expectation or suspicion (i.e., on an anticipated future) rather than on past behavior: “The exclusion occurs because the perpetrator offers no guarantee for future legal behaviour and thus his personhood lacks a sufficient cognitive foundation” (Jakobs, 2014, p. 423). The enemy who initially comes from within (and this is the problem posed here) “has at any rate, presumably permanently … turned away from the law” (Jakobs, 2014, p. 420, 2000). He (or she) thus catapults himself outside of the existent order (Jakobs, 2004a). “Cognitive reliability is the condition of every inclusion,” Jakobs (2014, p. 423) explains. It is the non-legal precondition for the law to come into force: the people, in a way, must be committed to the law and its norms; they are to believe in the law-abiding force (see Jakobs, 1997, 2004a; Opitz, 2012, p. 364). Hence, cognitive reliability is an indispensable condition of societal life; “with included enemies, society cannot survive.” (Jakobs, 2014, p. 423)
Whereas citizen criminal law is about culpability—when sentencing, “one is still communicating with the criminal”—enemy criminal law “is more a question of isolation” (Jakobs, 2014, p. 421). It is, in fact, about war, as respective measures are “not concerned with the new ordering of a legal relationship” but with foreclosing future acts by excluding the enemy. Enemy criminal law in this sense operates in terms of the state of exception—if the exception is what the “suspension” of the rule gives way to: “the exception is truly, according to its etymological root, taken outside (ex-capere), and not simply excluded.” (Agamben, 1998, p. 18) Exclusion or incapacitation, as Jakobs insists in his later writings, must not be permanent—which is why enemy criminal law still constitutes law: “It provides the excluded … with a process, possibly even one for his return, he remains, in this respect, included” (Jakobs, 2014, p. 423).7 In accordance with classical liberal theory then, the use of force against those who pose a danger to society is not only self-inflicted but also pertinent, as the enemies themselves justify their being treated as non-persons. Procedural guarantees, at the same time, ensure that things run properly. Essential is the legal assurance of due process and the possibility of judicial review, which is how the excluded have a chance to be recognized as a person and, in principle, to return to society in due course.
Jakobs rejects any affinity with Schmitt’s (2005) political theory of sovereign decision where the sovereign is ultimately positioned above the law and where the distinction between friend and foe is a condition of the political (Schmitt, 2007). Nonetheless, without explicit reference, Jakobs echoes the expert in constitutional law’s differentiation between hostis and inimicus. It is the latter, the irregular enemy who is loathed for whatever reason, that is constitutive for enemy criminal law’s theoretical move to integrate the concept of war into the legal system and at the same time to segregate its logic from the ratio of citizen criminal law it would otherwise undermine. The aspiration is not to fall into the trap of fighting terrorism with extra-legal measures in such a way that the state ultimately forges a “precarious symmetry” with the enemy (Koschorke, 2005, p. 107).
The impulse to conceive enemy criminal law, in the face of this predicament and as a segregated legal system, is obviously inspired by Niklas Luhmann’s (2004) systems theory. According to this perspective, law, like society, exists only through communication, and the particularity of the legal system is that it “compares events from the environment with its norms and responds by encoding them as legal or illegal.” A criminal act is a “contradiction of a norm” (Ohana, 2014, p. 359). The law is about securing expectations. It produces and preserves expectations over time, even if the norm is breached. The existence of the legal norm reminds us of what is still deemed appropriate, and law enforcement reinforces it. Yet, if society fails “to confront its enemies” and thus allows social expectations to be constantly deceived, then it “is doomed to witness the demise of its entire legal order” (Ohana, 2014, p. 356; see Jakobs, 2000). Two aspects are pertinent here. Citizen criminal law, on the one hand, communicates norms and values. It deals with the culprit as a person: that is, as a legal subject who shows cognitive reliability and therefore is addressable in the first place. Enemy criminal law, by contrast, has to deal with individuals who lack personal reliability. And yet, according to Jakobs, it involves communication as well. Both citizen and enemy criminal law should address society, not only for the sake of preserving the validity of legal norms but also to reassure us that the legal system works. Legal security is about societal security. Systems theory, on the other hand, also allows us to see how the legal system may be corrupted precisely because it relates to the external environment through communication. Simply put, the system risks being monopolized by a particular language that follows an entirely different logic: security does not operate according to the opposition of “legal or illegal” but rather that of “dangerous or safe.” Instead of reacting to a crime, it is infiltrated by the logic of conjecture and preemptive intervention.
Discussion of the Literature and Problematization
Reaching far beyond the German legal and criminological debate,8 Jakobs’s theory was widely received—and mainly disparaged (Eser et al., 2000; Morguet, 2009; Uwer, 2006; Vormbaum, 2009). It had its finger on the pulse of the increasingly anticipatory nature of criminalization in the name of security (Kunz, 2013; Prittwitz, 2004), but it was dismissed, ironically, for succumbing to its own critique. As a political project, enemy criminal law itself was seen as not concurring with core liberal legal principles such as proportionality in sentencing or measure and respect for the dignity of suspects (Greco, 2010; Hassemer, 2006). In particular, it has been criticized for its affinity with the theory of the state of exception of Schmittian provenance in that it contributes to a normalization of the exception and a dissolution of penal authority (di Fabio, 2008; Malek, 2006). Others blamed Jakobs for playing on and exacerbating the differences between “us” and “them,” with pursuant exclusionary effects (Fletcher, 2007). Some even accused him of embracing a totalitarian notion of the enemy (Gonzáles Cussac, 2007). Part of this critique and confusion may be attributed to the fact that Jakobs actually mingled analytical perspective and political prospect, and he did not shy away from using pithy language (see Ohana, 2014, p. 356).
In the international debate on the security state—or rather “the insecurity state” (Ramsay, 2012)—enemy penology has served as an instructive tool for critique (Boehm, 2011; Bung, 2006; Frankenberg, 2005; Macdonald, 2015; Ohana, 2010; Zedner, 2010), just as intended in Jakobs’s earlier writings. Especially in regard to contemporary migration regimes, the concept speaks to the tendency of treating foreigners or aliens as enemies, as well as to exclude and intern those who do not have adequate citizenship status (Fekete & Webber, 2010; Grewcock, 2011; Weber, 2014; Zedner, 2013). Here, enemy penology is seen as a manifestation of character-based patterns of attributing otherness in border control and logics of criminalization (Lacey, 2012).
However, Jakobs’s main concern, once again, is not with the character of the enemy but with the legal system itself. The terrorist, like the sexual offender, in the view of Jakobs (2012), is a “stubborn” or recalcitrant epitome of society that classical liberal legal principles cannot remedy. Something must be done to prevent the erosion of the legal system by the constant disregard or defiance of legal norms. Jakobs’s theory thus shares some of the arguments featured in the debate on emergency laws, notably the concern that the legal system is unable to accommodate extreme situations (Loevy, 2011). In accordance with the theory of extra-legality (Gross & Aoláin, 2006), where unlawful actions such as torture are declared “exceptional” so as to temporarily admit them in the name of security, enemy criminal law presumes that it would not affect or contaminate the established legal system. Yet, extra-legality only works if the measures are singular—the legal review ex post that is part of the procedure will inevitably establish law practice and corresponding expectations. Enemy criminal law, by contrast, ab initio is conceived as established law, and it is not determined by the exceptional (see also Schick, 2012, p. 53). Unlike in the theory of exception (Agamben, 1998), it is not the exception (i.e., that which is external to the order) that becomes the norm. In fact, the opposite is true: enemy criminal law is the suspension of the law in that is seeks to expel those internal elements that are incompatible with the established legal system. Thus, enemy criminal law amounts to a “counter-law” that in Foucault’s (1977, pp. 222–223) sense is inscribed into the law.
Three problematics will be highlighted here concerning enemy penology’s inherent tendency to expand rather than contain the problem at hand. First of all, the enemy is not already on the other side of the order. The enemy has to be identified—and produced—in the first place. Here we can see that the figure of the enemy is a relational one: it only exists in relation to a particular order. Hence, a distinction has to be made between what or who counts as a notorious offender and who may come to adapt to the system and comply with its norms. Jakobs thereby ignores that there is no clear separation between the penal law that attempts to preserve norms and social expectations, on the one hand, and the penal law that fights dangers, on the other. A crime is not merely an infringement but also a pretension of freedom (Koetter, 2003). It may impinge on both certainty (in the sense of cognitive security) and safety (in the sense of the physical integrity of citizens). As a matter of principle, any form of crime could therefore be perceived as a danger or threat to be defeated and thus come into the crosshairs of security concerns.
This leads to the second difficulty. Enemy criminal law relies on risk technologies to create and manifest suspicion (see Opitz, 2012, p. 365). For whatever firm knowledge it may gather, it necessarily relies on anticipation and conjecture about future behavior that is uncertain by definition (Aradau & van Munster, 2011; Burgess, 2011). How then can we be so certain that the terrorist and the sexual offender share a common incurability? Where then to end our suspicion if security is always under threat? And where to draw the line of permissible counter-measures in order to avert harm if the world seems to become ever more complex and the threats “epistemologically speaking, largely unpredictable and therefore ultimately difficult to prevent” (Leese, 2017, p. 326)? What should be done, for example, about the new forms of terrorism that are increasingly seeping into our urban life and that no longer constitute the exceptional but rather the “new normal” (Chandler, 2014), or ordinary?
The rise of the figure of the “endangerer”—someone who attracts police surveillance by simply matching a list of risk indicators—may be telling here: defined by the German Federal Parliament as a person who is “likely” to threaten public security, this classification does not represent an established legal category but is an operational term for internal use.9 It allows police and intelligence services to pursue further investigations on the risk or threat a person presumably poses to society. What matters is not that the person has already committed an offense—such as the preparation of a serious violent offense endangering the state, for example, by producing, obtaining or supplying weapons, or instructing others or receiving instructions to do so, according to Section 89a of the German Criminal Code.10 What is important is that they appear to be willing to commit or contribute to such an attack, even if such suspicions are merely based on respective statements detected by security authorities: in short, on indices (Krasmann, 2011; Leese, 2017). The terror attack on a Christmas market in Berlin on December 19, 2016—in which a Tunisian asylum seeker steered a hijacked truck into the dawdling crowd (killing 11 people and injuring more than 50 others)—spurred the political debate on enforcing harsher security measures against endangerers. Authorities were already familiar with the attacker but had inadequately determined the danger he posed. The endangerer is subject to preventive detention or deportation to their alleged country of origin without the legal requirement for authorities to provide a provable concrete danger as justification for their actions.
The enemy, Eva Horn (2007, p. 260) holds, is always already identified as “the other” who is threatening “us,” with a tendency to depoliticize politics: there is no alternative but to combat one’s enemies, or, at the very least, to keep them under surveillance and suspicion. Hence, there would be an easy way out of society, though, contrary to Jakobs’s suggestion, no easy way back in, especially given that enemy criminal law is not inspired by the will to know the endangerers’ personality (Foucault, 1977). Enemy criminal law is not interested in rehabilitating the offender but rather in locating the threat to the population (Foucault, 2003).
Third, the intent to expel extreme elements from the established legal system, and thus to tame the untameable by means of the law, inevitably leads to the accommodation of the exceptional within the system itself. To be sure, Jakobs would perhaps consider it a form of “civilizing security” (Loader & Walker, 2007), where there is no need to deprive the enemy of all their rights. Critics reply that this is nothing short of introducing a permanent state of war on a national level; it is civil war and regression to violence, as the state fights its own internal enemies (Gómez-Jara, 2008, p. 558): it “annihilates itself when it betrays its own rules by introducing legislation that contradicts its very essence” (Gómez-Jara, 2008, p. 562). Or as Teresa Degenhardt (2015, p. 147) argues with regard to the combat of crime through military powers on an international scale:
[T]he establishment of authority and of a new legal system stand on the violation of the existing law, so practices which are clearly outside the existing law de facto establish new norms and can also be framed as enactment of law.
More sympathetic observers, by contrast, argue that Jakobs’s theory is rather “post-foundational” in that it finally concedes “the elasticity and fragility of norms in contemporary society, where the points of differentiation between fellow citizens are far greater than the nodes of commonality” (Ohana, 2014, p. 371). Seen through this lens, the rise of enemy penology is the manifestation of a crisis of liberal values, where Jakobs’s suggestion of segregating the legal system into the two antithetical paradigms is a necessary precaution to tame this crisis’ most self-destructive consequences. To admit that “security cannot always be achieved without suspending civil liberties” (Ohana, 2014, p. 371) does not amount to completely unleashing state powers or to provoke an abuse of power. On the contrary, actively embracing enemy criminal law would at least attempt to quarantine that which would otherwise be the antithetical to liberal law: extreme measures of direct violence or exclusion. It is, in other words, to accept the imperative to combat extreme forms of crime by illiberal means; and to concede that the illiberal is an inherent part of liberal governmentality.
It may be no coincidence that Jakobs shies away from naming any further concrete measures of enemy criminal law, apart from “anticipatory preventive detention” (Pawlik, 2008). If Guantánamo here is one of Jakobs’s (2012) preferred examples, in reality, it is indeed an exceptional case. The United States misguidedly claimed the military base to be extraterritorial and thus an extra-legal space where certain human rights for detainees and certain legal obligations would not apply (Kaplan, 2005). The mechanisms of erosion at work in the case of Guantánamo may be illuminated once again by drawing on Hobbes’s original theory of the state. Although based on the idea of equal sovereign states finding themselves in a happy coalition of mutual recognition (Foucault, 2003), the “relationship between armed states,” for Hobbes, is a hostile one, as “there is no common superior to keep them in awe” (Holmes, 2010, p. 386). Today, to be sure, international law is established, with the Geneva Conventions, for example, which protect the rights of enemies and “prisoners of war” when captured. Yet, as Frédéric Mégret (2006, p. 266) observes, inclusion in a legal system that guarantees particular rights always implies the possibility of denial (i.e., of being excluded): “[E]very protection under the laws of war, every status, might also be gained by denial of an ‘other’, so that the law is both inclusive and exclusive.” Guantánamo was such an example where the Supreme Court in 2008 had to reinstate established law, and not for the first time, ruling in Boumediene v. Bush that the detained were indeed entitled to access the U.S. justice system and had the right to a fair trial.11 In 2009 President Obama finally abandoned the term “unlawful enemy combatant” that the Bush Administration had codified in the Military Commissions Act of 2006 to further deprive detainees of legal protections under the Geneva Conventions; however, years had already passed during which Guantánamo detainees had even been subject to practices of torture (Rose, 2004). This was also a betrayal of American values (Sands, 2008).
As the history and logic of the production of legality concerning extreme measures shows, written law is never a guarantee in its own right (Loevy, 2016). Law needs to be enforced. It requires institutions that ensure its enforcement, and it may ultimately depend on the values and norms a particular society is prepared to actively accept and enact. Of course these norms, for better or worse, remain open to contestation, and as experience shows they tend to be amended in the face of ongoing or new threats. Against this backdrop legal scholar Horst Meier (2006) asked whether the existence of a second body of law such as enemy criminal law would not provide authorities with sufficient legal support for extraordinary measures that essentially go against the established spirit of the rule of law. Enemy criminal law, after all, is deemed to be positive law and thus involves the force of law with all its consequences and ambivalences (Derrida, 1990).
Hence, the major problem with Jakobs’s theory, perhaps ironically, seems to be that it agrees to legally integrate the logic of war, precisely for the sake of saving the legal system. As Gilles Deleuze and Félix Guattari (1997, p. 353) hold, the war machine is “irreducible” to the state. It exceeds the law, but when juridically incorporated, it changes the whole system. “The State is sovereignty. But sovereignty only reigns over what it is capable of internalizing, of appropriating locally” (Deleuze & Guattari, 1997, p. 360). The irony here, again, may be that the war will be tamed in a certain way. It will be legalized with its logic as it is internalized. As Marc Andrejevic (2017, p. 880) observes: “Once the battlefield is subtracted, the notion of combat … must be redefined … A combatant can become anyone who at some point in time—past or future—can be configured as a threat.”
Law, according to its promise, may be “formal” (Fish, 1994) and even reliable: just doing its business in bestowing political action with authority and legal control mechanisms. Yet this is not the same as taming the logic of enemy penology. However sophisticated the conceptualization of an additional legal system—which opens up a “third space” (Krasmann, 2007, p. 309) between the logic of war and citizen criminal law, and between internal and external security—enemy criminal law is in fact inscribed into the law. It is, in Jacques Derrida’s (1997) sense, the supplement that adds something, only to transform the whole system.
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(1.) Oxford English Dictionary; see also English Oxford Dictionaries, retrieved from https://en.oxforddictionaries.com/definition/enemy.
(2.) While “enemy criminal law” or “criminal law of the enemy” is a common translation of the German term “Feindstrafrecht,” the notion of “enemy penology” (Krasmann, 2007) is more comprehensive. It alludes to the ratio of thinking in terms of the enemy in the context of the (penal) legal system. There is in this sense no clear separation, as positivists have it, between the formal law and the legal norm on the one hand and the penal discourse and practices on the other. “Penology” does not only refer to the penal law but involves “the discourses and practices generated by all of us who pose as professionals in the realm of the exercise of the power to punish” (Feeley & Simon, 1995, p. 174).
(3.) The constitutional right to resist might illustrate the dilemma, as it grants the right to oppose the violation of the order.
(4.) Yet, obedience in Hobbes’s theory is conditional. The duty to obey ceases if sovereign protection fails. This means that subjects regain their natural freedom (i.e., “the freedom to kill their ‘enemies’ in the state of nature” (Holmes, 2010, p. 383).
(5.) As Schick (2012, pp. 56–57) stresses, both conceptions of the enemy, Jakobs’s as well as Schmitt’s, involve the idea of containment. Schmitt’s (2007) Theory of the Partisan, for example, is based on the concept of sovereign states that mutually recognize (rather than disqualify) each other as enemies, in contrast to criminals that are to be combated but not annihilated. For a further differentiation of the notions of enmity throughout Schmitt’s works, see Balke (1992).
(6.) “Compelling the lawbreaker to desist from his action or punishing him is a law of reason, but the coercion itself lies in nature; in other words, the law of reason permits or requires proceeding with legal coercion according to the laws of nature” (Jakobs, 2014, p. 416, drawing on Feuerbach).
(7.) In his previous writings, Jakobs was not so sure about this positioning: “Enemy criminal law,” he contended (2000, p. 51), “follows different rules compared to constitutional internal penal law [Binnenstrafrecht], and it is not yet agreed at all whether when elaborated it will indeed turn out to be law.”
(9.) Wissenschaftliche Dienste des Deutschen Bundestags (2008) Gefährder. Aktueller Begriff, No. 36/08, July 23. Retrieved from http://www.bundestag.de/blob/503300/7312c13c057d6da4ad5685f51cd35782/gefaehrder-data.pdf.
(10.) In the version promulgated on November 13, 1998, Federal Law Gazette [Bundesgesetzblatt] I p. 3322, including the amendment(s) to the Act by Article 6(18) of the Law of 10.10.2013 (Federal Law Gazette I p. 3799).