Counter-Law

"The notion of counter-law includes both 'law against law' and surveillance" (Ericson 2008: 6)

Kevin Walby, Carlton University: "The politics of uncertainty leads to two forms of counter-law, or laws against law. Here Ericson is drawing from Giorgio Agamben’s work on “states of exception.” For Agamben a state of exception materializes when the normative and procedural aspects of domestic law as well as international law are ignored through the carrying out of governmental violence with impunity. One form of counter-law comes into being when “new laws are enacted and new uses of existing law are reinvented to erode or eliminate traditional principles, standards and procedures of criminal law that get in the way of preempting imagined sources of harm” (24). The second counter-law takes the form of surveillant assemblages – networks of surveillance procedures that likewise erode procedures of criminal law. It is these two forms of counter-law, with all their focus on preemption, that lead to the criminalization of the merely suspicious. Usually a state of exception is initiated in relation to potentially catastrophic events, but the politics of uncertainty make states of exception more of a semi-permanent actuality.

These forms of counter-law become, as Ericson puts it, “two Leviathans.” Hobbes’ deployment of the Leviathan metaphor clearly expressed the liberal impetus towards a sovereign state that would provide enough physical security and prosperity to keep the so-called war of all against all at bay. But in the biblical expression, Leviathan refers to a monster that leaves only death and destruction behind it. In pursuing these new forms of counter-law, argues Ericson, “the state transforms itself into the biblical social imaginary. It enacts new laws against law and extends surveillant assemblages that engulf all imaginable sources of harm” ( 35). Ericson is pointing to the normalization of governmental violence in the early 21st century.

The “two Leviathans” make their effects known in four spheres of governance: national security, domestic security, social security and corporate security. A clear example of counter-law in relation to national security is the USA Patriot Act. Under this act alleged “enemy combatants” can be held without charge or trial, indefinitely, and are subject to torture. The most notorious site of this violence is the Guantánamo Bay detention prison, purportedly located outside the jurisdiction of U.S. courts and perhaps any other court. At the same time, the United States seeks total information awareness through creating new surveillance systems and enhancing old ones.

In the sphere of domestic law, four key intensified uses of law are noticeable. First, anti-social behavior laws increasingly aim to cleanse the public space of so-called undesirable or rowdy social groups. Second, criminal possession laws around drugs and property aim at already marginalized persons. Third, law used in the policing of transience like the Safe Streets Act in Ontario makes poverty itself a crime. Last, private policing organizations respond to their clients’ demands in ways that would be illegal for public police. “Enemy minorities” become policed and interned as if they were “enemy combatants.”

With social security, there has been a crackdown on those construed as exploiting the welfare system. Photo and video surveillance of disability claimants by health benefit providers is now common. Citizens are encouraged to call into the Welfare Fraud Hotline. One irony here is that claimants are pushed to be entrepreneurial neo-liberal subjects at the same time they are criminalized for being entrepreneurial. As Ericson writes, “claimants are the suitable enemy, the malicious demons who threaten to drag down the entire social body as visualized in the neo-liberal social imaginary” (118).

In the corporate sector, “liability for harm is treated as a problem of white collar crime, of employees acting against the corporation, rather than as a corporate crime, the corporation acting against the range of social interests and the public good” (151). Risk management procedures fail and feedback into knowledge of risk, creating possibilities for more governance as well as fostering and incubating potential catastrophe.

The instances of governing through uncertainty Ericson charts in his book demonstrate how a precautionary logic is deployed in multiple spheres of governance as well as how a search for threats permeates all space. The consequence: death of criminal law itself. For Ericson, “while some requirements of actus reus, mens reus, and due process remain formally in place…they function primarily as a veil of administrative decency over preemptive counter-laws that effectively take justice out of criminalization processes and fundamentally undermine law as the democratic institution of liberal social imaginaries” (213). Surveillant assemblages become a more prominent mode of regulation, and the biblical notion of Leviathan as vicious monster replaces the liberal claim of states to protect and provide for their citizens.

While Ericson’s point about the death of criminal law might be somewhat overstated, it is certainly not unfounded. In situating his comments on the criminalization of the merely suspicious in relation to his and Kevin Haggerty’s concept of the “surveillant assemblage” (see “The Surveillant Assemblage,” British Journal of Sociology, 51⁄4: 605-622), Ericson is responding to scholars who criticized the original formulation of the surveillant assemblage and the focus on the leveling of power hierarchies therein. The argument of Crime in an Insecure World is clearly that surveillance procedures operate to reinforce existing social divisions. By applying the states of exception notion to concrete criminal justice matters, Ericson attempts to make Agamben intelligible for less theoretically-oriented criminologists and socio-legal scholars."

Counter-Law

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