by François Debrix ·
The following review will soon appear in Telos.

Jean-Claude Paye. Global War on Liberty. Trans. James H. Membrez. New York: Telos Press, 2007. Pp. 261.

The state of emergency exists for the long term. It emerges as a new type of political system, dedicated to defending democracy and human rights. . . . [T]he citizen must be willing to renounce his/her concrete freedoms for a lengthy period of time in order to maintain a self-proclaimed and abstract democratic order. [1]

To be sure, a lot has been written about this post-9/11 generalized state of exception, and about its many social and cultural effects. New anti-terrorism laws in the United States, Great Britain, and the European Union, the placing of certain groups of individuals outside the law (terrorists, enemy combatants, suspect airline passengers), the creation of exceptional procedures of containment, detention, and interrogation by government agencies, an ongoing and intensified regime of police surveillance inside Western societies, and the launching by the American state of a global war against terror have been and continue to be the object of various publications, essays, journal articles, and newspaper editorials. Several of these interventions have sought to apply political theoretical insights derived from the thought of philosophers like Carl Schmitt, Hannah Arendt, Michel Foucault, or Gilles Deleuze in order to make sense of "our" current history. [4] Others have chosen to take advantage of recent events or policies to figure out how contemporary practices can speak to existing theory. [5] In a way, Paye's Global War on Liberty seeks to achieve similar objectives. The volume does contain theoretical reflections derived from Schmitt and Agamben on recent measures and practices. It also offers several empirical chapters that detail minute aspects of anti-terrorist laws in various Western countries. Thus, Paye's Global War on Liberty could be read (far too superficially, however) as yet another text on the politics of domestic and international securitization that accompanies the implementation by governments of measures of protection against terrorism.

But such a reading of Paye's work would miss what I think is the key contribution of Global War on Liberty to contemporary discussions on the state of the law, society, and political order. Global War on Liberty is not like any other critical study that seeks to take stock of the current condition of state control and its disastrous outcomes for democratic possibilities. It is not so because its mode of argumentation precisely consists of going beyond the point where many of those currently fashionable critical studies take us. Whereas many of these studies have left us with the realization that the state of exception in the making is in fact a new norm, a state of permanence (and, of course, such a critical insight is essential, but perhaps a bit obvious by now), Paye takes this particular realization as the very point of departure for his own reflection. The state of exception created by emergency laws and other extra-constitutional decisions and actions in Western societies is indeed a permanent condition, the starting point for new types of normalization practices and ways of thinking. Again, other critically inclined thinkers (Agamben, Badiou, Hardt and Negri, Harvey, and so on), in their own fashion, have said as much. But, in a way, this is all they have said. For them, the analysis need not go any further. By contrast, Paye believes that, after one has declared that exceptional measures are not just to be seen as cases of Schmittian sovereign decisionism anymore (which would be premised upon the ability to insert arbitrary but temporary measures to better restore the law eventually) but that they are the points of origin for a new modality of sovereign governance, one still has a lot of critical work to perform. One must still detail what the principles, structures, and rules of formation of this new form of government, this new political order, as Paye puts it, are and how they operate. For Paye, this critical investigation into the beyond of the state of exception as a new permanent condition requires a prolonged, detailed, meticulous, and case-by-case examination. Here, grand theory is no longer sufficient, as Paye reveals that the devil is very much in the details of this developing post-constitutional domain of power, governance, surveillance, and control. Although Paye never spells this out, the implication here seems to be that, if there are to be resistances to this new regime of disciplinization and suppression of individual liberties, these challenges (or their proponents) had better be able to know what they are facing rather than assume that prior instruments of social and political critique will do the job against the newly implemented measures and policies.

At this critical juncture, past the point of no return for the contemporary state of exception, Paye also suggests that one cannot simply assume that a deep critique of the American post-9/11 system of regulation of terror/insecurity will suffice (with the related assumption that other national or regional cases of exceptional order will necessarily wish to replicate the U.S. paradigm). In fact, and this is another crucial insight offered by Paye, some European national models of "exceptionally permanent" social/political governance (the British and French models in particular) did come up with some of the new ideas, principles, and applications (about surveillance, police work, or summary detentions), now attributed to the United States, before the 9/11 attacks. [6] Thus, a meticulous excavation of the documents or statements that form the basis of this new social/political order must start with singular cases. It must consist of what, with Foucault's help, one might be tempted to call an "archeology" of the present. [7] This is precisely how Paye initiates his analysis, with a succession of closely studied national and regional cases, and with an emphasis placed on the texts of these new "laws," executive decisions, directives, or sometimes, simply, explanations provided for actions already undertaken by various governmental agencies (police, military, intelligence) outside of existing legal frameworks. Only subsequently, once the "archeological work" has been performed, can the critical analysis move (from the particular insights) to more general principles that, Paye intimates, will have revealed themselves through the cumulative examination of the cases. It is only at that point in Paye's analysis, after the detailed situations have been considered in their singular aspects (but also always keeping in mind the larger context of the global war on terror), that grand theory is allowed to return. And even when it does return, toward the end of Global War on Liberty, Paye is not always successful in locating a theoretical language that can speak to the new durable condition of exception.

Beyond the Suspension of the Law

Paye writes that "the rule of law becomes increasingly formal, not only because its content, the protection of private life and the defense of individual and public liberties, turns out to be very limited, but also by the practical possibility offered to the executive power to free itself completely from the last safeguards of legal order" (34). He adds: "The strengthening of the executive relative to the other powers makes possible the general and permanent suspension of the law. It is the instrument for setting up a state of exception" (34). For Paye, the state of legal/constitutional exception implemented in most Western democracies is not about a temporary suspension of the law, one that might guarantee a preservation of existing democratic principles in countries like the United States, Great Britain, France, Belgium, Italy, or the European Union in general (the cases that Paye spends his time detailing in Global War on Liberty). More importantly, it is also more than a suppression of democratic legal and judicial systems, and of the individual rights that these normally guarantee, that would become a new rule of permanence, a new long-lasting condition of suspension of the rule of law, whereby politics could become the product of a succession of ad hoc decisions made by government officials and bureaucrats (as Agamben and others have intimated). Paye does mention that the generalized regime of suspension of the law in Western democracies allows states' executive powers to remove legislative and judicial prerogatives from the decision-making process, thus further enabling governments to monopolize all legal and constitutional powers (making the laws, implementing and enforcing the laws, and deciding on the judicial validity of the laws all at once). This could amount to a replacement of liberal democratic systems with totalitarian or dictatorial modes of political order. Paye does recognize that this often appears to be what the current system is about. And, on several occasions throughout the text, Paye feels compelled to refer to the new order in the making as a dictatorship or as a totalitarian system. But this conclusion is too hasty and incomplete. In fact, it cannot be substantiated by the analysis that Paye himself conducts in Global War on Liberty.

Indeed, more than an insertion of totalitarian or dictatorial rule into Western democracies through the many instances of suspension of the law, what Paye's text reveals is that this suppression of the law gives way to the creation of a new normative system (one for which there may not be any appropriate political vocabulary yet). As Paye puts it, the generalized state of exception "breaks new ground by modifying the very form of the state" (34). Or, as he adds later on, "this morphing of the legal order is significant . . . [because] it lays the foundations of a new kind of political regime" (61). Today's permanent state of emergency/exceptionality ushers in a new legal system and, more importantly for Paye, it announces a new political order, one that reshuffles the logic of social action and scrambles the relationship between the state and the citizen. Paye's analysis demonstrates that the contemporary condition is not just a return to totalitarianism or dictatorship (his temptation to fall back onto those terms notwithstanding). Or, at the very least, what we commonly take to be totalitarianism will have to be reconsidered to match the contemporary circumstances.

What is crucial here, both in the new policies that have been adopted and in Paye's language, is the passage from the idea of the suspension or even dismantling of the law to the notion of a "morphing" (his own word) of the entire legal order. Indeed, the new permanent system of exceptional normativity that is being constructed in many Western countries facilitates summary decisions and arbitrary removals of individual rights and public freedoms by the sovereign ("he who decides on the exception," as Schmitt famously put it), or by various branches of the executive power. It enables a power of interpretation (of the political situation, the suspected risk or danger, or the meaning of the new laws) by governmental officers to become the only possible point of reference of the law for individuals living under such regimes, the always variable and contingent expression of rights and obligations for the citizen (in this sense, it recalls Kafka's argument in The Trial [8]). But, and this is what distinguishes Paye's original contribution from previous studies, what allows all law-making and law-interpreting prerogatives to be exclusively shifted towards the state's executive or the government is not the presence of the sovereign per se, its centrality or accumulation of constitutional powers. It is not the institution of an authority that now would reside entirely in the sovereign's decisionistic capacities. It is, rather, the crafting of a legal order that is permanently here, yet always in the making, even before the sovereign's decision on the exception is rendered. This new legal order does release an arbitrary decisionistic power of the state's executive. But this order is also prior to all the sovereign measures taken by this executive or government. This is the reason why, as Paye shows us in his volume, it really does not matter who occupies the position of power, which member of the government or executive command structure possesses a capacity of interpretation or action, and in which nation, country, or even region of the globe this new legal totalitarianism (if we must still call it totalitarianism) takes place. In fact, as Paye implies, it probably does not fundamentally matter whether a country has been attacked by terrorists or not, as this (morphed) model of legal and political order always operates at the level of potentiality, plausibility, and precaution (27, 33). Operating on the assumption that some catastrophe may take place at any moment in a given society, the newly established legal regime permanently triggers a sovereign's interpretation, decision, and subsequent action (often as a limitation of basic freedoms).

Procedure and Police Work

But what could form the basis, the structuring force, of this morphed legal order, of that normative substrate that, as Paye puts it, "legalizes the executive's self-proclaimed judicial powers" (61)? According to Paye, more than some (Schmittian) sovereign decisionism (which, as we have seen, is only a consequence of this model), two essential elements are needed to realize the transition to this local, national, or regional, yet all-encompassing and possibly transnational in some of its effects and objectives, legal order. The first basic component of this developing normative system is an emphasis on procedure over substance. Paye writes that "[I]f the intervention of the law is increasingly present everywhere, it is expressed in the form of the procedure, so that it is possible to speak of a 'proceduralization' of social relations" (222). What the (new) laws/measures actually stipulate, who they will affect, how they will deprive individuals of rights or violate previous constitutional safeguards is secondary, probably irrelevant, as long as the process or chosen method of achieving a set (but generally vague) result—control, command, surveillance, security, victory—is respected. Of course, a law that bases itself on procedures, that is in fact nothing but a series of procedural stipulations, and that is made to constantly fluctuate as new techniques (of arrest, conviction, adjudication, internment, interrogation, coercion, defense, and military attack) are produced and taken to be the norm, deprives itself of any standard (moral, judicial, or institutional) against which it could be evaluated and that could keep it in check. Instead, a legal order that is strictly procedural makes and unmakes its own standards as it goes along, as it covers more and more political terrain, and as it regulates more and more social relations. Thus, according to this legal or rather procedural framework, if it appears that the law changes every time the state's executive or sovereign makes a new decision, it is in fact because the normative basis of the (new) system cannot accommodate anything other than a succession of constantly revised, fine-tuned, or transformed techniques and procedures. The vaguely formulated objectives of such procedural measures are incidental and come after the fact, once the rules are already in place. Thus, the sovereign's task is far more to find a way of connecting the new procedures to (the pretense of) a final purpose, to an overall justification, than it is to actually actively decide on the ultimate goal and, on that basis, invent appropriate laws. Put somewhat differently, the functional or formal fullness of the law (or its substantive emptiness) is for Paye what determines most normative, and further political and social, priorities in (seemingly) democratic states today. As Paye argues (but perhaps with too much emphasis on the autonomy of the government still): "The law is no longer what delimits the prerogatives of the government, but, on the contrary, what eliminates any barrier to its activity. The legal order becomes the symbolization of non-law" (100). Nevertheless, this so-called non-law, or rather this procedural order, forms the basis of the present condition of permanent exceptionality.

Transforming democratic legal orders into procedural ones does require some agency. If, as Paye intimates, sovereign decisionism is not the basis of the current system of exception but, rather, its consequence, and if a different (formal, functional, technical, and process-driven) normative order is the precondition for today's mode of totalitarian power over society, some agents or actors with a capacity to enforce procedures are still needed for the maintenance of the system. This is the point where a second fundamental element in the making of the new normative order emerges. Governmental institutions that previously were in charge of guaranteeing the respect of the rule of law and the preservation of the democratic social order now become endowed with an additional, more fundamental (to the functioning of the system) mission. Indeed, Paye asserts that the police and the military in Western societies become the two essential agencies of this contemporary regime of durable, possibly endless, exception. The police and the military are agents who make possible the application of the new law as a purely procedural and formal normative structure (their arbitrary and summary actions make sure that procedure/process is followed). Consequently, they also enable the implementation of the sovereign executive's decisionistic force. As Paye repeatedly mentions, the police and the military embody the "pure violence" of the new legal system (87). In a sense, these two institutions—and more importantly their agents (the police forces and the warriors)—operate in a purely (because procedurally limitless) sovereign fashion, and they do so even before the newly constituted powers of interpretation and decision of the state's executive can be instituted. In Global War on Liberty, Paye does not have much to say about the role of the military (despite the book's somewhat misleadingly translated title). But his sustained emphasis on the actions of the police is compelling. For example, Paye notes that "[t]he weakening of the judiciary and its subordination to the police, an increasingly autonomous part of the executive, is a structural element in the extinction of the form of the rule of law" (182). Paye's careful examination of the growing autonomy and expansion of police operations throughout the Western world (surveillance, arrests, and collection of private information without warrants, cooperation with intelligence services, investigations and interventions without judicial approval outside existing national borders, sharing of data and resources between various national police forces beyond existing international treaties, and so on), most of which was already in place before 9/11, leads him to conclude that, "in the absence of any control, be it judicial, legislative, or executive, there is an increasing autonomization of police operations at the national, European (Europol), or world levels. This process places the police at the center of the structures of the national state" (183). By establishing procedures (often investigative, criminal, and punitive) that constitute the legal system, the police steers society towards new organizational frameworks and categories of life/living. It sets up formal and functional foundations of social and cultural existence/being whereby anyone in society, at any moment, can become (in fact, is always potentially) a subject of the anti-terror, anti-danger, anti-crime, and anti-dissent regulations that the government will implement (if nothing else, to provide some appearance of substance or justification to the police procedures). The police forces are thus crucial to the new legal system but, more importantly for Paye, to the new political order. The police function ensures the end of the social and assumes a "hegemonic function through [its] mobilization of the population in the implementation of security policies" (186). Once again with Foucault's assistance, one could say that Paye makes us aware of the passage from biopolitical sovereignty to bio-policed normative orders. [9] The power to make or produce life, to put to efficient uses the live forces of the nation, and to mobilize society around active disciplinary, coercive, criminal, and security procedures is now the primary (sovereign) task of the police (just as it is also the primary role of the military outside the state's borders, in the context of the war on terror). Again, the rest of the governmental functions, and in particular the power of interpretation of the head of the executive, are secondary. The sovereign and its decision on the exception are the fortunate beneficiaries of the normative groundwork of procedural biopolitical reorganization performed by the (bio)police. This is once again why, as I intimated above, totalitarianism and dictatorship can no longer help us to make sense of the current condition of legal exception and abuse of authority. In an age when the biopolice and its mastery over procedure are in charge of the "mobilization of the population" (as Paye puts it), the executive power, or "he who decides on the exception," is no longer central or hegemonic. Rather, the executive's "sovereign" centrality or hegemony is merely derivative of the boundless operations, actions, and determinations carried out by a few procedural agents (police officers and warriors in particular).

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.

Notes

1. Jean-Claude Paye, Global War on Liberty, trans. James H. Membrez (New York: Telos Press, 2007), p. 2.
2. Jean-Claude Paye, La Fin de l' État de Droit (Paris: La Dispute, 2004).
3. Jean-Claude Paye, Vers un État Policier en Belgique? (Brussels: EPO Publishers, 2000).
4. See, for example, Julian Reid, "Deleuze's War Machine: Nomadism against the State," Millennium: Journal of International Studies 32 (2003): 57–85; Michael Hardt and Antonio Negri, Multitude: War and Democracy in the Age of Empire (New York: Penguin, 2004); François Debrix, Tabloid Terror: War, Culture, and Geopolitics (New York: Routledge, 2007); Michael Dillon, "Governing Terror: The State of Emergency of Biopolitical Emergence," International Political Sociology 1 (2007): 7–28; and Derek Gregory, "Vanishing Points: Law, Violence, and Exception in the Global War Prison," in Derek Gregory and Allan Pred, eds., Violent Geographies: Fear, Terror, and Political Violence (New York: Routledge, 2007), pp. 205–36.
5. See, for example, Alain Badiou, Infinite Thought: Truth and the Return of Philosophy, trans. Oliver Feltham and Justin Clemens (London: Continuum, 2003); David Harvey, The New Imperialism (Oxford: Oxford UP, 2003); Judith Butler, Precarious Life: The Powers of Mourning and Violence (London: Verso, 2004); Slavoj Žižek, Iraq: The Borrowed Kettle (London: Verso, 2004); and Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: Univ. of Chicago Press, 2005).
6. See Paye, Global War on Liberty, pp. 87, 170.
7. Michel Foucault, The Archaeology of Knowledge, trans. A. M. Sheridan (New York: Pantheon, 1972).
8. See Franz Kafka, The Trial, trans. Willa and Edwin Muir (New York: Schocken Books, 1995).
9. See Michel Foucault, "Society Must Be Defended": Lectures at the Collège de France, 1975–1976, trans. David Macey (New York: Picador, 2003).
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).