Towards a Theory of Institutionalized Judicial Exceptionalism

Abstract

What happens when the exception becomes the norm, what happens when the law becomes a form for that which cannot have a legal form, that is, the political? The focus of this article is a form of power politics that is institutionalised and set up to work side by side with the existing legal system as a sort of normalized, co‐ordinated court procedure, initiated with the aim of subjecting specific groups (terrorists, criminals) to extended regulatory control and enforcement. These strategic bureaucratic mechanisms of exclusion appear as security enforced measures, which side by side with the existing ‘normal’ legal system govern a specific judicial‐political area. The normalised (or rooted, if one wishes) incorporation of extra‐judicial authority within the legal system will in the article be refered to as institutionalised judicial exceptionalism. The purpose of the article is to theorise and conceptualise the in many ways murky or indistinct phenomenon of institutionalised judicial exceptionalism.This task includes suggesting a model capable of assimilating within its theory the displacement in the relationship between the state, the law and the citizen that stems from the fact that the ever more securitized discourses on terrorism and crime increasingly take priority over the ordinarily non‐derogable principle of equality before the law.

Keywords:

• Anti‐terror legislation
• Anti‐terror law
• terrorism
• legal theory
• emergency law
• Carl Schmitt
• Giorgio Agamben
• refugees
• Danish refugee board
• flygtningenævnet

Notes

For a thorough discussion of the concept of the Rechtsstaat as it is found in contemporary Danish legal politics, see Rosén 2005.

By Danish Law no. 436 adopted June 10th 2003 regarding ‘Amendments to the Criminal Code and Administration of Justice Act (fight against outlaw motorcycle gangs and other forms of organized crime)’ the criminal code and court procedures were changed in order to provide the police with the possibility to deploy so‐called ‘civil agents' (undercover agents) in the fight against organized crime (Smith 2003a; 2003b). The legal changes enforced by Law no. 436 restricted the defendant's access to the prosecutor's documents, so as to protect the identity of the civil agent, and as such it restricted the principles of the right to a fair trial for certain persons because it was deemed necessary.

For a thorough analysis of the current discourse on law in Denmark, see my article ‘Politics of Law. The Concept of the Rechtsstaat as a Political Battlefield’ (2005). The article examines how the politics of law in Denmark on the one hand tends to accept a certain degree of legal decisionism in the name of security; on the other hand, efforts are made to maintain the concept of the Rechtsstaat as the defining and honourable codification of the relationship between state, law and citizens in Denmark.

This is also how The Refugee Board describes itself on its homepage, www.fln.dk

PET: Politiets Efterretningstjeneste (The Danish Security Intelligence Service).

Even if it has no impact on the elaboration of the theme of this essay, it can be added, that information collected by the Refugee Boards while interviewing asylum seekers is subsequently handed over to the Danish secret services—whether this also includes also the Schengen Information System, Eurodac, etc., is left in the dark.