In liberal democracies, states are only allowed to use exceptional measures to a limited extent. They can temporarily suspend the constitution, but solely when confronted with a systemic threat. Nonetheless we currently see an increase of what we refer to as âpolitics of exceptionâ, that is, the use of exceptional regulations in the legal and political realm of contemporary constitutional democracies. Recent examples include the ley mordaza in Spain, the Ă©tat dâurgence in France, the new police laws in several German states as well as many of the emergency measures related to the Covid-19 pandemic. In all these instances, a âpolitics of exceptionâ also includes a criminalization of public street protest. This chapter argues that this phenomenonâwhich encompasses legal discourses as well as political processes and practices,âis instrumental for maintaining and reorganizing state power by framing protest as a destabilizing Other rather than as an integral part of the existing political order. In doing so, states make use of their heaviest weapon, that is, criminal law.
To explore the issue, we draw on three disconnected research strands. Political theory discusses the state of exception as an integral part of the tools and regulations of modern states when dealing with crises. Criminology argues that the governing of protest always takes place under exceptional terms, even when there is no formal state of exception. Post-colonial studies show how a politics of exception has historically been part of the modern state in its colonial practice. So, we will first discuss the criminalization of protest by drawing on the concept of âlarge and petty states of exceptionâ as proposed by Kretschmann & Legnaro (2017, 2018) Second, we will argue that the criminalization of protest is creeping from the social margins towards the societal center, leading to an intensified criminalization of protest and de-democratization. Third, we discuss how the logic of the exception becomes indistinguishable from mechanisms of Othering. We argue that through the politics of exception much current protest is marked as a hostile Other, and hence subjected to the latterâs historic social configurations, including those from (post-)colonial orders. This leads us to conclude that politics of exception do not stand for the opposite of liberal democracy but are an intrinsic part of the latterâs own operating principle.
Large and petty states of exception
While âlarge states of exceptionâ encompass the formal declaration of a state of emergency by state actors, âpetty states of exceptionâ refer to daily exceptional practices enacted by the executive branch (Kretschmann & Legnaro 2017). From a political theory perspective, one can argue that states of emergency are increasingly used for the handling of various kinds of crises (Lemke 2017). Criminological perspectives add an important nuance: contemporary politics of exception also run beyond a formal state of emergency at a microlevel (Kretschmann & Legnaro 2017, 2018), for instance, through (indefinite) imprisonment without trial (Jobard 2017). Finally, post-colonial perspectives emphasize that both large and petty states of exception mirror the relation of Western statehood with colonial rule, that is, a rule of law including its own suspension with regard to colonized subjects, considered as the other side of its governmentality (Mbembe 2011, Bancel, Blanchard & VergĂšs 2003)
In political theory it is commonplace to comprehend a formal state of emergency as a legalâpolitical instrument when facing a crisis, that is, as a provision which is accompanied by a shift of powers from the legislative to the executive branch and by the restriction of basic rights and freedoms (Lemke 2017, 2). Scholars understand formal states of emergency as an expression of crisis due to economic, ecological, or social problems internationally and nationally (Belina 2018). Here, the state of emergency serves as ultima ratio. However, due to the history of European fascism, Western states have become more reluctant to introduce exceptional policies, given their potential tendency towards authoritarianism (Agamben 2004, 9). Since Schmittâs (1922, 2004, 13) right-wing interpretation of the decision over a state of exception as equaling political sovereignty in the sense of a totalitarian state, the latter is also associated with despotic regimes (Linz 2009). One should add that all politics of exception are grounded in different historical, including colonial, conditions. While in France, for instance, the implementation of a formal state of emergency has been used fairly frequently, in Germany it faces high hurdles (Kretschmann & Legnaro 2017).
How do politics of exception relate to the regulation of protests? Where states govern protest through states of emergency, they frame it as a fundamental threat to public order, signaling a readiness to counter it. This was clearly visible in France, where the freedom to assemble was severely restricted or even suspended during the recent Ă©tat d'urgence (2015â17). Demonstrations such as those against labor law reforms were partially banned, activists were placed under house arrest and police powers were extended, for example, those enabling house searches (Jobard 2017).
Post-colonial perspectives emphasize the parallels of such current politics of exception with colonial governing (Stoler 2011, 201). It is argued that âimperialism ⊠provided the main arena in which the state of exception was practiced most vigorously, systematically and violentlyâ (Shenhaw 2012, 19), marked by unlawful police practices, violent biopolitics, and use of coercion and force by the state in a variety of practices. Clearly, todayâs politics of exception are embedded in colonial legacies for example, in the context of France, where contemporary politics of exception, among others, reflect the police dispositif implemented during the Algerian war of independence (1954â62) (Mbongo 2017).
Conversely, criminology has investigated how practices of exception have become increasingly visible in criminal policy, even outside states of emergency. Kretschmann & Legnaro (2017, 321) argue that exceptional legal provisions and police practices have become common within the rule of law, thus gradually shifting its meaning, turning the rule of law into a "state of exception of the second order". Similarly, Fassin discusses instances of racial profiling during routine policing as âpetty states of exception" (Fassin 2014) and thus as manifestations of a security order that governs through exception by dismantling civil liberties, particularly through preventive measures. With regard to policing of protests, this exceptionality becomes apparent in a lower degree of tolerance before a police intervention is triggered (Ferret & Mouhanna 2005) or the application of preventive measures that de facto turn into repression. This is the case when demonstrations are banned because of a forecast of a risk of violence, when preventive detention deprives individuals of the presumption of innocence or when even moderate and peaceful social movements attract increased police intelligence surveillance (Dopplinger & Kretschmann 2014). As such, these politics no longer conform to classical principles of the rule of law (Jobard 2017), thus becoming effectively âilliberalâ.
Large and petty states of exception, however, are not merely juxtaposed, but rather interlock by complementing each other discursively and practically (Kretschmann & Legnaro 2017). They share the common premise of extraordinary threats to the state or the nation, which in turn legitimates politics of exception. Petty states of exception prepare large ones by permanently setting perceptions of threats for which large states of exception are the only logical consequence in the case of more extraordinary occurrences that are framed as âdangerousâ. Inversely, formal states of emergency are frequently an occasion for exceptional legal provisions to be permanently transferred into ordinary law. For instance, in France, legal elements of the Ă©tat dâurgence have been largely transferred into ordinary (criminal) law (Jobard 2017).
Such a âdepartureâ from the rule of law also raises concerns over the preservation of democracy. Criminology regards the tendency to criminalize protest through politics of exception as a development towards a condition of âpost-rule of lawâ (Kretschmann & Legnaro 2017). This resonates with perspectives in political theory on the relation between formal states of emergency and de-democratization processes, resulting in a âsecuritizationâ of Western societies (Agamben 2004, 22). Post-colonial perspectives contribute to such debates, since they contest a narrative about a contemporary shift from âdemocraticâ to âundemocraticâ regimes by bringing into focus those subjects who have always been denied democratic rights, both historically in the context of colonization and today in the form of migration regimes and border control (Castro Varela & Dhawan 2015).
Within this framework, protest is governed by a complex structure of exceptions. The history of Western modern statehood shows that this âdepartureâ from the rule of law is not a new phenomenon. However, the literature demonstrates that there is a qualitative change that indicates a shift in the stateâs approach to protest and thus also in its material understanding of democracy. In the context of protest policing, this change in particular affects protest emanating from the center of society, including liberal protest groups.
Exception as expansion
The regulation of protest through politics of exception follows an expansionary logic: more and more parts of the social are connoted as âthreatsâ reflecting (in-)securitization processes (Agamben 2004, 22). This âsecuritizationâ (Buzan, Waever & Wilde 1998) of protest is. As detailed above, political activism is increasingly subjugated to intelligence gathering by police, as well as criminalization through the criminal justice system. With BonĂ (2011), one might understand such tendencies as part of late modern societies that perceive (in-)security as an uncontainable phenomenon. This contrasts with modern societies, where dangers are perceived to be manageable since they can be known, recognized, and therefore dealt with. This notion corresponds with the short and singular phase of âpenal welfarismââ, which adopted an inclusionary logic underpinned by welfare state policies: the criminal justice system was understood as having the aim to balance social inequalities and unequal opportunities that may lead to crime and deviancy (Garland 2001). This period overlapped with the implementation of forms of protest policing based on communication and dialogue, while at the same time repressive forms of protest policing were also further developed (Kretschmann 2014).
In late modern societies threats are perceived as difficult to foresee and thus volatile and non-containable. The current governing of protest by means of exception reflects this kind of perception of security, insofar as protest is treated increasingly as an incommensurate and particularly intense threat. The notion of an âuncontainable and borderless security spaceâ mirrors the neoliberal state, whose borders are blurred in the course of globalization. The latter is complemented by a discourse on international organized crime framed as a threatening backdrop, which in turn fuels policies of internal security. Crime control, which in the past was primarily conceived as reactive, aimed at punishing criminal offences, becomes preventive, and is transformed into a security policy. Problems framed in social security terms during penal welfarism are now rephrased as problems of criminal policy. The societal focus shifts towards (in-)security in potential, leading to practices aimed at controlling potentially dangerous spaces, locations, situations and populations, while no longer necessarily differentiating between legal and illegal behavior.
This shift results in societies entering a state of perceived overall insecurity, especially with regard to public space. This includes public protest, so that the increased notion of dangerousness described above no longer only applies to protest at the âextremistâ margins, but increasingly also to protests located in the center of society (Belina 2018). Consequently, even protests that are classified as peaceful can be considered a security âproblemâ. Furthermore, demonstrators now often appear as Others and hence as enemies who are not engaging in political participation but rather intent on destroying the state. Policing protest becomes less an ordinary public order issue and more a way of dealing with potential public disorder, sin...
