Situating the human rights project within the state of emergency;
an examination of biopolitical theory
Sasha Ines Brown
Human Rights Bachelor 12 credits
Spring 2019
Abstract
The state of emergency presents an array of problems for the protection of human rights. Foucault’s biopolitics and Agamben’s concept of the state of exception have been instrumental in the formula-tion of analyses which seek to understand the full extent of this area of tension. However, there is scope for the study of the state of emergency in a theoretical context which situates this mechanism within the broader scheme of human rights. In drawing upon these spheres of study and taking a distinctly theoretical approach to the research problem, the aim of this paper is to reappraise the ways in which commonly cited theories are applied.
Keywords: Foucault, Agamben, biopolitics, state of emergency
Contents
2. Research question . . . 4
2.1. Subquestions . . . 4
3. Method . . . 4
4. The state of emergency . . . 6
5. Country case examples . . . 10
5.1. France . . . 10
5.2. Turkey . . . 10
6. Review of the literature on derogating states . . . .10
7. Theory: Biopolitics; Agamben vs. Foucault . . . . . . 13
7.1. Sovereignty . . . 13 7.2. Modern paradigms . . . .17 7.3. Security . . . 19 7.4. Securitisation . . . 21 7.5. Law . . . .25 7.6. War . . . 29 7. Conclusion . . . 34 8. Bibliography . . . 37 1. Introduction
There is ample evidence to suggest that there exists a persistent area of tension between human rights and the sovereign right of government to declare a state of emergency. In the event of a per-ceived threat to the nation, it is possible for the state to derogate from specific obligations to which,
in normal circumstances, they are legally bound according to certain human rights treaties. The po-tential for a conflict of interests arising out of the use of such provisions has produced a wealth of literature which by turns condemns its use and justifies its application in certain circumstances. Within this body of literature, analysis of the state of emergency as a governmental technique often relies on certain theories and concepts; namely that of Giorgio Agamben’s state of exception, gener-ally with a focus on the legal contradictions presented by the use of emergency measures. Often, this form of analysis departs from the work of Foucault on the concept of biopolitics, yet the origi-nal formulation of the theory is under-explored as a means of better understanding the complex mo-tivations and networks of power behind the state of emergency in the twenty-first century.
The aim in the undertaking of this paper is to explore the potential of the theory of biopolitics in ac-counting for the broader context of states of emergency and its fundamental relationship with hu-man rights. Current examples of the use of the state of emergency will serve to illuminate the accu-racy of the theory and its bearing on the study of human rights. By focusing on the theory itself and by using the cases of emergencies in France and Turkey as an analytical tool, the paper will seek to contribute to an existing body of literature by elucidating the content of the theory and situating both the state of emergency and the human rights project within the theoretical framework.
In tandem with the use of contemporary examples of the use of the state of emergency, the modern concepts of securitisation and preparedness will be analysed through the biopolitical lens. This con-nection will serve to further illustrate the aptitude of the theory in analysing the impact of twenty-first century security imperatives on the protection of human rights. Following an introduction to the phenomenon of the state of emergency and to the central theory according to its proponents, the paper’s analysis is embedded within the discussion of the theory itself via central concepts and their relation to empirical examples.
The analysis is divided into subsections which denote which conceptual element of the theory is be-ing analysed and linked to the empirical country examples. The structure of the paper and the order in which key themes are addressed is based upon the concentric concepts which emerge within liter-ature on biopolitics. Similarly, aside from a brief review of the literliter-ature on the matter of derogating states during emergencies, reflections upon the relevant literature are integrated as a part of the pa-per’s analysis. This is partly in order to facilitate a thorough understanding of the literature’s rele-vance to the theory, and also due to the fact that for the most part, the literature and theory are inex-tricably connected.
2. Research question
How can the theory of biopolitics help generate a better understanding of the tension between the state of emergency and its implications for human rights?
2.1. Subquestions
- What is the relationship between Foucault and Agamben’s respective understandings of biopoli-tics?
- How do the examples of France and Turkey’s states of emergency illustrate this relationship? 3. Method
While the theoretical character of this paper and the work of Foucault and Agamben will guide the approach to and structure of the work, the chosen method is that of conceptual analysis. This method enables a systematic examination of the concepts central to the main theory of this paper. Biopolitics is clearly the central and overarching concept but, as will be shown, is itself composed of several key and recurring conceptual ideas, themselves forming concentric circles around the central theory.
The fact that the ideas of two prolific contributors to the theory will be focused upon means it is all the more important to have a way of addressing each concept in turn. This will enable an element of comparison and contrast between these two figures who, when synthesised, stand to contribute to a meaningful reassessment of the problem of the state of emergency in relation to the protection of human rights.
Consistent with the philosophical underpinnings of this paper, conceptual analysis is frequently har-nessed as a means of guiding philosophical inquiries into, depending on the particular school of thought, philosophical concepts or conceptual thought more generally. The conceptual analysis con-ducted within this paper is guided by Frank Jackson and David Lewis, who both consider the method to have broader application than has tended to be considered (Laurence and Margolis, 2003 p. 254). The concepts outlined and then analysed in context within each section of the following work are by no means exclusively philosophical; rather Agamben and Foucault have incorporated lay concepts into a philosophical and, at times sociological, body of work. This body of work, par-ticularly for Foucault, concerns the issues associated with power and the myriad connotations this particular concept has in its own right (Bosch, 2016 p.9).
Conceptual analysis allows for the a priori nature of much of the work of each theorist but does not preclude the incorporation of the empirical examples used in this paper. In fact, this methodological approach to the research problem means reasonable connections can be made between the theory and contemporary events which this paper suggests exemplify some of the theory's central concepts (Jackson, 2000 p.48).
Further, consistent with the theory focused on in this paper, conceptual analysis in this context is emblematic of Foucault’s ‘genealogy’; an approach to the historical evolution of certain practices which highlights their modes of operation in a given context (Koopman, 2017 p.107). For the pur-poses of this paper, it is concepts such as that of sovereignty, war and racism which require further analysis in order to shed light on the state of emergency and how this interacts or conflicts with the essence of human rights.
Conceptual analysis lends itself to one of the aims of this paper which is to make connections be-tween discussions which arise in the theoretical context, with the empirical phenomenon being ob-served; in this case, the proliferation of the state of emergency and what this implies for human rights. This empirical element will be embodied by the cases of Turkey and France, as a means of anchoring the pivotal concepts to tangible and contemporary global-political issues bearing on hu-man rights.
The material used is a combination of texts by Foucault and Agamben, and academic literature cit-ing these texts, most of which is derived from scientific, peer-reviewed journals. The most recent literature will show the ways in which the respective theories of biopower are commonly used, par-ticularly in the context of human rights and in understanding the state of emergency. A substantial amount of the literature used also helps form and provide support for the following discussion and ultimately the paper’s concluding observations. A combination of UN reports and scientific journal articles are also drawn upon so as to establish the facts of the events in France and Turkey.
Due to the almost infinite range of situations precipitating the declaration of a state of emergency, the choice of country examples employed as part of this paper’s analysis reflects the fact that they are both situations emerging from some level of violence which is deemed to exceed the remit of standard policing powers and criminal procedures. This focus is in part a means of narrowing the wealth of literature which considers the emergencies triggered in the aftermath of natural disasters and which consequently examines the scope of international humanitarian law and the role of
non-state actors and international organisations. Such situations are liable to yield legal and moral ten-sions of their own but none so acute as the friction between the sovereign right of government and human rights during a state of emergency declared following events like the 2015 terror attacks in Paris and the response to the attempted coup d’etat in Turkey the following year.
These recent and contentious examples of states of emergency are particularly pertinent due to the intricate dynamics at play between the concepts comprising the theory of biopolitics. The potential for conflicting interests within a state of emergency invites questions of whether such situations can be justified within human rights discourses and of where human rights themselves figure. This de-bate has occupied much of the literature to date and yet there still lacks a consistent theoretical framework through which to evaluate each case and the broader scheme of human rights. 4. The state of emergency
The state of emergency and its impact on human rights is perhaps best understood by looking to the genesis of the human rights project itself. By taking a somewhat Foucauldian approach to the study of human rights, and tracing its historical underpinning, or rather, its ‘genealogy’, the original logic behind the creation of human rights and their enshrinement in international law can be better under-stood (Foucault, 2003 p.178). By extension, the state of emergency can be incorporated into an un-derstanding of human rights as both a mechanism for the protection of, and as a threat to human rights.
Human rights, as now recognised by law and international custom, originated in response to the events of the Second World War. In a bid to prevent the recurrence of atrocities like those perpe-trated under Nazi rule, the United Nations was formed and an international bill of rights, in the form of the Universal Declaration of Human Rights was established (Nickel, 2007 p.8). The problem of war and the threat posed by a rogue and racist state coalesced in the minds of the allied powers after the Second World War and provided the impetus for the institution of legal mechanisms which would protect populations from abuse. This consensus gave rise to a formal and internationally agreed-upon encoding of human rights proper. To this end, rights are originally understood to be levelled at the sovereign, and function ostensibly as limits to its power.
A state of emergency is triggered in response to a perceived national crisis; be it economic crises, natural humanitarian disasters or a terrorist attack (Criddle, 2016 p.15). Such situations are often accounted for in a state’s constitution but nonetheless a state must abide by international human
rights law and adhere to the limits set by the conventions to which the state is bound. Two key in-ternational covenants to which both France and Turkey are bound following their respective ratifi-cations, are the International Covenant on Civil and Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Both cove-nants have their own derogation clauses wherein exceptional circumstances are accounted for and which allow for the departure from certain rights obligations for which the state is ordinarily re-sponsible.
The ECHR’s derogation clause is contained with Article 15 which states;
In time of war or other public emergency threatening the life of the nation any High
Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. (ECHR, art. 15.1) The significant caveat to this allowance is the number of non-derogable rights which the state can-not legally override, regardless of the apparent exigencies of the situation. This includes the right to life (except for during war), freedom from torture and the prohibition of slavery. Similarly, the IC-CPR allows for derogations in Article 4 of the Convention. The list of rights from which states may not derogate, even during an emergency, is more extensive and includes freedom of thought, con-science and religion. Furthermore, the ICCPR includes a non-discrimination clause whereby states’ emergency measures may not ‘involve discrimination solely on the ground of race, colour, sex, lan-guage, religion or social origin.’ (ICCPR art. 4.1).
Herein lies the paradox inherent in human rights; their legislature places stringent limits upon the exercise of sovereign power, so as to protect populations from abuse by their governments. This is the human rights project’s raison d’être and yet, integral to the rights associated with sovereign power is the ability to transgress this limitation by delineating states of exception, something which the creators of human rights laws were expressly working to guard against.
The varying perspectives on the interplay between the state of emergency and human rights can be roughly grouped into two opposing arguments. On the one hand, the ability to declare a state of emergency during exceptional circumstances is said to enable the state to provide more effective rights protection without committing serious rights violations in the process. On the other hand,
there is a critical body of literature and commentary by rights organisations which argues there is an inevitable clash of interests arising from the use of emergency measures.
The perspective that recognises the legitimacy and supports the use of the state of emergency can itself be divided into separate modes of understanding. Criddle (2016) outlines how one model per-ceives the various international treaty bodies as being the ultimate arbiter of what constitutes legiti-mate derogation in times of emergency. This perspective frames the state of emergency as a ‘safety valve’ when the potential for a clash of interests in exceptional circumstances arises. However, the legitimacy of this mode of governance depends not only on the pretext of an existential threat but also the rigorous oversight of international treaty bodies to whom the derogating state must ulti-mately defer (Criddle, 2016 p.33).
Criddle juxtaposes this latter mode of understanding with another which is typified by the ‘“margin of appreciation” jurisprudence of the European Court of Human Rights’ (Criddle, 2016 p.33). To note, the somewhat controversial doctrine of the margin of appreciation requires that ‘international courts ought not to replace the discretion and independent evaluation exercised by national authori-ties’ (Criddle, 2012 p.42) (Shany, 2005 p.910). This understanding of the state of emergency is more expansive in its conception of states’ right to derogate, due in part to the premise that a state of emergency helps facilitate the effective prioritisation and management of human rights and that the government of that state is best positioned to decide how this might be done. This particular an-gle looks upon the derogation from human rights norms somewhat more favourably.
Like Criddle, Kadelbach and Roth (2017) draw upon this particular understanding in order to con-struct a defence of the state of emergency. In doing so, the authors suggest that there is nothing in-evitable about emergency measures leading to human rights abuses as long as they are implemented lawfully. In fact, Kadelbach and Roth ultimately argue that the state of emergency is just one com-ponent of a broader set of mechanisms within international law which facilitate the optimal protec-tion of human rights during situaprotec-tions which pose an existential threat to the naprotec-tion, as permitted by Article 15 of the ECHR.
However, the authors do pay special attention to the threat of terrorism and the particular challenges this poses to the protection of human rights in conjunction with states’ obligations to uphold obliga-tions pertaining to national security. They conclude by arguing that the frequency of derogaobliga-tions from constitutional obligations, as well as those provided for by international human rights
conven-tions, are part of a broader ‘environment that appears more and more hostile to human rights stand-ards.’ since the events of 9/11 (Kadelbach and Roth, 2017 p.6). Neither Foucault or Agamben’s re-spective contributions to the theory of biopolitics are concerned with the problem of terrorism per se. However, key concepts such as security strongly point to biopolitics’ pertinence in conversations about rights in a world deeply concerned by the perpetual threat of terrorism.
A focus on a supposed paradigm shift triggered by the advent of the ‘war on terror’ is a common feature within the existing literature on the subject of states of emergency. Armitage uses the fight against terrorism and its accompanying political discourse as a vehicle for exploring the issue, and focuses on the enduring state of emergency in the US and UK respectively (Armitage, 2002). The use of such country examples is indicative a particular understanding of what constitutes a state of emergency; one that exists outside the realm of the legally and officially recognised time-period and instead describes a security paradigm and the political climate underpinning it.
Armitage is one of the many contributors to the field who invoke the notion of ‘total security’ which is akin to what was originally understood by Giorgio Agamben as a permanent state of emer-gency. Indeed, Agamben’s formulation of the state of exception is what appears to give the author his particular understanding of the state of emergency (Armitage, 2002 p.37). Armitage employs discourse analysis throughout this work, examining the deployment of certain rhetoric by leaders of the countries focused upon in relation to the terrorist attacks which were seen to necessitate emer-gency measures indefinitely. This is an obliquely Foucauldian approach to analysis and in melding the contributions of each theorist, Armitage exemplifies the common approach to the problem of human rights in a state of emergency.
5. Country case examples 5.1 France
France experienced a prolonged state of emergency which was initially triggered in response to a terrorist attack in November 2013 but was then extended several times over the subsequent two years, during which time the country suffered an additional attack (Boutin and Paulussen, 2015 p.232). Despite the initial apparent proportionality of the decision to respond in this way, the measures taken as part of the state of emergency have been the source of heavy criticism. The measures included the use of warrantless raids and searches and the placement of individuals under house arrest, prohibition of meetings, the passing of curfews and closure of certain associations and associated public venues (Boutin and Paulussen, 2015 p.2).
5.2 Turkey
In 2016, Turkey experienced an attempted military coup which resulted in hundreds of deaths. The Turkish government responded with a state of emergency immediately after halting the coup at-tempt (Ruys and Turkut, 2018 p.540). The measures taken in the wake of this event have been strongly criticised and a multitude of human rights abuses have been alleged. Criticism has focused on the arbitrary and disproportionate nature of the measures taken, including ‘mass dismissals of civil servants and private sector employees’, ‘arbitrary detention of people arrested under state of emergency measures’ and ‘restrictions of the rights to freedoms of expression and of movement’ (OCHCR, 2018b). Further concerns have been raised by the indiscriminate nature of some punish-ments and the sense that family members and associates of individual suspects have been unfairly targeted by the measures (OCHCR, 2018b).
6. A review of the literature on derogating states
The prevailing discourse in current literature tends to make a distinction between liberal democra-cies and dictatorships, or otherwise illiberal regimes, as a means of justifying or condemning certain emergencies. In using juxtaposing country examples, this dichotomy can be better understood and critiqued. Understanding the countries themselves is crucial in forming a sense of biopolitics work-ing durwork-ing each nation’s recent use of the state of emergency.
In observing the pertinence of the two country examples, it is important to consider their respective pasts; France is a former colonial empire and Turkey, although never colonised, gained internation-ally recognised independence from the former Ottoman Empire in 1923 with the signing of the Treaty of Lausanne (Mango, 2009 p.74). So, while sharing a liberal constitutional foundation, each nation is at different points in their economic and social development.
France continues to be upheld as an example of liberal democracy, its constitution underpinning the law’s operation so as to secure the rule of law and thereby the rights of the individual (Cormack, 2018 p.252). The contrast between a country with this history and the somewhat more tenuous posi-tion of Turkey is striking. This distincposi-tion can be drawn primarily along economic lines since Tur-key underwent a process of rapid constitutionalisation at a similar time, with the ruling Ottoman Empire inspired by Western enlightenment ideas (Tagharobi and Zarei, 2015 p.440).
Both France and Turkey’s constitutions include their own derogation clauses in Articles 15 and 16, respectively. Both clauses acknowledge the responsibility of the government under international law during such a period of exception; making clear that the constitution cannot be suspended carte
blanche. However, when considered in parallel with that same scheme of international law, the na-tional constitution’s derogation clauses appear as a loophole within a loophole. The combination of the constitutional allowances for a states of exception and the similarly worded articles of the IC-CPR and ECHCR hints, in theory, at the kind of indistinct and potentially lawless zone which Agamben observed. Furthermore, the level of discretion afforded to a state which considers itself to be under threat means that any number of circumstances can be used to justify a departure from both constitutional obligations and rights obligations under international human rights law (Malkopoulou and Norman, 2018 p.447).
Citing Loewenstein, Malkopoulou and Norman determine that certain freedoms and civil rights may be justifiably suspended if the purpose is to protect constitutional democracy. In some ways this is consistent with the logic encapsulated by the derogation clauses in the ICCPR and ECHCR. How-ever, when the constitutional foundation of the derogating nation is sidelined by the emergency measures taken, the justification for the restriction of such freedoms is itself eroded. Deviation from the standard protection of human rights is one facet of Loewenstein’s concept of ‘militant democ-racy’ and this tendency is ‘aimed towards curbing political participation of undesirable political ac-tors’ (Malkopoulou and Norman, 2018 p.445). This resembles Agamben’s understanding of the logic of the camp in that it denotes the process whereby exceptional circumstances are cultivated so as to facilitate the banishment of an unwanted component of the population.
The difference between democratic states and non-democratic countries with manifestly illiberal practices tends to be conflated with ideas around the varying legitimacy of emergency measures taken in each country. Often, Turkey and other countries at a similar stage of economic and social development are depicted as being more likely to be in breach of human rights while France and other Western democracies are perhaps seen as managing exceptional situations more carefully. In their empirical study of derogation habits of various nations throughout the twenty-first century, Hefner-Burton et al. conclude that while democratic states may enter a state of emergency repeat-edly, the judicial mechanisms in place within these states offer a sense of accountability which is lacking in states with weaker judicial oversight (Hafner-Burton et al. 2011 p.701). The link between democracy and robust legal mechanisms may be justified, yet the point of repeated derogation within democracies occurring just as much as within undemocratic states is somewhat overlooked. It appears that a process of normalisation of the exception is underway, even within liberal democ-racies, to the extent where this mode of governmentality resembles that of lesser developed, and even autocratic countries (Ní Aeoláin, 2016 p.125). There appears to be a false distinction between
liberal democracies and their autocratic counterparts when judging the legitimacy of measures taken as part of a state of emergency.
The falsity of such a distinction is underlined by considering other key historic country examples. The constitution of the Weimar Republic was as strong an example of democracy as the modern French equivalent but Germany was susceptible to exceptional measures at the hands of dictator-ship. Indeed, the nation which serves as a prime example of liberal constitutionalism also provides the ultimate state of exception in the form of measures taken by the Nazi regime, a historical exam-ple heavily referenced by both Foucault and Agamben. That a country with supposedly robust dem-ocratic foundations could be subverted in ways which facilitated the most infamous case of geno-cide in modern history weakens the common distinctions drawn between derogating nations. This point is reinforced when considering the examples of Turkey and France and the fact that their states of emergency were both predicated upon the same perception of existential threat, framed in similar terms despite the differing circumstances in reality. The alleged human rights violations cannot be said to be more egregious in one country than the other; they either correspond to the exi-gencies of the situation, as stipulated by the respective constitutions and international law or they do not. Disproportionate focus on the individual circumstances of potential rights violations detracts from the observation that the habits of each derogating government resemble one another, despite the nations’ differing reputations with the international arena.
The observation of disparate nations’ converging habits regarding their governing of the exception versus the norm replaces a focus on individual rights abuses, no matter how grievous, with ques-tions over the position of the human rights project more broadly. The apparent normalisation or, at least, the proliferation of the state of exception, lends weight to Agamben’s theory and it is through a Foucauldian analytic of government that his conclusions can be vindicated.
7. Theory:
Biopolitics; Agamben vs. Foucault
The theory of biopower and biopolitics is originally attributed to Michel Foucault but is understood to have been continued and developed by Giorgio Agamben, so as to account for its current mani-festation in contemporary political practices. Biopower can be said to characterise the modern era and was originally defined as centring upon ‘techniques for achieving the subjugation of bodies and the control of populations’ (Foucault, 1978 p.140).
The focus on the control and discipline of individual bodies initially emerged around the seven-teenth and eighseven-teenth centuries. This form of power later underwent an additional transformation whereby the knowledge gleaned from the biological individual was harnessed in order to gain con-trol over the population as a mass of individuals, in their ‘multiplicity’ and so became biopolitics per se; the ‘power that is not individualizing but… massifying, that is directed not at man-as-body but at man-as-species.’ (Foucault, 2003 p.242-243).
7.1. Sovereignty
The respective takes on the theory diverge primarily in terms of how each theorist conceives of sov-ereignty and sovereign power’s presence and relevance in the modern era. Agamben’s understand-ing of sovereignty produces his notion of the state of exception whereas Foucault’s assessment means his theory of biopolitics is somewhat more fragmented, incorporating an account of the para-digmatic nature of war discourse and its accompanying ideology of racism. Foucault emphasises the multiple forms of power and the diversity of their action. In either case, sovereignty, or that which has replaced the sovereign as the locus of political power and knowledge, has the security of the na-tion state as its primary interest (Kadelbach and Roth-Isigkeit, 2017 p.276).
For Agamben, there is an integral connection between the sovereign and the state of exception. The power to declare a state of exception is innate and unique to the sovereign which thus occupies the paradoxical position both inside and outside of the ‘juridical order’; that is, the sovereign exists within and without the law (Agamben, 1998 p.17). Upon the triggering of this state, the law is ap-plied through a process of its revoking; the legal order is suspended within this emerging ‘zone of indistinction’ and yet the legal apparatus facilitating such exercise of power by the sovereign per-sists (Agamben, 1998 p.11).
Agamben muses on the paradoxical core of this sovereign figure and encapsulates this apparent contradiction with the term ‘inclusive exclusion’ and through this anomaly, he comes to define the essence of sovereignty. This understanding points also to the tension between sovereign power and human rights and further implies that rights claims should indeed be directed toward the sovereign inasmuch as this is the centralised locus of power.
In the State of Exception, Agamben elaborates on the notion of the exception by examining the situ-ation triggered within contemporary states whereby the suspension of law in times of crisis ulti-mately creates a ‘no-man's-land between public law and political fact, and between the juridical or-der and life’ (Agamben, 2005 p.1). In this work, he appears to reposition his own contribution as a
derivative of Carl Schmitt’s definition of the sovereign; “he who decides on the state of exception” (Schmitt cited in Agamben, 2005 p.1). This association further denotes Agamben’s departure from the work of Foucault and yet Agamben insists on the biopolitical nature of the state of exception it-self (Agamben, 2005 p.3).
As previously alluded to, many authors’ work on the state of emergency favours Agamben’s theory of the state of exception over that of Foucault’s biopolitics per se. The reasons behind this departure from Foucault’s work is invariably stated in ways consistent with Agamben’s logic, particularly re-garding the inseparability of sovereignty from biopolitics and the fundamentality of the state of ex-ception to sovereign power. As mentioned, Dillon and Reid assert that Foucault fails to synthesise some key concepts and this primarily concerns Foucault’s insistence on the separation of the sover-eign and the emergence of biopower. The authors use Agamben to fill this area of omission by in-voking the ways in which Agamben shows sovereignty to be ‘a strategy of power with its own pe-culiar modus operandi’ (Dillon and Reid, 2000 p.128).
Dillon and Reid further draw upon Agamben’s take on this form of power and discuss the fact that he frames sovereign power as seeking to maintain its own power over life in ways similar to the bi-opower of ‘governmentality’ as described by Foucault before him (Dillon and Reid, 2000 p.128) (Foucault, 2009 p.144). The authors insist on the supplementary nature of Agamben’s work to that of Foucault and the respective and somewhat divergent understandings of sovereignty appear to be at the heart of this insistence (Dillon and Reid, 2000 p.126).
The theorists’ differing perspectives on the relevance and role of the sovereign within modern soci-ety hinges upon their differing understandings of the concept itself. For Foucault, the sovereign was the now arcane figure at the centre of a juridical system which existed for the protection of ‘his rights, his power, and the possible limits of his power.’ (Foucault, 2003 p.26). If one is to except this understanding of what constitutes sovereign power then it follows empirically that such a form of domination has receded during the course of the modern era. Yet, the latter point of there being limits to sovereign power is reminiscent of the rationale of human rights which, while honouring the self-determination of the sovereign state, places limits on its power (Kadelbach and Roth-Isi-gkeit, 2017 p.276).
Furthermore, in considering Agamben’s idea of sovereignty, the concept takes on a more ephemeral form in that sovereignty’s power is in its use as technique as opposed to its reign over a population as a physical entity. To this end, Agamben’s idea of the sovereign is strikingly similar to Foucault’s
notion of ‘governmentality’. Governmentality denotes the configuration of ‘institutions, procedures, analyses and reflections, calculations, and tactics’ which operate, with ‘the population as its tar-get… and apparatuses of security as its essential technical instrument.’ (Foucault, 2009 p.144). To this ends, there seems, in spite of Agamben and his contemporaries’ insistence, a convergence in the theorists’ ideas about the workings of sovereign power.
One significant difference however is Foucault’s emphasis on the history, or ‘genealogy’ of power (Foucault, 2003 p.12). The transformation of power relations within modern society hinges upon the change from a singular sovereign which held the right to ‘take life and let live’ and the simulta-neous ‘emergence of a power that… in contrast, consists in making live and letting die.’ (Foucault, 2003 p.247). So Foucault does not in fact omit a discussion of sovereign power but rather conveys the point at which it began to recede as corresponding with the advent of biopower. This is the point at which Agamben departs most significantly from Foucault; where the latter sees in biopower the transformation of power’s mode of operation, Agamben instead suggests that sovereign power and biopower are ultimately indistinguishable.
Foucault advocates an analysis of power which is conducted ‘by looking at its extremities, at its outer limits… and especially at the points where this power transgresses the rules of right that or-ganize and delineate it…’ (Foucault, 2003 p.27). It is striking how emergency measures taken by the state and the governmental transgression of boundaries set by human rights law appear as mani-festations of power’s outer reaches. Foucault’s observation indicates that the study of power in the context of measures taken by governments during emergencies are in need of further analysis, if not in their own right, then at least as a device for illuminating the wider scheme of power relations. This could easily be said to encompass the broader human rights regime and its own biopolitical agenda.
Yet, Agamben is clear that sovereignty itself cannot be confined only to the realm of the legal, or indeed reduced to just political terms. Sovereignty belongs to a more expansive structure; one which concerns life and the control over it and indeed sovereignty is at liberty to exercise such power over life through the wholesale abandonment of it (Agamben, 1998 p.23). Importantly, Agamben constructs the figure who comes to occupy the zone of indistinction whom he calls ‘homo sacer’; he or she who has been reduced to ‘bare life,' who is stripped of political status and thus find themselves exposed to violence and vulnerable to killing by anyone. The threat of violence to which the figure of homo sacer is perpetually exposed is unbound by law, as per the definition of the state of exception.
This mode of understanding is inherently biopolitical in that Agamben conceives of a type of power which is always preoccupied with life itself. Indeed, in introducing his own work on the notion of
homo sacer, Agamben positions himself in Foucault’s wake and situates his own work in a way that
implies the continuation of what Foucault himself never fully developed. This tends to be the way in which Agamben’s work is positioned by subsequent writers. Yet, there is significant departure from Foucault’s own model of sovereignty or whatever else might be said to better represent this form of power, and this deviation is particularly marked when considering the state of exception; a realm which, in juridical terms, equates to a ‘state of emergency’; where ordinary rights obligations are effectively suspended in order to permit a nation’s government to better address exceptional cir-cumstances (Armitage, 2002 p.27).
Dillon and Reid stress that, ‘we have to theorize sovereign power in a way that Agamben does, and Foucault never quite did…’ (Dillon and Reid, 2000 p.127). Agamben’s contribution is framed as providing the theory necessary for the synthesis of sovereign power with Foucault’s concept of ‘governmentality’ in order to ultimately establish the ‘zone of indistinction’ as posing distinctly po-litical questions (Dillon and Reid, 2000 p.139). The corollary of this position may be valid in that the philosophical problematisation of power produces problems of a political nature, but the asser-tion that Foucault fails to theorise sovereignty is potentially misleading; rather his definiasser-tion of the concept and his assessment of its relevance within modern society differs from Agamben’s. In constructing the central concepts of biopolitics, Foucault seeks to navigate the problem of sover-eignty in a way that ultimately transcends the notion of the sovereign as the epicentre of power within modern society (Foucault, 2003 p.27). Crucially, Foucault indicates an intention to explore and understand the procedures through which power operates and in doing so, he carves out the premise for an understanding which is much more diffused in nature than Agamben’s idea of sover-eignty might suggest (Foucault, 2003 p.27). Foucault maintains that soversover-eignty alone cannot ‘pro-vide a concrete analysis of the multiplicity of power relations’ (Foucault, 2003 p.43). Indeed, it is this multiplicity of power techniques which is denied by Agamben’s commitment to the idea of the state of exception being the essential mode of sovereign power. Furthermore, just as Agamben’s concept of sovereignty implies that human rights must be accounted for by that sovereign figure, Foucault’s understanding implies that human rights must navigate a more fragmented terrain, with no singular entity bearing ultimate responsibility for said rights.
Both Foucault and Agamben’s respective theories converging on biopolitics are guided by what each author considers to be the paradigm of the modern era. For Agamben, this is the paradigmatic significance of the camp, and for Foucault there is a paradigmatic quality to the themes of war and racism. Each model informs biopolitical ways of understanding the phenomenon of the state of emergency in relation to human rights.
The paradigm of the camp is reminiscent of Foucault’s earlier understanding of nomos; the realm in which customs of law and money constitutes the political space of the city. Indeed, Agamben posi-tions his own model of the camp as the modern rendering of the nomos in that the exclusion from and, at the same time, abandonment to the nomos is inflicted upon individuals deemed ‘impure’ and dangerous and who therefore must not be afforded access to the political realm (Foucault, 2013 p.188). These individuals, having been excluded from political society, come to occupy the state of exception.
Exclusion, namely as a technique for the normalisation of society, is also important in gaining an understanding of the management of impending crises in Foucault’s biopolitical society. However, exclusion of a different and arguably more tangible kind is central to Agamben’s state of exception. As evidenced by the chapter title alone, in Agamben’s the State of Exception as a Paradigm of
Gov-ernment the author establishes that, ‘the state of exception tends increasingly to appear as the
domi-nant paradigm of a government in contemporary politics’ (Agamben, 2005 p.2).
The paradigm of the camp is what lends the state of emergency its sense of permanence (Agamben, 1998 p.96). This assertion has been instrumental in the emergence of arguments that suggest the twenty-first century use of emergency measures is symptomatic of a broader reality, invariably termed a ‘permanent state of emergency’ (Neocleous, 2008 p.193). As mentioned, this development is frequently tied to the so-called war on terror which itself has generated a securitised depiction of the world, something which will be discussed in greater context later.
While war and racism in Foucault’s understanding of modern society comes to define the delinea-tion of power and societal reladelinea-tions, the pervasiveness of ‘the camp’ is, for Agamben, ‘the biopoliti-cal paradigm’ of modern Western society but its existence is equally informed by a certain level of racism (Agamben, 1998 p.102). The merging of politics and life itself is informed by a racism which transcends mere biology and instead comes to constitute the bare life of homo sacer (Agam-ben 1998 p.85). The perpetually vulnerable figure of homo sacer, having been excluded from the
political realm, is reduced to his biological form, with none of the socio-political recognition usu-ally afforded by citizenship status (Agamben, 1998 p.72, 76).
Agamben reimagines the significance of the camp; departing from the example of the Holocaust and the significance of the camp as physical zones, he develops a model of understanding which suggests the camp exists elsewhere in modern society and is a key biopolitical function, founded on the state of exception (Agamben, 1998 p.72). The absence of all legal protection usually afforded to human beings by virtue of their citizenship of political society renders those within the camp prone to any amount of violence.
In the context of the state of emergency, there is a marked difference between the permanence of the state of exception, the pervasiveness of the camp and exclusion from and by the nomos. Impu-rity is a ‘decree’ discharged by the political sphere (Foucault, 2013 p.178). In contrast, the camp as per Agamben’s definition is ‘a new and stable spatial order’; it takes forms other than that seen originally in the context of the Holocaust but nonetheless continues to occupy a physical space, such as that of the hospital (Genel, 2006 p.56) (Agamben, 1998 p.94). To this end, the camp ‘ap-pears to result in a rather reductive paradigm’, since it denotes the central means by which sover-eign power implements biopower, whereas Foucault understands power as being significantly more dynamic and heterogenous (Genel, 2006 p.57). Foucault’s understanding shows there to be a certain dialectic between the acts precipitating the state of emergency and those which then actually com-prise the state of emergency and in turn present problems in terms of rights protection. By derogat-ing from certain rights obligations, the state affords itself the opportunity to engage in a struggle with those deemed responsible without recourse to war in the conventional sense.
7.3. Security
Biopower is conceived by Foucault as having arisen in the context of an increased focus on the bio-logical by the state around the seventeenth and eighteenth century (Foucault, 2003 p.240-242). Around the point at which biopower can be said to have first emerged, certain techniques of power with the human body as its subject, and ultimately the object of knowledge, begin to appear (Fou-cault, 1982 p.788). Thus, society witnesses a new fixation on the human body and biological life which is constituted so as to appear central to the integrity of the state (Foucault, 2003 p.246). The regulation of this newly sacrosanct biological life was originally regulated through the imple-mentation of disciplinary techniques. These techniques focused on the individual body and its falli-bilities were the subject of great concern for the state. Therefore, the development of medicine and
hygiene were paramount in securing the wellbeing and integrity of the nation as a whole (Foucault, 2003 p.244). However, towards the end of the eighteenth century, there grew an awareness of the value of individuals in their aggregate, that is, as a species or population (Foucault, 2003 p.245). Where ‘the theory of right basically knew only the individual and society… [and] disciplines, for their part, dealt with individuals and their bodies in practical terms,' biopolitics frames the popula-tion as a whole as a distinctly ‘political problem’ (Foucault, 2003 p.245).
Security in the context of Foucault’s work is framed as a central component of the myriad tech-niques deployed by disciplinary society (Foucault, 2009 p.21). As part of the mapping of a larger shift in the configuration of power at the dawn of modernity, Foucault depicts a society which has become increasingly preoccupied with ideals of security. This is to an extent where various preex-isting mechanisms and institutions of ‘social control’ are harnessed in conjunction with those ‘with the function of modifying something in the biological destiny of the species’, and imbued with se-curity imperatives (Foucault, 2009 p.25). In this sense, the process of securitisation might be better framed in Foucauldian terms as ‘the biopoliticisation of security’, not least because of the near syn-onymity of biopolitics and security (Dillon and Lobo-Guerrero, 2008 p.265-266).
A preoccupation with the population as the aggregate of individually disciplined biological bodies is fundamental to an understanding of the state of emergency as a modern phenomenon. Discipline is a technique which ‘involves examination, observation and supervision’ (Peggs and Smart, 2018 p.63). Surveillance emerges as a key disciplinary technique within the state of emergency. One such measure taken in France involved the subjection of suspect individuals to house arrest and the ac-companying requirement to ‘check in with police’ and ‘appear at a police station up to three times daily’ (Vauchez, 2018 p.705). Similarly, the state of emergency in Turkey was the catalyst for the intensification of the ‘government’s efforts to collect personal data and monitor online communica-tions’ (Yesil and Sözeri, 2017 p.545).
This latter example of surveillance techniques evokes a sense of Foucault’s panopticon, whereby the extension of prison-like modes of constant surveillance engenders the sense of an omnipresent state to the extent that whether or not an individual is in fact being monitored, he or she will behave as though they were (Foucault 2009 p.94). Thus, they come to discipline themselves to behave in way consistent with the dominant and state-sanctioned ideology. Internet surveillance, as carried out during Turkey’s emergency, is relatively indiscriminate, particularly in comparison to the ways in which surveillance was carried out during France’s state of emergency. The country’s Muslim and Arab populations were disproportionately targeted by the measures (Human Rights Watch,
2016). The detention of individual bodies comprising particular groups within the population, be that along racial, ethnic, religious or even political lines, serves the dual purpose of punishment and regulation which ultimately aids in the reconstitution of the population (Fassin and Kutz, 2018 p.103).
Matters of security uphold the biopolitical fixation on the observable and that which can be quanti-fied through constant monitoring and data-gathering. Further, just what is being observed and ulti-mately controlled can extend to the realm of belief and political ideology (Lentzos and Rose, 2009 p.234). As mentioned, those associated with the Gülen political movement were the main target of security measures in Turkey, although a key criticism of later decrees was their ‘sweeping’ and ap-parently indiscriminate nature (Ruys and Turkut, 2018 p.541). This is a group which, despite its ill-defined status and role in the coup, was deemed to have ‘infiltrated’ Turkish society as a terrorist organisation. It was then those suspected of being affiliated with the Gülenist movement who be-came the subject of heightened scrutiny and data-gathering (Ruys and Turkut, 2018 p.540). The preoccupation with monitoring and data-gathering is in fact shared by the international human rights bodies which oversee the implementation of the rights enshrined in treaties like the ICCPR and ECHCR. To this end, a biopolitical account of the state of emergency in relation to human rights must encompass the human rights framework itself and the organisations which ‘reconstitute the problem of political sovereignty’ (Reid, 2006 p.57). The human rights instruments and the or-ganisations behind them are also units of power, should they be incorporated into a truly Foucauld-ian framework. To extract human rights from their political trappings omits a key consideration necessary for a full understanding of their role in facilitating but also regulating states of emer-gency.
7.4. Securitisation
Securitisation theory is centred upon the discursive division between the normal and the exceptional and the reframing of the issues constituting the abnormal or exceptional as matters of security; ‘In other words, securitization combines the politics of threat design with that of threat management.’ (Balzacq et al. 2016 p.495). Balzacq acknowledges the ways in which perspectives on the theory have diverged since its inception with the Copenhagen School whose understanding centred upon the ‘linguistic construction of security issues’ (Balzacq et al. 2016 p.496). The theory of securitisa-tion has tradisecuritisa-tionally been concerned with discourse but there has been significant ‘debate over the conditions under which securitization is successful and whether securitization necessarily entails spoken discourse.’ (Balzacq et al. 2016 p.501).
Again, in relation to the state of emergency, the absence of a singular discourse does not necessarily preclude an analysis through the lens of securitisation theory. Since the criteria for derogation in-scribed in international law is predicated upon the notion of an immediate threat to the life of the nation, in declaring a state of emergency the government essentially sets and underscores a certain security discourse. As will be discussed shortly, this discourse is, above all, one of preparedness. In this sense, the absence of a definitive spoken or textual discourse has little impact on the strength of the message disseminated to the ‘audience’; in this case, the general population (Balzacq et al. 2016 p.499). Instead, securitisation can in this context be used as part of a ‘practice approach' fo-cusing on ‘security interactions without relying on discursive premises.’ (Balzacq et al. 2016 p. 506). Similarly, one possible permutation of securitisation theory which has gained traction more recently is that guided by Foucault’s notion of governmentality. Balzacq et al. effectively argue in favour of an amalgamated form of securitisation theory and a Foucauldian ‘analytics of govern-ment’ (Balzacq et al. 2016 p.497). This analytical approach is ‘integrative’ in character and is mark-edly similar to the kind of analysis to which securitisation theory lends itself (Balzacq et al. 2016 p.497-498).
Recent literature has focused intensely upon the exceptional measures set in motion by the events of 9/11. Indeed, this was a prime manifestation of the state of exception for Agamben himself, with the measures taken in the months following the attacks illustrating the paradoxical legal measures in-suring the suspension of the law in respect of certain individual ‘living beings’ (Agamben, 2005 p.3). Indeed, the problem of terrorism looms large within the human rights discourse, particularly in relation to the state of emergency.
The enduring threat of a terrorist attack is often the premise invoked by states who declare emer-gencies and this is evidenced in both France and Turkey’s case. The problems of security, terrorism and sovereignty are closely bound and therefore merit an analytic of government which engages with the varied channels and institutions which embody these areas. In examining emergencies which follow events deemed to be terror-related, a ‘marginal area’ emerges and this is the space in which interests of national security and essential human rights can be seen to contest one another (Kadelbach and Roth-Isigkeit, 2017 p.276).
Hansen, in working to qualify and understand the Danish Muhammad cartoon scandal as a case of securitisation, points to the characteristic ‘clash’ of cultures as a means of framing a given crisis.
The idea of an imagined clash within the population along fundamental lines, be they ethnic, reli-gious or otherwise biological, is reminiscent of Foucault and Agamben’s earlier exploration of Nazi Germany’s motives and the Holocaust, which for Agamben epitomises the camp paradigm. Im-portantly, the very events which spurred nations to form a body of legislature and custom which would protect populations from violent governments, are in fact replicated on a micro level by those governments but apparently in the interest of the preservation of the population. At face value, the biopolitics of the modern state appears to share the interests of human rights, but what this amounts to in practice departs dramatically from the essence of human rights law.
Both country examples, especially France and to a lesser extent Turkey, are seen to involve the ‘constitution of ‘the crisis’ as one of civilisational clash’ (Hansen, 2011 p.364). In France, much like the Danish example as analysed by Hansen, the clash was perceived to be between the Islamic world, or at least its culture as manifested within the French population, and the host country or even Western society more broadly. French Arabs and Muslims were disproportionately targeted by the emergency decrees. This portion of the population was constructed as the ‘impenetrable subject’ who, in biopolitical terms, required either stricter regulation or elimination in light of the apparent failure of disciplinary mechanisms to incorporate the Muslim or Arab subject into ‘normal’ French society (Hansen, 2011 p.365).
For Foucault, the process of normalisation is what ultimately produces a disciplinary society and the disciplinary society begets a ‘normal’ society. Emergency measures facilitating more exceptional forms of regulatory interventions are introduced when the usual disciplinary techniques are no longer sufficient; they seek to once again ‘establish an equilibrium, maintain an average, establish a sort of homeostasis and compensate for variations within this general population and its aleatory field.’ (Foucault, 2003 p.246). The norm around which security measures coalesce helps justify the elimination of the abnormal; that which arises through life’s essentially contingent nature and threatens to undermine the survival of the population at large. It also provides legitimation for the racist state and its discriminatory governmental practice.
It is in this light that emergency measures, and the framework of national security from which they emerge, are revealed to be used as corrective tools. Since the backdrop to the events preceding the declaration of a state of emergency is one of a disciplinary society, security can be said to prevail through disciplinary techniques. When the anomalous terror attack or equivalent takes place, the norm is shown to have been in some way breached and, to an extent, the disciplinary techniques of everyday society have failed and so an intervention is called for.
Violence is one of the chief characteristics of the precipitating events in both Turkey and France. Ordinarily, violent disorder would be managed by the national police force under the auspices of the nation’s judicial institutions. These are the institutions through which the disciplinary arm of bi-opower is set in motion and which themselves maintain the process of normalisation. This raises the question of where the threshold of this mode of control is drawn and where exceptional measures are deemed necessary. It appears that when the nature of the disorder is such that criminal law and policing will no longer suffice and the disruption transcends that tier of population control, the threat is deemed to have reached the level of ideology and by extension the survival of the species within that nation. The violence here is not on the interpersonal level but rather between whole fac-tions of the population.
Despite the emergence of the now diverging strands of the theory since its inception, according to Buzan et al., ‘the exact definition and criteria of securitization is constituted by the intersubjective establishment of an existential threat with a saliency sufficient to have substantial political effects.’ (Buzan et al. 1998 p.25). The language of an ‘existential’ threat echoes the phrasing of the
ICCPR and ECHR in determining the nature of situations in which derogations may be permitted. Similarly, this definition and criterion of securitisation appears to denote a certain threshold which must be met in order to trigger a given political response.
In this sense, Foucault has ‘recast obvious and mundane aspects of social order such as “security” in a more contingent and interesting light’ (Hannah, 2006 p.627). In Agamben’s work, and in his cast-ing of the still central role of the sovereign, security occupies a relatively minor position within his understanding of biopolitics. The separation of the camp from the political sphere occupied by the population at large is not framed as a security technique per se. Rather the camp is the characteristi-cally biopolitical space essentially outside of the realm in which political life enjoys legal protec-tion. However, if it is the encroachment of a counter-ideology, that is, an opposing form of
knowledge as power, which forces the government’s hand into declaring a state of emergency and into acting through emergency decrees, then the supposedly inherently apolitical realm to which the aggressors are then banished, is in fact populated by distinctly political actors.
7.5. Law
Contra Agamben, it is not necessarily the absence of legal oversight which endangers life and ex-poses it to the perpetual threat of death. The initiation of a state of emergency is an expressly legal move; it is declared in the interests of transparency and in order to notify international legal bodies
and the international community (Neuman, 2016 p.18). Further, even in instances of rights abuses as part of the measures taken during or following the state of emergency, the state continues to act under the oversight of international law. That an act is in breach of law does not make the realm within which it has taken place an entirely lawless one. The state of emergency, or rather the crea-tion of a state of excepcrea-tion, as a biopolitical strategy ‘does not result in an annihilacrea-tion of the law’ but rather ‘it results in the at least partial transformation of its mode of operation.’ (Tadros, 1998 p.102).
The phenomenon of what has been termed, ‘legislative fever’ both recognises and somewhat under-mines elements of Agamben’s state of exception (Boutin and Paulussen, 2015 p.235). The political environment surrounding the emergency is characterised by hurried legislation; in France this in-volved the passing of multiple anti-terrorism laws and related decrees both before and after the ma-jor attacks and subsequent emergencies, and in Turkey, the government has been criticised for un-dertaking measures leading to the ‘erosion of the rule of law’ due to the bypassing of parliament when legislating for more sweeping governmental powers (Boutin and Paulussen, 2015 p.235-236) (OCHCR 2018b p.2).
The changes made to national law exemplify the kind of state behaviour which creates Agamben’s figure of homo sacer. By acting in extralegal ways to eliminate a perceived threat during a state of emergency and then legislating so as to exonerate such actions by the state once the emergency is declared over, the circumstances which were once considered exceptional by definition, slowly begin a process through which the exception becomes the norm. In light of considerations made about biopolitics and the law in the context of the state of emergency, it is clear that human rights are rendered vulnerable by the law’s biopolitical mode of operation. This is in addition to the two-fold escape route provided by derogation clauses in both the nations’ own constitutions and interna-tional human rights laws.
In showing the acutely legal nature of measures taken both within and outside of the discernible boundaries of the declared emergency, the preoccupation with the formation of a legislative frame-work around the state of emergency also suggests a more pervasive and enduring quality to the state of exception and indeed could reinforce the notion of a permanent state of exception akin to Agam-ben’s camp paradigm. Further, the construction of legal frame of reference around the state of emer-gency itself effectively embeds the state of exception within the nation’s own constitution. This means that even if the state of emergency is not strictly permanent, it is becoming normalised.
If those within the state of exception are ‘let die’ it is a political death and it is the biopolitical agenda of the legal actions taken by the state which operationalises this right of the sovereign. In the case of those subject to the emergency measures taken in France and Turkey, individuals who have been detained, confined to their homes, subject to curfews and those who have lost their jobs as a result of the emergency decrees have been ‘externalised from the body politic’ (Tagma, 2009 p.413). Neocleous observes the degree of consensus upon the notion that the phenomenon of the state of emergency has become so pervasive as to create a ‘lawless world’ in which ‘international law appears to have been abandoned in the name of reason of state and national security’ (Neo-cleous, 2008 p.41). This suggests that the conception of the state of emergency as a zone of com-plete lawlessness rests on the premise of the separation of law from politics (Neocleous, 2008 p.69). Foucault’s understanding of the ‘juridical’ illuminates the interconnectedness of law and politics and in doing so, the state of emergency can be shown to be as legal as it is political. For Foucault, the law cannot be accurately conceived of as rules and sanctions; while the law in one sense does manifest itself this way, the juridical captures a much more intricate and diffused network of power relations (Tadros, 1998 p.76). The juridical is concerned with the power of social influence and cor-responding social sanctions and which responds to certain transgressions. This more nuanced under-standing of the dynamic between law and juridical power helps facilitate a better underunder-standing of the transformation of law’s operation in modern society and the biopolitical techniques this has given rise to. Legislative measures are just one such technique which is evident in the two country examples, yet this is not the only means by which the Turkish and French governments made cor-rections to the perceived transgressions within the population.
Neocleous, while acknowledging the potential for political rhetoric to mislead, cites the example of the response to the 2001 terrorist attacks in the US and how the administration at the time consist-ently framed themselves as ‘upholders of the law’ (Neocleous, 2008 p.70). In establishing the ac-tions of the state in times of emergency as expressly lawful, the political rhetoric effectively frames the enemy as its opposite; a portion of the population which refuses to operate within the law and which therefore poses a threat to the nation. In such a case, the state of emergency is delineated along expressly legal lines. The relevant portions of the population are externalised from the politi-cal life of the population, be that through indefinite imprisonment, or through the implementation of curfews or the banning of certain organisations.
The acts themselves can be framed as being biopolitical inasmuch as they imply a ‘growing recog-nition among extremist groups of the importance of… “biopower” and “governmentality,” relative
to traditional sovereignty, in maintaining social orders.’ (Hannah, 2006 p.627). The diffusion of knowledge and power into a network of institutions and technologies means the power of the state is enacted via the population. In attacking civilians or rather, biological bodies, the attack goes to the heart of a nation’s ideological apparatus. This is something of a subversion of war in the biopo-litical context which regards the ‘participation of populations in war… as a positive, life affirming act’ (Reid, 2006 p.29).
The state of emergency provides an opportunity for instruments of governmentality to reclaim the ‘order of power’ and safeguard the population so as to reestablish the norm which traverses both body and population (Reid, 2006 p.29) (Foucault, 2003 p.39). Both the terrorist attacks in France and the attempted coup in Turkey were constituted as existential threats and the instigators con-strued as terrorists. The acts which apparently amounted to a threat endangering the population in fact involved, even depended upon, the participation of the population.
Foucault invokes the management of smallpox epidemics during the eighteenth and nineteenth cen-tury and this historical example of biopower can be extended as a metaphor in many ways. He ob-serves how smallpox was manifested as a ‘case’ which was not part of the landscape of ‘prevailing disease’ which occurs as an inevitable feature of the country’s population as a whole. When treated as a case, the ‘collective phenomenon’ becomes ‘individualised’ insofar as the disease is seen to oc-cur among certain populations at discernible times, meaning the risk can be both identified and quantified (Foucault, 2009 p.88-89). Furthermore, the very fact that the disease is seen to afflict a particular group, helps form an understanding of who constitutes the risk. The crisis emerges when the society witnesses the rapid acceleration of the disease (Foucault, 2009 p.90). This epitomises the spate of terrorist attacks in France between 2015 and 2016 and goes some way in highlighting the biopolitical nature of the emergency response.
A security discourse which invokes the idea of the eradication of malignant components of the state’s population is apt for the realisation of the biopolitical agenda. Of those suspected or found to be involved in the execution of the French attacks, nearly all of the individuals were identified as French citizens. Similarly, those involved in the Turkish coup attempt were deeply embedded within Turkish society by virtue not only of their citizenship but also by their membership of the national army; a key institution of power. The imperative to rid the population of one of its own constituents is reflective of a key transition in state logic; from a position which maintains a need to defend against the institutions harnessed by the enemy, to a position which states that, ‘We have to
defend society against all the biological threats posed by the other race, the subrace, the counterrace that we are, despite ourselves, bringing into existence.’ (Foucault, 2003 p.61-62).
The breakdown of the criteria for defining the threshold to be met in order for a disease to amount to epidemic and to therefore constitute a crisis helps illuminate the logic of modern states when de-claring a state of emergency. The biopolitics of epidemics points not only to magnitude as a certain criterion but also the value and importance of a discernibly affected portion of the wider population. Criminality is, for any state, part of the prevailing disease; a scourge with which governmentality is concerned but one which can inevitably dealt with by policing institutions and the technologies of power therein, including the powers afforded by governmental institutions by criminal law. Fou-cault considers ‘the medicine of prevention’ to be the approach of a state dealing with the ‘abnor-mal’ within an accepted range; so long as this is sufficient in dealing with the problem, there is no crisis and the techniques employed to manage it are seen as part of the usual machinations of disci-plinary society (Foucault, 2009 p.91).
Disciplinary power is based around the accepted idea that life, by its nature, is contingent and the prospect of risk cannot be entirely eliminated but rather the imperative of disciplinary techniques is the management of contingency (Dillon, 2008 p.310). Governmentality must address this naturally occurring sense of the ‘aleatory’ and indeed ‘biopolitical security apparatuses’ are intensely focused on the inherent instability of lived existence (Dillon and Lobo-Guerrero, 2008 p.283). A state of emergency thus aims to create a transient situation free from the normal level of ‘doubt’ and ‘anxi-ety or apprehension’ and the surrounding discourse helps generate this state by ‘using and indeed intensifying’ the ordinary sense of the contingency.
This framing of anticipatory measures has a legitimising effect for the derogating state; the popula-tion, as audience of the prevailing security rhetoric, is itself prepared for exceptional measures and, ideally understands it as being in the populations’ own interest. This readiness points to the concept of ‘preparedness’; the logic and accompanying language of preparedness extends to the anticipation of many forms of crisis and emergency and ranges from natural disasters to the management of events such as those in the respective cases of France and Turkey (Lentzos and Rose, 2009 p.235). The logic of preparedness provides a conceptual backdrop to the state of emergency and in a politi-cal configuration ‘where power is conceived and exercised at the level of the life of populations’, the participation of the population is key. Through the enlisting of the population and non-govern-mental organisations in the effort to foster an environment of constant readiness for imminent crisis,
