doi:10.1093/bjc/azp036 BRIT. J. CRIMINOL.

(2009) 49, 686–701

Advance Access publication 12 June 2009

EXCEPTIONALISM AND THE ‘WAR ON TERROR’

Criminology Meets International Relations

Claudia Aradau and Rens van Munster*

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Criminology and International Relations (IR) share a relatively wide vocabulary: political violence,
crime, security, deterrence, war on terror, risk, human rights and freedom. Particularly in the case
of the ‘war on terror’, similar concerns and conceptual tools have increasingly surfaced on both
sides. Nonetheless, one debate—namely Carl Schmitt’s theory of the exception and its uptake in
IR—has travelled less well. This article argues that there is value in engaging with the IR debates
on the exception. From the perspective of IR, the exception makes possible different insights about
the dialectics between law and crime by unpacking the constitutive role of the politics of fear, the
importance of the ‘international’ and the transformed relationship to the future. It also exposes
the deteriorating effects of the ‘war on terror’ on justice, democracy and social transformation.

Introduction
Criminology and International Relations (IR) share a relatively wide vocabulary: political
violence, crime, security, deterrence, war on terror, risk, human rights and freedom.
Despite disciplinary differences, it is perhaps no surprise that criminological and
sociological research on risk and policing has inspired a growing literature in IR. At the
same time, criminological scholars have increasingly drawn on security theories
developed within the field of IR to make sense of criminological issues (de Lint and
Virta 2004; Loader and Walker 2007; Zedner 2007).1 The ‘war on terror’ is no exception.
Critical of the governance of terrorism, criminological and IR scholars have debated the
role of pre-emption, prevention, risk management and anticipation in the war on terror.
Detention, camps, surveillance, prevention, risk, security and liberty have become
increasingly important points of debate within and between both disciplines.2
In an attempt to contribute to the intellectual exchange between criminology and IR,
this article proposes to unpack a debate that has travelled less well, namely Carl Schmitt’s
(1996) theory of the exception and its uptake in International Relations. In IR, torture,
indefinite detention, extraordinary renditions, deportation of foreign nationals
suspected of being a threat, the invasion of Iraq, the flouting of international conventions,

*
Danish Institute for International Studies (DIIS), Strandgade 56, DK-1401 Copenhagen; rmu@diis.dk.
1

Nonetheless, for criminology, IR is often still represented as largely a traditional discipline, dominated by realist understandings
of power politics and the realm ‘beyond the state’ (see, e.g. Sheptycki 2007).
2

In criminology, see Ericson (2007), Ericson and Haggerty (1997), McCulloch and Pickering (2005), Mythen and Walklate
(2008), O’Malley (1992) and Simon (2007a). In International Relations, this flourishing literature includes Amoore and de Goede
(2008), Aradau and van Munster (2007), Bigo and Tsoukala (2006) and Salter (2008). See also the special issue of Security Dialogue
on ‘Security, Technologies of Risk and the Political’, vol. 39, nos 2/3, 2008.

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© The Author 2009. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD).
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 EXCEPTIONALISM AND THE ‘WAR ON TERROR’

increasingly restrictive migration and asylum policies have all revived inquiries into
the role of sovereignty, illiberal practices of liberal states and exceptionalism (Bigo
and Tsoukala 2006; Huysmans 2008; Jabri 2007; Neal 2006; Salter 2008; van Munster
2004). We contend that there is value in engaging with Schmitt’s theory of the
exception, which has been revived and hotly debated in IR, particularly in the context
of Giorgio Agamben’s (1998; 2004) reformulations of the political implications of
exceptionalism.3 The theory of the exception, this article argues, can shed new light
on the processes underpinning counter-terrorism and security governance. Drawing
on IR readings of the exception, we also show how the deployment of risk management

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in the ‘late modern’ governance of crime and danger can be reformulated from this
perspective.
Nonetheless, in criminology, Schmitt’s theory of the exception has not attracted much
attention. While the rise of security governance has propelled some discussions about
mechanisms ‘for determining under what conditions and in what degree derogation
[from rights] is permissible’ (Zedner 2005: 521), the exception is largely absent from
such discussions. Instead, counter-terrorist policies post-9/11 have been explored
through the criminological and sociological vocabulary of state crime, moral panic or
governmentality.4 When the exception is mentioned, it becomes an explanatory tool of
current changes in law and governance rather than a problematic that needs to be
unpacked (McCulloch and Pickering 2005). Theories of state crime and moral panic
see exceptionalism as essentially lawbreaking (with illegitimate lawmaking subsumed to
lawbreaking). However, the reading of the exception presented here complicates the
relationship between crime and social order.
Following Susan Bibler Coutin’s injunction to pay more attention to societal processes
that differentiate between legality and illegality, between lawbreaking and law-abiding
behaviour (Coutin 2005), we analyse the role of the exception in the particular
configuration of the ‘war on terror’. The article considers how the exception raises
questions about the constitutive function of the politics of fear, the role of the
‘international’ in the construction of enemies and the temporality of law. What does it
mean to constitute liberal political communities and define power relations domestically
and internationally through the exception? What difference does the ‘war on terror’
make for the constitution, regulation and reproduction of political communities?
To answer these questions, we proceed in three stages. The first section deploys IR
interpretations of exceptionalism to reconsider the dialectics of law and crime found in
criminological accounts. It points out how exceptionalism founds law and social order
by turning fear of the enemy into its constitutive principle. In the following section, we
focus on the role of the ‘international’ in the construction of enemies and the blurring
of lines between domestic and the international. Tracing a common ground for further
IR–criminology dialogue, the final section contends that exceptionalism inserts itself
with precautionary governmental processes that challenge law’s relationship with the
future. Taking seriously the criminological injunction to rethink the relationship

3

We follow the distinction drawn by Neal (2006) between the exception (events and situations that are designated as ‘exceptional’)
and exceptionalism (‘illiberal policies and practices that are legitimated through claims about necessary exceptions to the norm’).
4

See the 2005 special issue of the British Journal of Criminology on state crime. See also Rothe and Muzzatti (2004) and Mythen
and Walklate (2006b).

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between democracy, security and social justice in light of 9/11 (Mythen and Walklate
2006b; Welch 2007), we also briefly indicate how the analysis of exceptionalism developed
here can shed light on the deteriorating effects of counter-terrorism on resistance and
social transformation.

Exceptionalism and the Politics of Fear

In International Relations, the ‘war on terror’ has given renewed relevance to theories
of exceptionalism, as Guantánamo Bay, Abu Ghraib, extraordinary rendition, migration

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camps or surveillance practices were all increasingly defined as states of exception. They
exemplify ‘an array of illiberal policies and practices that are legitimated through claims
about necessary exceptions to the norm’ (Neal 2006: 31). For instance, Guantánamo
has been described as the realm of ‘normless … decision making in which the executive
powers possess fully discretionary authority’ (Scheuerman 2006: 118). These sites of
exception and arbitrary decisionism have been analysed as the underside of the modern
state, the violent condition for the existence of sovereignty, even in the context of liberal
democratic regimes (e.g. Bigo and Tsoukala 2006; Diken and Laustsen 2005).
Although debates about security, implications for human rights, risk and preventive
policies have been ongoing in criminological accounts, the state of exception has
sparked less interest.5 Richard Ericson and Michael Welch are two ‘exceptions’ in this
sense. Ericson (2007) considers the state of exception within the double movement of
Counter Law I and Counter Law II to capture the multiple transformations of governance
in the war on terror. Counter Law I is based on the formulation of new laws that
undermine existing laws, while Counter Law II uses extra-legal technologies of
surveillance and profiling to further undermine law. For him, exceptionalism refers to
practices of lawbreaking (even when this is done through the creation of new laws).
Similarly, Welch’s (2007) discussion of impunity in post-9/11 counter-terrorist policies
deploys the concept of the exception to account for the redistribution of power between
executive, judicial and administrative authorities.
The criminological literature on state crime, moral panic and exceptionalism thus
focuses on criminal ‘wrongs’ as measured against a pre-existing system of legal ‘rights’.
As such, the analytical usage of exception in criminology can be subsumed under more
familiar explanations of moral panics or state crimes. The literature on state crime, for
example, has described the Iraq war, Abu Ghraib and Guantánamo Bay as deviant acts
perpetrated by the United States (Green and Ward 2005; Kramer and Michalowski
2005), while the moral panic literature has called the ‘war on terror’ a disproportionate
reaction to the events of 9/11. Both regard the construction and manipulation of fear
among the public as the continuation of vested elite interests by illegal means (Rothe
and Muzzatti 2004: 347).
The discussion of the exception in IR literature offers a different perspective on the
dialectics between law and crime as well as the relationship between fear and social
order. First, where criminological interpretations show how exceptional politics overwrites

5

Sometimes, when the ‘state of exception’ is mentioned, it is not unpacked: the contemporary politics of crime, insecurity and
fear provide ideological cover for the global emergence of a ‘state of exception’ and the global body politic becomes the criminal
body (Sheptycki 2007: 402).

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the law, IR scholars add that the exception also underwrites the law. Drawing on the work
of Schmitt (1996) and Agamben (1998) in particular, IR scholarship has pointed out
that the exception is constitutive of legal and social order. Second, IR scholarship has
shown how exceptionalism does not just play upon public panics, but also institutionalizes
fear of the enemy as the constitutive principle for society.
Unpacking IR’s reading of the exception is important in order to grasp how the
exception is more than a ‘transparent tactic by political authorities to gain the upper
hand in the politics of authority’ (Welch 2007: 138). For Schmitt, exceptionalism does
not simply refer to the creation of moral panics by means of which state elites can

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further their interests, often by undermining civil liberties. Rather, it is a ‘general
concept in the theory of the state’ (Schmitt 1985a) that accounts for the limits of order.
In this interpretation, crime and war share many similarities, opening a dialogue
between criminology and IR. Therefore, arguing that the representation of the ‘war on
terror’ should be discarded in favour of a criminal justice approach (Zedner 2005) does
not take into account the similarities that counter-terrorist policies share when
considered from the perspective of exceptionalism. In IR, Marieke de Goede has shown
that distinctions between the US pre-emptive practices and the European supposed
reliance on the rule of law do not account for European policies on data retention and
asset freezing, for example. These policies show Europe as a world leader in pre-emptive
security policies (De Goede 2008b).
Although criminological readings have interpreted the exception through the role
of the executive power at the expense of judicial power, the perspective endorsed here
argues that the exception is constitutive of all law. The exception defines the existence
and possibility of the functioning of the law. Law and social order depend upon a
‘founding crime’ or upon an act of war. This is the paradox of modern liberal political
communities that define themselves as governed by the rule of law: the law needs a
‘founding crime’, a moment of violence or injustice—the exception—in order to
function (Burke 2002; Derrida 2005). Exceptional practices are not simply irregular
occurrences prompted by opportunistic definitions of threat, but are constitutive of
sovereignty, modern law and political communities. For Schmitt, exceptionalism exists
not only in the capacity to override the law, but also in the capacity to call the legal
order into being: ‘Order must be established for juridical order to make sense. A
regular situation must be created, and sovereign is he who definitely decides if this
situation is actually effective’ (Schmitt 1985b: 13). Therefore, exceptional policies have
constitutive effects upon society, which blur the distinction between ‘normal’ law and
‘extraordinary’ crime. Criminalization undergirds the functioning of the law, although,
in practice, there will be differences in the degree of institutionalization of
exceptionalism. While writings on moral panic generally invoke stages of escalation (in
which there are calls for strong measures) and innovation (referring to increased
powers of the police), they remain wedded to an understanding of moral panic as
reflective/non-reflective rather than constitutive of social reality (Murji 2001: 174–5).
Exceptions, we have suggested, are constitutive of society and of what we take to count
as law and order.
Exceptionalism, moreover, turns fear of the enemy into the constitutive principle of
social order. In an IR perspective, the politics of fear performs the ordering of the
community. According to Jef Huysmans (2006), exceptionalism reshapes political
communities in three respects: it redistributes fear and trust, it reconsiders inclusion
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and exclusion and it institutes a predisposition towards violence.6 Although fear of

crime has been an important topos of criminological research, debates about state crimes
and moral panics often ignore the ways in which exceptional policies revolving around
fear feed back into society. Instead, fear has been thought to be either an emotional
reaction to elements associated with crime, a political discourse of fear (Furedi 2006;
Mythen and Walklate 2006a) or an ‘unconscious displacement of other fears which are
far more intractable and do not display the modern characteristics of knowability and
decisionability’ (Hollway and Jefferson 1997: 263). These definitions can be integrated
in an analysis of moral panics as distortions or exaggerations of criminal behaviour

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(Rothe and Muzzatti 2004). IR scholars have argued that the construction of enemies
and the governance of dangers through exceptional policies do not simply concern the
identification of threats or risks, perceptions or the cultural underpinnings and
meanings associated with a particular threat. Rather, the securitization of dangers is a
‘politically constitutive act that asserts and reproduces the unity of a political community’
(Huysmans 2006: 49). Exceptional policies, Huysmans (2004: 338) has argued:
… are not simply about civil liberties, the legality of going to war, and the constitutional limits to
strengthening executive-centred government. Since these political, legal and social contests strongly
reiterate fear of the enemy they directly bear upon the extent to which one is structuring and possibly
institutionalizing fear of the enemy as the organizing principle of politics in both national and inter-
national society. The question then becomes to what extent security responses that claim to aim at
protecting freedom and equality are actually displacing freedom and equality with fear of the enemy
as the central principle around which politics is organized.

Huysmans has expanded the conceptualization of the exception in relation to law by

unpacking the matrix of liberal power as consisting of a tripartite relationship between
the rule of law, political leadership and the popular will. This means that the exception
is not only a question of the limits of law and the increasing role of discretion within late
modern legal arrangements, but also underpins questions of political representation
and of the constitution of law (Huysmans 2004). The exception allows for the arbitrary
exercise of power by both political leadership and the ‘people’ and undermines the
constitution of law through the ‘will of the people’. It also severs the external
representative links between political leadership and the people. This raises questions
not just about how the norm needs an exceptional constitutive moment, but also about
how exceptional measures distort and challenge the functions of representation in
liberal democracies. This approach has informed IR analyses that have revealed the
continuities within liberal states of illiberal practices that stem from the exceptional
governance of risks and dangers (Aradau and van Munster 2007; 2008; De Goede 2008b;
Neocleous 2008). Fear integrates political communities according to friend/enemy
lines and creates homogeneous identities that need to be defended. The politics of fear
collapses processes of representation and unifies the ‘people’ and the political leadership.
Unlike some of the criminological literature, fear is understood not as an emotion, but

6

At the same time, Huysmans draws attention to distinctions that have been made between forms of exceptionalism. While legal
and social orders are constituted through the exception, this limit is not necessarily the same. A social democratic exceptionalism
would function differently from the radically conservative exceptionalism theorized by Schmitt (Huysmans 2004). For thinkers like
Franz Neumann and Otto Kirchheimer, exceptionalism could lead to a more just society, when it is propelled by claims for equality
rather than the construction of enemies and the politics of fear.

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 EXCEPTIONALISM AND THE ‘WAR ON TERROR’

as a ‘particular principle of making human relations intelligible in a certain way’

(Huysmans 2006: 52).
The friend/enemy division is also constitutive of the limits of legality and political life
within the state. It speaks of the possibility of modern liberal states to turn into
authoritarian regimes (Walker 2006). The politics of fear thus has important
consequences for the role of resistance in liberal democracies. Gordon Lafer has pointed
out that policies in the ‘war on terror’ have been aimed at ‘undoing workers’ power in
the workplace; pushing back against labor’s growing political clout; and breaking apart
the labor–community coalitions that threatened to exercise too much democratic

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control over capital’ (Lafer 2004: 334). From forbidding airport security personnel the
right of unionization to branding as unpatriotic those workers who refused to accept
wage and benefit cuts, Lafer has shown how the ‘war on terror’ has served to constantly
undermine the power of the labour force and any attempts at rolling back corporate
capital. Exceptional measures derived from the ‘war on terror’ are also increasingly
taken against environmental activists or anti-globalization movements,7 while Prime
Minister Gordon Brown has invoked the anti-terror legislation to freeze the assets of the
bankrupt bank Icesave, when Iceland initially refused to compensate British customers’
lost savings as a result of the bankruptcy.8
So far, the IR debates on the exception have helped us unpack a slightly different
understanding of law and crime. The very foundation of the law harbours a crime and
is made possible by decisions upon enemies who are to be neutralized in order for the
law to function. Decisions on the enemy are very different from the social construction
of enemies in theories of moral panics. In addition to analyses of state crime and
moral panics, the perspective developed here has led us to question the distinction
between law, crime and war and between ‘normal’ society and extraordinary
mobilization against enemies. Another element that the IR debates can bring to this
dialogue is that of the specificity of the ‘international’, to which we turn in the next
section.

Exceptionalism and the ‘International’

The construction of enemies is simultaneously undertaken domestically and
internationally; not only are decisions upon the enemy intimately connected with the
limits of law, but definitions of what counts as liberal universal law are possible through
the separation of a realm of modernity and Enlightenment from the rest of world and
definitions of civilization from barbarism. In this view, the exception entails important
questions about how the international ‘war on terror’ is fought in conjunction with
domestic policing.
The international is probably one of the most neglected dimensions in the governance
of crime, having been associated with traditional inter-state relations. Generally,
criminology has used the concept of ‘transnationalization’ to describe processes and
practices that transgress national boundaries (Sheptycki 2005). Nonetheless, the
international implies other processes of carving up the world besides the recent

Environmental activists have been placed on terrorist lists or detained in anti-terrorist raids.
7

See, e.g. www.politics.co.uk/news/opinion-former-index/economy-and-finance/iceland-bank-freeze-used-anti-terror-laws-$1244102.

8

htm.

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emergence of transnational authorities and professionals. Rob Walker has drawn

attention to the role of the exception and particularly the construction of friend/enemy
relations for dividing up the international. He has singled out three concepts that have
been used in IR to think of the world: international, imperial and exceptional (Walker
2006). ‘International’ is the traditional concept of inter-nations, inter-states, the
negotiations and commerce between states that have been often thought of in violent
and war-like terms. Traditional understandings of the international have followed
Thomas Hobbes’s metaphor of the ‘state of nature’ as the anarchic war of everyone
against everyone. ‘Imperial’ is the more recent rendering of the international as a realm

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no longer dominated by inimical relations between nation-states, but structured by
different forms of vertical power, variously defined as neo-liberalism, globalization or
empire. The ‘exceptional’ raises questions about sovereign authority internationally
and which sovereign capacity has priority. Is it the sovereignty of the state, imperial or
hegemonic sovereignty, or the sovereignty of democracy? Answers to these questions
entail particular definitions of limits in relation to which the exception functions.
According to Walker, the exception is articulated at the supra-national level as a claim
about inhumanity (those who are not yet modern or need to be helped to become
modern) or about empire (the transcendence of international hegemony and the
antagonisms between states to the community of humanity). ‘Construct the other as
barbarian, as that which must be civilized or destroyed,’ Walker cautions, ‘and the way
is open to the declaration of exceptions that affirm the suspension of modern
achievements and the authorization of absolute authority, whether understood as
empire or as the final victory of a singular way of being human’ (Walker 2006: 76–7).
The civilizational underpinnings of exceptionalism can also be traced in Schmitt’s work.
In The Nomos of the Earth, Schmitt (2003) explicitly argued for upholding the plurality of
states as found in the nineteenth century Jus Publicum Europaeum against what he saw as
the dehumanization of the enemies of liberalism. The sovereign state integrated
individuals into a political order and organized legitimate modes of authority through
the staging of an external threat: ‘Every religious, moral, economic, ethical, or other
antithesis transforms into a political one if it is sufficiently strong to group human beings
effectively according to friend and enemy’ (Schmitt 1996: 37). Nonetheless, the
construction of enemies within the European system of state remained a relation
between equals, while liberal universalism pushed enemies beyond the boundaries of
humanity. The enemy of liberalism, according to Schmitt, becomes equated with
inhumanity and evil.
Yet, Schmitt’s conservative support for a traditional inter-state rendition of the
international was made possible by another exception that was functioning at the limits
of the system of states. The limitation of inter-state enmity among European sovereigns
depended on the representation of the colonial world as an ‘empty space’ in which wars
between European states could be fought without restraint. Internationally, the
exception was a space carved within the colonial global space. The loss of these territorial
boundaries in the process of decolonization, the subsequent universalization of space
and the emergence of humanity as a global subject reinforced Schmitt’s belief that
boundary drawing, the division of space or territory is the fundamental act of constituting
a stable order. Exceptions were made possible by the global colonial relations of power
and several scholars of international law have also argued that colonialism is the
disavowed basis of modern international law (Anghie 2004; Hussain 2003). Just like
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domestic law, international law depends upon an exception. As Butler has formulated
it:
… [law] leaves open the possibility of its own retraction, and, in the case of the Geneva Convention,
extends ‘universal’ rights only to those imprisoned combatans who belong to ‘recognizable’ nation-
states, but not to all people …. The Geneva convention is, in part, a civilizational discourse …. (Butler
2004, emphasis ours)

Universal legal provisions do not necessarily provide a guarantee against exceptional

politics enabled by colonial relations of power. The political implications of relegating

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enemies to the spaces of inhumanity become more explicit in Agamben’s reformulation
of the exception. Agamben (1998) places the decision on the enemy at the heart of the
sovereign decision on the value of life: political and disqualified, abject or bare life. The
decision on the exception suspends the legal order and creates a space of indistinction
between norm and exception. In this zone of indistinction, the central figure one
encounters is that of homo sacer, bare life stripped of all its value in the sense that violence
against him/her remains unpunished. The sovereign declaration of the state of
exception simultaneously creates the state of nature and the rule of law through the
abandonment of life, reducing (some) subjects (e.g. in the colonial world) to bare life.
The Hobbesian social contract that brings the sovereign into being masks the fact that
sovereignty essentially operates through a ban: ‘The originary relation of law to life is
not application but abandonment’ (Agamben 1998: 29). Agamben’s reformulation of
the enemy as homo sacer offers a further cautionary note against the reliance on a regime
of human rights to resist international exceptionalism.
Global human rights are equated with the generalization of bare life, of life that is no
longer political and can be sacrificed with impunity. Rather than a panacea for
authoritarianism and discretionary power, human rights regimes are imbricated in an
exceptionalism that goes beyond state boundaries. As Tony Blair has argued with respect
to the twin threats of terrorism and the spread of weapons of mass destruction among
non-democracies: ‘[T]hese two threats have different motives and different origins, but
they share one basic common view: they detest the freedom, democracy and tolerance
that are the hallmarks of our way of life’ (Blair 2003). The limits of law and social order
are determined not simply within the state, but also within the system of states. In the
international sphere, the limits of law and life are superposed over the limits of modernity
and civilization. So-called functional states are opposed to failed or weak states. ‘Failed
states’, argued the US Director of National Intelligence, are ‘terrorist safe havens and
ungoverned regions that endanger the international community and its citizens’
(McConnell 2007). Indeed, the United States now regards failed states as larger threats
to national and international security than great power struggle and balance of power
politics.
This reading of the international dimension of the exception also has important
repercussions for the governance of terror in domestic contexts in which the identification
of enemies increasingly draws upon readings of modernity in the international realm.
For Schmitt, the exception was constitutive of a homogeneous cultural community,
whose substance can vary historically from the nation-form to that of the German Volk,
but whose homogeneity gives content to the state (Müller 1997). Exceptionalism entails
specifications of the enemy that relegate the latter to the category of cultural and even
racial infrahumanity. Moreover, exceptions within the state and the system of states are
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mutually dependent, as the way the international is ‘carved up’ reflects back on how the
domestic realm functions.
At first sight, the colonial/racial constitution of the international/internal would
appear to be disputable for the governance of terrorism. The radical uncertainty
associated with terrorism appears to undermine the cultural, nationalistic and racial
rendering of friends and enemies, while biometric identifiers or body scanning appear
to go beyond racial and cultural characteristics. The official Home Office report on the
7/7 London bombings points out that nothing marked out the four men involved in the
attacks: they were all ‘unexceptional’ (Home Office 2006). The ‘unexceptionality’ of

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the enemy entails the surveillance of all the population, of all flights, for example,
independent of existing intelligence, leading to a surplus supply of data and over-
prediction of threats (Amoore and de Goede 2005; Levi and Wall 2004; Lyon 2002).
Technologies of surveillance are indiscriminately targeted at the whole population: stop
and search policies in the United Kingdom, biometric identifiers or the introduction of
identity cards. Terrorist suspects can be unemployed or employed, poor or not so poor,
young or old, legal residents or citizens, illegal migrants or tourists.
Nonetheless, rather than undermining cultural and racial distinctions, these elements
get re-inscribed upon the technologies of governance. Profiling on the ‘objective’ basis
of actual behaviour (travel records, internet searches, financial habits, etc.) often has a
decidedly cultural, religious and racial bias (Amoore 2007). As Islamic financial
institutions have been equated with terrorist financing, this has allowed for new modes
of ‘accumulation through dispossession’ and the reintroduction of confiscated ‘terrorist’
money into the circuits of Western capital (Atia 2007). The co-existence of contradictory
measures is indicative of the sovereign authority that exists at different levels: from
bureaucrats to international institutions. Moreover, this co-existence allows for increased
flexibility in targeting various categories of the population—some on grounds of
generalized surveillance and others on grounds of statistical evidence and risk
profiling.
Most importantly, the reading of the exception both within the state and within the
international has allowed us to suggest that recourse neither to domestic law nor to a
universal regime of human rights can counter the exceptionalism of counter-terrorist
measures. Domestic and international law are dependent upon the ‘ban’ of unworthy
life, life relegated to the realm of infrahumanity. Post 9/11, inhumanity is characteristic
not only of the ‘enemies of the nation’ or abnormal subjects, but also of the citizens of
the so-called ‘weak’, ‘fragile’ or ‘rogue’ states.

Exceptionalism and the Future: Precautionary Risk

Theories of exceptionalism show that more is at stake than the state’s compliance with
law and human rights regimes. Not only is the very functioning of law dependent upon
an extra-legal decision upon the enemies, but these decisions function at the interface
of the internal and the international. Limits to the state and to the system of states
combine to create a continuum of enemies that has global relevance while being
re-inscribed within particular domestic contexts. Similarly, political order is constituted
through fear of the enemy. Nonetheless, these elements appear to indicate an irreducible
difference between IR and the analyses of risk that have informed some of the governance
of crime literature. Can these differences be bridged?
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 EXCEPTIONALISM AND THE ‘WAR ON TERROR’

Generally, criminology scholars have seen practices deployed in the ‘war on terror’ as
extensions of novel modes of governing crime in neo-liberal societies of control such as
the United States and the United Kingdom (Garland 2001). For Mythen and Walklate,
for instance, counter-terrorist measures reflect the more authoritarian ways of dealing
with crime (zero tolerance, three strikes policies and the anti-social behaviour law in the
United Kingdom) present in these societies: ‘The political drift towards authoritarian
populism has cut into the calculus of risk and extended crime models based on
punishment and retribution’ (Mythen and Walklate 2006b: 389). For Ericson, similarly,
counter-law is embedded within a neo-liberal politics obsessed with uncertainty, security

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and self-discipline (see also De Goede 2008a; Ericson 2007; Randy 2007). Simon (2007a;
2008), too, argues that the fear of crime has shaped the American ‘risk imaginary’ since
the late 1970s. ‘In place of insurance,’ he explains, ‘violent crime has framed the prison
as the model governmental technology’ (Simon 2007b: 8). Insurance becomes a matter
of individual responsibility rather than societal solidarity; it functions like a market that
individuals enter for the provision of their own security. Ultimately, neo-liberalism
entails a shift towards private security arrangements and a rediscovery of individual
responsibility.
In IR, the ‘war on terror’ has often been seen as defined by discourses and technologies
that are transferred from the field of national security knowledge. The exception is
linked with the deployment of sovereign power and national security. Thus, a significant
part of the IR literature is concerned with the role and function of wars that have been
fought as part of a global counter-terrorism strategy (Jabri 2007; Rasmussen 2006).
However, the perspective on the exception developed here can indeed relate
criminological and IR analyses. Arguments about the imbrication of sovereign and
governmental power are not new. In the context of the ‘war on terror’, Welch (2007)
has suggested, following Butler’s argument, that sovereignty and governmentality have
become intermingled. Butler, however, does not account for how governmentality
makes possible the re-emergence of sovereignty. Rather, she takes the view that as law
becomes a tactic of governmentality, sovereignty can be resurgent as also lawless—simply
an ‘instrument’ that fabricates or suspends law (Butler 2004: 94).
One of the areas of further discussion between the disciplines could concern the
emergence of a form of governmentality that has exceptionalism at its core. Not only
has risk management become an important part of security analysis, but even questions
of war and peace are, to a certain extent, decided on the basis of risk scenario and
modelling future catastrophes (see Aradau and van Munster 2007; 2008). Conversely,
risk technologies are seen to depend upon security decisions. Although criminologists
have shown how risk management has been deployed in the international governance
of terrorism in sophisticated detail, IR analyses have offered a historical understanding
of the relationship between national security, social security and risk management
(Aradau and van Munster 2007; Neocleous 2008).
Within the context of neo-liberal crime policing and post-Cold War redefinitions
of security, the emergence and increasing circulation of catastrophic imaginaries and
precautionary risk have created different conditions for the institutionalization of
the exception in liberal states. The radical contingency of the future inserts the need
for sovereign decisions within governmental processes. The emergence of a
‘precautionary’ element has given birth to new configurations of risk that require the
catastrophic prospects of the future be avoided at all costs (Aradau and van Munster
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2007; De Goede 2008a). Precautionary risk management can be seen to span the
whole realm between exceptional measures and the immediacy of action on the one
hand and the ordinary administrative, police or insurance measures on the other.
The imagination of dangers as catastrophic and the precautionary measures needed
to tackle their radical contingency—we contend—have led to a particular deployment
of exceptionalism.
In Francois Ewald’s (1993: 222) formulation, precaution surpasses the limits of
insurance as a new rationality of risk management, as risks tend to ‘exceed the limits of
the insurable in two directions: toward the infinitely small-scale (biological, natural, or

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food-related risk), and toward the infinitely large-scale (“major technological risks” or
technological catastrophes)’. The first element of infinity that undermines the rationality
of risk insurance is the catastrophic element, the grave and irreversible damage that an
event can cause. The second element of infinity is that of uncertainty.9 Ewald’s infinitely
small or infinitely large-scale risks are both related to scientific knowledge. When
knowledge is unable to define the prospect of the future, to compute its own effects
upon the future, the logic of insurance is surpassed (Ewald 2002).
Despite its familiar ring, precaution can be reduced neither to traditional responsibility
in the face of dangers nor to neo-liberal prudentialism. It is not a reminder of precautions
that must be taken individually by entering the insurance market. Precautionary risk
introduces within the computation of the future its very limit, the infinity of uncertainty
and potential damage. It is therefore exactly the opposite of prudence: if the latter
recommended what ‘precautions’ to take under conditions of knowledge, the former
demands that we act under scientific and causal uncertainty. The future is not simply
about contingency, but about catastrophic contingency. George W. Bush’s description
of the challenges that Iraq posed for American security is indicative for how both
catastrophe and uncertainty underpin exceptional policies:
Many people have asked how close Saddam Hussein is to developing a nuclear weapon. Well, we don’t
know exactly, and that’s the problem …. Facing clear evidence of peril [the attacks of September 11],
we cannot wait for the final proof—the smoking gun—that could come in the form of a mushroom
cloud …. Understanding the threats of our time, knowing the designs and deceptions of the Iraqi
regime, we have every reason to assume the worst, and we have an urgent duty to prevent the worst
from occurring. (Bush 2002)

Catastrophe and radical uncertainty about the future change the coordinates of the
politics of fear. Fear becomes intimately entwined with prospects of the future and the
decision on the enemy is expanded into decisions on catastrophic contingency. In order
to prevent serious and irreversible damage, precautionary risk management entails a
politics of zero risks based on imaginations of worst-case scenarios.
While the modern liberal state devised ways in which to ‘tame’ the politics of fear and
to transform its enemies into adversaries, the emergence of catastrophe and radical
uncertainty on the political scene entails important changes for liberalism and the role
of the exception. Both the politics of fear and the construction of enemies are increasingly
imagined in relation to an uncertain and unknowable future. In this sense, exceptionalism
becomes amplified and extended as law needs to function in relation to concrete

9

On governing through uncertainty, see Ericson (2007).

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 EXCEPTIONALISM AND THE ‘WAR ON TERROR’

possible events rather than project generalizable norms in the future. Thus, law is
required to increasingly function in relation to a future that is not predictable. The
generality of law is suspended to a higher degree than it has ever been.10 If neither the
principle of fear nor the construction of enemies (both domestically and internationally)
can be erased from liberal and neo-liberal governance, both appear to be amplified and
expanded. Agamben’s statement that the exception has become normalized can thus be
nuanced by an understanding of how the politics of fear has been intensified and
infiltrates more and more areas of social life.11 Confronted with precautionary risks, the
politics of fear and decisions on the enemy lose their definite contours and can apply to

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larger and larger categories of the population. As groups of high risk can no longer be
easily detected, the decision upon the enemy no longer has a basis in the other’s
expressed intentions or actions.
The catastrophic and radically uncertain future is translated into exceptional policies
that actively seek to prevent situations from becoming catastrophic at some indefinite
point in the future. As the politics of fear expand indefinitely, precautionary measures
are mobilized to avoid terrorist irruptions in the future. War relies on technologies of
risk management for ultimate prevention, while policing attempts to identify more and
more elusive enemies. Not only are those who challenge the status quo increasingly
targeted as ‘enemies’, but fear of the enemy assumes the need for the uninterrupted
continuity of the present. The community of liberal states needs to be preserved against
terrorist attacks—the continuity of its processes is thus one of the main assumptions of
exceptional practices in the war on terror. Rendering the future as catastrophic has an
intensifying effect upon the imagination of continuity. In Ewald’s words, precaution ‘is
concerned with ensuring the continuity of the future with the past. The precautionary
principle is counter-revolutionary. It aims to restrict innovation to a framework of
unbroken progress’ (Ewald 2002: 284). When allied with precautionary risk management,
exceptionalism reinforces the status quo and the continuity of the present against
struggles for transformation and social justice.

Conclusion
Exceptionalism has been widely debated in IR, while criminology has so far largely
turned to other concepts—such as state crime, moral panic or risk—to explore the ‘war
on terror’. Although the criminological literature has provided many useful insights
into the practices and actions deployed by states, politicians, the media and other actors,
this article has argued that engaging with debates about theories of the exception and
exceptionalism in IR could lead to a fruitful dialogue between the two disciplines.
Introducing an argument about how the ‘war on terror’ is simultaneously transgressing
and underwriting the law, this article has unpacked the state of exception as a useful
tool for apprehending the constitution of domestic and global power relations.
Guantánamo Bay, Abu Ghraib, extraordinary rendition, surveillance and other practices
deployed in the ‘war on terror’ can all be defined as sites of exception and arbitrary
decisionism that simultaneously function as the violent condition for the existence of

On the transformation of law under the impact of exceptionalism from the welfare state until 9/11, see Aradau (2007).
10

For a discussion about the normalization of the exception in the war on terror, see Salter (2008) and van Munster (2004).
11

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sovereignty, law and politically qualified life. Exposing the exception as the founding
crime of law, we have shown in which ways the ‘war on terror’ defines the limits of the
state and the system of states.
Reading the ‘war on terror’ through the lens of exceptionalism shows that the
international cannot be separated from the national in as far as domestic expressions of
the enemy often rely upon international representations of modernity and progress
that separate the West from the rest of the world—and vice versa. If the domestic and
the international have been thought of as two domains, each requiring its own discipline,
the state of exception points at their mutual dependency to the point that one could

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speak of inside and outside as a ‘Möbius ribbon’ (Bigo 2001). Only when the whole
array of practices, discourses and institutions deployed in the ‘war on terror’ is taken
into consideration, domestically as well as internationally, is it possible to get a clear
sense of what kind of limits and enemies are fostered to legitimize and institutionalize
domestic authoritarianism and the international division of forms of life. Moreover,
whereas IR has viewed processes of enemy construction as exceptional acts related to
discourses on national security, the ‘war on terror’ shows that the exception has trickled
down to the more mundane technologies and strategies analysed by criminology
scholars. In particular, precautionary measures at the horizon of a catastrophic future
translate radical uncertainty and future catastrophe into an exceptional politics of fear
that integrates the everyday, mundane practices of policing with the exceptional
practices of war.
Finally, understanding the ways in which exceptionalism operates will also help critical
scholarship in both IR and criminology to further discuss the deteriorating effects of the
‘war on terror’ on political communities and social transformation. It is not sufficient to
claim that states exaggerate and blow up threats in order to call for measures that are
more in tune with their ‘real’ magnitude. For one thing, this form of critique can
generally only be made after the fact (e.g. only when we know that Iraq did not possess
weapons of mass destruction, we can say anything about the actual presence of the
threats). More important, however, is the insight that alternative knowledge claims will
often fall on deaf ears when security policy is informed by the twin limit of scientific
uncertainty and future catastrophic damage. In these cases, it is also imperative to point
out the constitutive power of the exception, the fear it provokes, the enemies it creates
and the profound effects it has on the ways we live as a community, domestically as well
as globally.

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