Behemoth : a Journal on Civilisation (Sep 2011)
Widerstreitende Temporalitäten: Recht in Zeiten des Risikos
Abstract
Drawing on Niklas Luhmann’s systems theory, this article approaches the legal exception throughan analysis of conflicting temporalities. According to Luhmann, each subsystem of society possessesa specific mode of relating to past and future events. Law has a specific temporality that is characterizedby its orientation to the past: it deals with deeds done in light of laws already set in place. Luhmannsuggests that considerations of future risks are at odds with the temporality of law. Followingthis idea, it will be argued that future orientated measures such as preventive detention and the doctrineof preemptive warfare introduce the legal exception into law itself. Both cases exhibit differentrationalities of relating to an uncertain, potentially threatening futures that collide with law’s propertemporality. Whereas preventive detention relies on the 19th century idea of the probable crime asincorporated into a ‘dangerous individual’, the preemptive strike thrives on the post-probabilisticanticipation of the unexpected. Both measures indicate the erosion of law’s capacity to sustain anindifferent attitude towards the future. Consequently, both measures thwart law’s retroactivity, albeitin different ways. They articulate a counter-legal temporality within law – and thereby disruptthe legal system.
