The criminalising of anarchists and the politics of exception

An essay from spain on the state of exception and anarchists as the enemy …

Anarchists: The enemy

José Luis Carretero (El Salto 23/10/2019)

The use of the monopoly of force by the State has always been a sensitive issue. Moreover, it is the legitimising narrative of the criminal system in a State that defines itself as democratic. Let us be clear: opening up heads and locking people up is not always well seen by everyone involved. And even less in a class society.

Our penal system is supposed to have been structured around a series of central ideas of the enlightened reformers of Europe who wished to free themselves from the absolutist power of the Old Regime. That implied, politically, a system of division of powers and the democratic election of representatives; and penally, a whole toolbox of citizen guarantees, created to limit the power of the State and its agents, as well as the central idea that the criminal system itself had as its purpose the reintegration and humanisation of offenders, not their pure annihilation or torture (public torture, execution through especially impressive means) which, in the previous society, turned the punishment of crimes into the public manifestation of a power that could generate, as an example for the entire population, an unprecedented suffering.

Thus, the Criminal Law of capitalist society that defined itself as democratic was based on a principal idea: it was only going to act, given its enormous capacity to damage the fundamental rights of those involved, in the face of the most serious aggression against the legal assets most important in society. What this aggression and those goods were was something that was determined in a rigorous and limited manner by the corresponding Criminal Code. And therein, specific activities should be typified in an exclusive manner. No lines of thought (there was a certain freedom of expression) nor membership in social groups (there was talk of the equality of citizens as a value) was to be given precedence over the rule of law.

Of course, we are speaking of times past, of a legal narrative that is old fashioned. Although it are not very clear as to whether it was ever really fashionable in this Peninsula, which so many times in recent centuries, has gone from dictatorships to dictatorships, and from reforms of dictatorship to reformed dictatorships.

The brutal tendency of the new neoliberal Criminal Law is, however, what has been termed by well-known jurists like Raúl Zaffaroni, the “Criminal Law of the Enemy” [Feindstrafrecht]. That is, far from punishing specific behaviors, previously typified, and already consummated, what the current criminal system does is to identify social groups that may possibly violate the law, and in the name of the prevention of deviant behaviors and of the preventive defense of the social order, to criminalise what these people do.

It is not a matter of citizen so and so having done something that was previously defined in the Criminal Code as a crime, but that there is a group of suspicious people who, one of these days, will do something that we have not yet identified and that will be very, very bad. That is why, before that day arrives, we have to study, monitor and typify what these people do as a crime. We do not pursue then a specific behavior. We chase an enemy.

And here is where the anarchists come in. Anarchists are today’s enemy.

Because today it is for to the anarchists to be the enemy. We can read it in all mainstream media: the anarchists are responsible for all the evils that have happened in the last month throughout Spain. Anarchists without Borders, who travel throughout Europe looking for disturbances, like migratory birds seek warmer winds. Anarchists with ghostly Masters degrees in urban guerrilla warfare, who block streets with rubbish containers and who must have received scholarships from obscure powers to loot cellphone shops.

It matters little that being an anarchist is an ideology (that is, an intimate conviction or a way of seeing the world), supposedly protected like any other in a context of freedom of thought and political pluralism; and not a concrete activity. And there are anarchists who are dedicated to preaching pacifism (such as Leo Tolstoy), who organise trade union training courses, who collaborate with unemployed groups and evicted people, who recover the democratic Memory of our people in the University, or who defend nature and launch collective gardens.

There are also, of course, anarchists who mask themselves and blockade streets. Although it is not clear what proof there is to support the recurring hysteria of the national media about the anarchists this week. Some information is accompanied by no data and other is simply shielded by the fact that anarchists who have been arrested are too young (16 and 17 years old) to have prior evidence of their membership in such a dark world. It is the problem with the writing of journalistic reports which merely paraphrase police reports: sometimes the reports have (whether or not their authors are aware of it) more the literary character of fiction than accounts of reality, as is well known to those who have been criminal lawyers.

And so the enemy becomes the anarchists. It is an enemy that comes in handy: it allows the repressive tone to rise without directly accusing the great mass of Catalan independence activists who have demonstrated these days. That is, without them realising that we are going after them. It is a human group with a long history as an enemy (only surpassed, perhaps, by Freemasons, communists and Jews). And it is an enemy that has been harassed by various police operations (which have proved unfounded in court in almost all cases) in recent years.

But there must be an enemy, because only the presence of the enemy justifies the preventative action of the criminal system. It underlies the fact that state surveillance becomes omnipresent (but not only for the enemy, for everyone) and that punitive populism becomes the basic narrative of the media and judicial sentences; the State of emergency, without the declaration of an emergency.

Because the enemy, on the other hand, is, of course, exceptionally evil, and therefore commits especially reprehensible crimes. And that brings us to the carnal relationship existing, within the neoliberal criminal system, between the “Criminal Law of the enemy” and the extension of emergency mechanisms and exceptionality.

I will explain: Juan Alejandre, my old professor of History of Law at the Complutense University, had an interesting little book about the history of torture as a means of proof in the criminal process. He related it to the history of the so-called “delitum exceptum”, the especially serious crime that allows a legal process to skip over all of the guarantees of the citizen in the procedure. In its time, in Rome, this covered the attempted assassination of the Emperor, for example.

My old (and great) professor’s thesis was that, like criminal law in general displays a strong expansive tendency (it tends to extend its own competences, invading areas that should not correspond to reality if it is understood as the reaction to more serious aggression before the most important legal assets), within the Criminal Law itself, the “delitum exceptum” also shows a strong expansive tendency (if legal rationality does not intervene, more and more things are considered within the framework of that very special crime that it allows the repressive forces to bypass the general guarantees of the citizens in their persecution).

We must bear in mind that terrorism is the great “delitum exceptum” of our time, with increasingly broad criminal typologies, an increasingly permissive jurisprudence with the increasing limitations that accompany it, supposedly derived from its persecution, to the violation of fundamental guarantees and an increasingly populist narrative that favors its criminal omnipresence by the media. In the pursuit of delitum exceptum, in its expansive tendency without limits, which is what we are playing with in all this soap opera of the Catalans, with the anarchists and other similar enemies, we reach the State of Exception, declared or not. Some are already demanding it, like Abascal [leader of spain’s Vox party] and his people.

Only one fact, speaking of Abascal: Hitler did not repeal, until long after he took power, the constitutional framework of the Weimar Republic, which was a model within the liberal democratic world. He only gradually introduced and expandes its mechanisms of exception mechanisms before the delitum exceptum, until the normative order became, almost naturally, and with the applause of great jurists, essentially another: an authoritarian and murderous order, a normative order in open war (the exception, the emergency) with the enemy (the red, the Jew, the anarchist) in an urgent situation that theoretically justified all the exceptions.

Democracy, dear friends, is defended for all, or it does not survive for anyone.

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