Securing Globalisation: A New Jurisprudence, Power Struggles and the Legitimate Use of Fear.


Securing Globalisation: A New Jurisprudence, Power Struggles and the Legitimate Use of Fear.A Book Review of
“A Critique of Security”

By Mark Neocleous
Michelle Hynes-McIlroy LLB(Hons)
Submitted as Honours paper to University of Glasgow, School of Law 2009

I am to convince the reader that a whole range of new jurisprudence is emerging which, when studied independently appears to be abstract in nature, unbelievable and somewhat questionable, yet when studied carefully as a corpus of thought contains thought provoking and legitimate substance

Around the globe there are events occurring which suggest that our world is insecure. These events show ‘insecurity’ in all fields of life from food distribution , economic stability , climate change , the protection of property, territory and rights. These phenomena have prompted academics in fields such as legal theory, politics and sociology to pay attention to them and to write about what they now term a ‘paradigm shift’ in global events. By analysing the way the law is responding to these occurrences, a corpus of new legal political thought is emerging which posits a whole new form of jurisprudence concerning ‘power’. In this paper we will firstly address ‘what is happening.’ We will do this by considering current affairs. We will then consider ‘why it is happening’ by looking both at Neocleous’ Critique of Security and Marx before turning our focus intensively on ‘how it is happening’ by considering Neocleous’ thesis.

I am to convince the reader that a whole range of new jurisprudence is emerging which, when studied independently appears to be abstract in nature, unbelievable and somewhat questionable, yet when studied carefully as a corpus of thought contains thought provoking and legitimate substance. The project of this paper is to identify where Neocleous fits into this new form of jurisprudence. I will conclude that his work is of critical importance as synaptic-like link connecting a string of theories and thus forms one of the building blocks of legal thought.
Let us discuss some of these events and consider ‘what is happening?’ ‘Crisis’ situations are now everywhere. The economy is insecure. The financial economic crisis reflects insecurity in our economic structure. We are in a crisis of oppression. We cannot keep up with science and are in ‘crisis’ as genetic intervention combines with technological advancements challenging ethical and moral values. This is met with the introduction of the Human Fertilisation and Embryology Act 2008. The future of the planet is in ‘crisis’ as global warming and the disintegrating supplies of fossil fuels becomes apparent. The implementation of the UK Climate Change Act and the formation of a new Committee on Climate Change in conjunction with a proposed ‘green stimulus’ in planned policy shows global insecurity. The new objectives are to establish a solution to energy deficits by creating offshore wind farms and educating societies regarding their own individual involvement in the project of conservation. World supplies are in ‘crisis.’ Essential supplies which are critical for the sustainment of life such as water and sanitation feature prominently on the agenda of the G8 summit and according to ‘Water Aid’ this objective promises to offer a ‘brighter future’ to countries across the globe. The law is responding. Domestic law is in ‘crisis’ as Human Rights legislation overturns legal domestic law. We witness this in the unlawful immigration policy prohibiting UK Ghurkhas from remaining in the UK. The Political Parties and Elections Bill aims to regulate loopholes in the democratic election process and promote equality in UK politics. The opening of the United Kingdom Supreme Court scheduled for 2009 sees a further court of appeal becoming available beyond the finality of the House of Lords.
Territorial boundaries are in ‘crisis’ as we witness the growth of the European Community which plans to draw in more members, widening its jurisdiction to eventually include Croatia, Macedonia and Turkey.

The recurrent theme is that we are globally ‘in crisis’ and thus ‘insecure.’ This ‘fear’ prompts us into action. We try to remedy this ‘lack of security’ with the use of reactionary positive law on a domestic, international and global level. What links all of these new forms of law making is a bigger picture of the understanding of human values commonly held across the globe. The individual territories and the boundaries between them appear to be merging. Some detective works is required to discover why we are and if we are ‘insecure.’ Who is behind the (mis)–information which creates this illusion? Who holds the power to promote fear and yield ‘security’ as a weapon? Who uses this fear to legitimise ‘just wars’ in the name of security?

Is this a natural phenomenon or a process of evolution of human society or does the source of these changes, originate from one or more loci? The main discussions form around the ‘Power’ to control. Marx argues that this is the natural evolution of a society:

“We develop new principles for the world out of the world’s own principles. We do not say to the world: Cease your struggles; they are foolish; we will give you the true slogan of struggle. We merely show the world what it is really fighting for, and consciousness is something that it has to acquire, even if it does not want to.”

The economic crisis has prompted theories of where this power resides. Professor Joseph Stigliz from the University of Columbia blames the financial alchemists ; Mervyn King (The Governor of the Bank of England) blames the commercial banks who bestowed huge pecuniary bonuses on their financiers. Prime Minister Gordon Brown casts aspersions on multiple culprits laying the blame at the doors of the banks and telling the BBC “You know, it started in America; there was a lot of irresponsible lending taking place.” Everyone is discussing ‘security’. Neocleous argues that ‘security rhetoric’ is the “new dominant ideology; everyday is Security Awareness Day.” A whole new discourse has been born. Defence and protection have become elevated in our global values. Neocleous attempts in his thesis to:

“…challenge the ways in which ‘security’ has become the master narrative through which the state shapes our lives and imaginations, security (risks here, security measures everywhere, security police everywhere) producing and organising subjects in a way that is always already predisposed towards the exercise of violence in defence of the established order.”

He outlines “a wider critique of power’” in which he unmasks the “…. ideology of security (and defetishise the foundation of the system within which it operates.” He strikes out against the ideology (a system of by exposing the way in which security has been “fetishised by political, commercial and intellectual forces which in themselves would not seem out of place in George Orwell’s 1984.”

How is ‘fear’ being manipulated? Neocleous’ position is that ‘security’ is being wielded as a weapon or method of control with the force of ‘power’ behind it. He chooses to engage with just one aspect of this legal political discourse by resting his argument wholly on the ‘use of power’ set within the framework of the creation of an illusion of insecurity. The fear is one of loss. This loss is of liberty, freedom, equality, territory and property. Neocleous places ‘security’ within the setting of classical liberalism. The battle between liberty and security is evident, he claims, in political dialogue regarding the right balance between liberty and the protection of security. The assumption: that liberty and security are antonyms is misplaced and ill founded. Just by looking at current issues such as the anti-terrorism legislation, the suggested implementation of ID cards and the development of intelligent surveillance equipment posits questions which seem to focus on the rights of liberty and the balance of security against them. Can we not be free and secure? Why do we need to give up one to achieve the other? Are we insecure anyway? Neolcleous argues that it is not the balance that is crucial but the rhetorical dialogue which functions as a “mechanism for working any argument into a fundamentally liberal mode of thought,” In other words the trade-off acts as ‘a get out clause’ used to justify dangerous security measures to ensure the liberal project. The key to this argument lies historically in Locke’s account of the prerogative: the power to act legitimately in any way, in emergency situations.

We need to live in order and not chaos. Neocleous asserts that the project of securing order is of the utmost importance to the political institutions wielding the power. The creation of a system of order facilitates and legitimises any action decided by the state under the guise of ‘security.’ He claims that this is “antithetical to the liberal idea of liberty” and he argues that “the state can effectively engage in whatever actions it thinks right contrary to truth, contrary to charity, contrary to humanity, contrary to religion.”

The Archbishop of Canterbury, whilst speaking out against Sharia Law, capitalism and the disestablishment of the church said “We love to have people making our flesh creep. The scaremongering, the anger…keeping the crisis at the forefront.”
Accepting that prerogative powers are ignited when a state of emergency arises he argues that a ‘state of emergency’ or ‘crisis’ has become the norm. Blair asserts that the war on terror will last “at least a lifetime of most of us and thus may take a generation to defeat” and the emergency in question appears to have quickly become a permanent feature of the political landscape.” This he describes in the history of Northern Ireland. The first Emergency Powers Act passed in Northern Ireland in October 1920 granted powers to the military to preserve order and security even during peacetime, thus enforcing and juridifying martial law into domestic law. This in itself legitimised curfews, restrictions on the movement of individuals and detention without trial and the establishment of a police state and under the legitimate guise of security and resting on the power of fear. Neocleous suggests that this discourse or security fetishism renders us encapsulated within a world which exists in a state of necessity where law is of no consequence. This he suggests legitimises acts outside of ‘the rule of law.’

By creating an ‘ordered economy and society’, the project of liberalisation was achieved; using ‘security’ as a method of achieving these goals. Neocleous argues that ‘national security’ emerges from a historical introduction of ‘social security.’ Identifying the origins of rhetorical security dialogue (in the political discourse emerging from the cold war) he suggests that this was a deliberate act. The locus of power he traces to public law and private law is met with similar arguments by De Sousa Santos’ in his paper “Towards a New Legal Common Sense.” It is suggested that globalisation has impacted upon law and suggests hegemonic and counter-hegemonic themes are being utilised to achieve the unfulfilled promises of liberty and equality for groups such as refugees, migrant workers and indigenous people by his suggestion of European integration and the globalization of the legal field and the global reform of law. De Sousa Santos also reiterates Neocleous’ argument of ‘crisis’:

“What the crisis of the regulatory law says, though in a mystified form, is none the less important. It says that, once it is put at the service of the regulatory needs of the constitutional liberal state and of hegemonic capitalism, modern law which is thereby reduced to scientific, state law has gradually eliminated the tension between regulation and emancipation that originally lay at its heart.”

This tension is the separation of public from private law. De Sousa Santos claims that due to this ‘paradigm shift’ we look for law in different places such as labour law, housing law and education in a domestic and global forum.

Neocleous claims that the source of this ‘insecurity’ rhetoric originates within the speech of President Roosevelt in his message to congress , where he emphasised the need to find one singular method of creating a great community:

“Therefore, we are compelled to employ the active interest of the Nation as a whole through government in order to encourage a greater security for each individual who composes it…If, as our Constitution tells us our Federal Government was established among other things , ‘to promote the general welfare’, it is our plain duty to provide for that security upon which welfare depends…Hence I am looking for a sound means which I can recommend to provide at once security against several of the disturbing factors in life.”

The aim was for the use of fear of insecurity to be utilised as a method of protecting both private and public matters. Was private, public, or economic life ever insecure? or was this statement a precursory validation for the (already planned) introduction of the Committee on Economic Security (CES) which was established within a month of his speech to congress? This committee’s aims were to prepare recommendations of a ‘Program of National Social and Economic Security’. Neocleous hints at a covert motive. The locus of power is the United States Administration. The use of this fear scaremongering continued through other sources with the academic papers of economist Abraham Epstein who depicted a ‘spectre of insecurity’ as the bane of the worker’s life under capitalism. More rhetoric followed with Laski who argued that without economic security, liberty is meaningless. Security rhetoric was born, argues Neocleous.

Let us consider the dynamics of how the power of fear operates. Michel Foucault suggests that power flows through groups and does not necessarily operate in a hierarchical structure. Foucault discussed this hierarchical structure at length in “The Means of Correct Training” where he looked at the dynamics of power he perceived within organisations and institutions such as penal institutions and education, commenting that:

“…although it is true that its pyramidal organisation gives it a ‘head’, it is the apparatus as a whole that produces ‘power’ and distributes individuals in this permanent and continuous field.”

The power is discreet and invisible yet powerful enough to function effectively.
In a Marxist-type theory Neocleous continues his theme by showing how the desire to secure society into an order spreads outwards through the ordering of capitalism and the class struggle. This has an agenda of creating a new ordered society or a new world order. He says:

“This ability to batter down all Chinese walls would still rest heavily on the logic of capital, but would also come about in part under the guise of security. The whole world became a garden to be cultivated – to be recast according to the logic of security.” Somewhat disappointingly he fails to identify the gardener. He hints at a conspiracy theory yet takes his hypothesis no further.

In endeavouring to prove examples of where the power of insecurity operates under an accepted crisis/insecure environment, he cites examples of ‘just war’ or legitimised killings. He lists the numbers of deaths by covert operations carried out by the CIA as exceeding six million people. His claim is that this is the policy of the super powers’ ‘war on terror’ which was invented primarily to create an economic order which satisfies the capitalistic tendencies of a greedy, overbearing and dangerous capitalist state.

The argument develops further: the identity created by the United States Government of the ‘spectre’ is one of ‘terrorism.’ Interestingly, Neocleous highlights what he calls a “permanent (mis)information strategy in which, fear is utilised by the use of inaccurate reports that; frighten men in need of security.” This fear scaremongering appears in policy and in statements such as those made by Oliver North during the Iran Contra Hearings: “it is a very important for the American people to understand that this is a dangerous world; that we live at risk and that this nation is at risk in a dangerous world.”

This is a thought provoking concept, but not one I am persuaded by. Whilst I agree that these statements demonstrate the American citizen’s idea of insecurity they do not explain our global fear of insecurity. This insecurity according to Neocleous is an illusion. He suggests the motivation for this is capitalism. He outlines the transactions between the US administration and the ‘market place’ known as Iraq which ‘opened for business’ in May 2003 and which benefited American companies to the tune of over $800 billion.

Although Neocleous offers us no alternative to his thesis in the way of counter argument he presents an interesting viewpoint which is some ways contradicts Marx in his assertion that this predictable paradigm shift is naturally to be expected when capitalism devours what it is to be human. His contribution needs to be placed somewhere within the range of discourse that is resonating throughout the global forum of legal and political thought.

In a Marxist mode of predicted infiltration of the world’s infrastructure another legal theory exists and is presented by Hardt and Negri who argue that global events are changing and suggest an alternative argument. These events in their opinion do not originate from one locus but instead originate from a collective source or “Empire.” This Empire operates without the ideology of separation. It acts like a powerful vortex pulling in every sphere of life and excluding none. There is no traditional ‘inside’ or ‘outside.’ They claim that “The bounded space of civil order, its place, is defined by its separation from the external spaces of nature.” This new and almost science-fiction-like hypothesis rests on the premise we are not separate from one another: there is no separation of powers. Our misgivings and interpretations of the illusions of separation have created a world where the power has mirrored our illusions of insecurity. Marx explains this quite emphatically in his Comment on James Mill in 1844:

“The only intelligible languages in which we converse with one another consist of our objects in their relation to each other. We would not understand a human language and it would remain without effect. By one side it would be recognised and felt as being a request, an entreaty and therefore a humiliation.”

Another argument presented by Michael Dillon suggests that the ‘terror’ we fear does not come from somewhere separate or outside of civil society: it comes from within. Neocleous seems to be at odds with this and yet he manages to persuade the reader that we might not be insecure after all and this fear is an illusion.

Dillon suggests that there is no lack of security, no separateness and he describes in “Governing Terror: The State of Emergency of Biopolitical Emergence” a suggestion that; what we are currently witnessing is the collective and total systematic evolution of a ‘computer-like’ entity which operates in a realm of open and closed circuits. This theory dispels the myth of the ‘spectre of terrorism’ or ‘insecurity’ as an external factor and brings it within society. Accepting that our world structure is changing Neocleous suggest that we form a new type of political discourse one which fits with the new jurisprudence that is emerging which we live. His new rhetoric would consist of:

“In this sense, anti-politics, dominating political discourse in much the same manner as the security state try to dominate human beings. Re-enforcing security fetishism and the monopolistic character of security on the political imagination.”

He urges us to awaken: “The aim is to play a part in freeing the political imagination from the paralysis experienced in the face of security” to provoke thought that politics is about life and people and not control and fear.

‘Critique of Security’ is an exposé of our incarceration within a matrix of mancipation and illusion. In it he argues that we are only ‘not free’ through deception. He claims that we have the power to “give back the gift” of security and take control of our own world. He suggests that the answer can be found in a form of ‘anarchism’ in the individual and in the hegemony of all society. Just as Kant presents the enlightenment as the emergence from a state of immaturity (Sapere aude) and Foucault attempts to venture beyond the boundaries of traditional thought, Neocleous attempts to awaken us to a journey that we have no knowledge of being on, regardless of the events and power struggles which occur around us as we go.

Neocleous’ thesis is very clear. He broaches this controversial and topical subject with excellent clarity and patience. He systematically establishes the historical background of the legitimisation of power though the apparatus of ‘Law.’ He emphasises the current fetishisation of ‘security’ as part of political discourse. He discusses examples in current affairs. He indicates where he sees a centralised point as the origins of the power behind the (mis)-information and his reasoning as to why security is used as a weapon or tool. I disagree with him on this point and instead prefer the theories of Foucault, Dillon and Marx which suggest power is within society. Hardt and Negri call this power ‘Empire’ , but I call it Life. Neocleous’ ‘Critique of Security’ is of critical importance as a synaptic-like link whereby it forms one of the building blocks of global legal thought. Neocleous assists us in the project of awakening; to the realisation of the existence and use of power.

I will end my paper with the hypothesis of Negri lingering in my thoughts and provoking images of a new world order and with the theme tune to ‘Star Wars’ resounding in my ears. Perhaps “resistance is futile” never the less I may just take Neocleous’s advice, as I end my journey as an undergraduate Law student and progress to my role within Law in society and be brave enough to see through the illusion.

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