Sovereign Power and Counter-Law — Larsen and Piché vs. Agamben

To start I will briefly describe Larsen and Piché’s article “Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention: The Case of the Kingston Immigration Holding Centre”. This article focuses on KIHC which is a prison built for individuals subject to security certificates that is located in Bath, Ontario and was created in 2006. This so called hold centre was created due to the aftermath of the September 11 attacks when most western nations were under much duress and facing international pressure to take action on anti-terrorism. In its hurry to act the government of Canada embraced the approach that exceptional measures found outside the realm of “normal” political practices in democratic nations must be taken.(Larsen and Piché, 2009). KIHC was a prison made to detain persons held on security certificates under the Immigration and Refugee Protection Act. The people being held at this facility were considered to be threats to the nation, and maybe possible terrorists.

Agamben’s theorization of “The camp” focuses on World War II, as he uses this example to show the conditions in the camps, and the inhuman situations individuals were forced to live in due to their race and religion. Also the camp provides a kind of model “by which to understand this degraded life form that is excluded from the operation of law, and where a sovereign ban is exercised over such bare life without the protections of law”(Pavlich, 2011, p. 158).

Larsen and Piché’s theorization of Kingston immigration holding centre (KIHC) in their article differs from Agamben’s theorization of the camp , mostly on the basis of that there will be a shift from a post- to a pre-crime society. Saying that a society in “which the possibility of forestalling risks competes with and even takes precedence over responding to wrongs done” (Larsen and Piché, 2009, p. 209). Therefore, “the convergence of the state of exception and the precautionary paradigm can take the form of counter-law, whereby laws are drafted or reinterpreted with the goal of circumventing barriers to preventative action—such as stringent judicial standards and the right to a fair trial—in the name of pre-empting imagined sources of harm” (Larsen and Piché, 2009, p. 209).  Larsen and Piché  theorization is that state of exception will take form as counter-law which is known as undermining conventional legality. As for Agamben, the state of exception begins to become the rule. According to Agamben, “the camp is the space opened when the exception becomes the rule or the normal situation, as was the case in Germany in the period immediately before and throughout World War II” (Mills, 2005).

Furthermore, Larsen and Piché  make a normative argument in opposition to the KIHC and to the security certificates by stating that the making of the KIHC is an attempt to humanize this way of imprisonment, by making an environment better suited for long-term incarceration. But most importantly Larsen and Piché state that “institutions that operate within the rule of law have proved ineffective,  the claim that we can humanize the camp through gradual reform is dubious. The alternative to incremental “reform” is abolition” (Larsen and Piché, 2009, p. 227). I do agree that these camps can not be humanized and that it is wrong in society for a prison to be designed to hold non-citizens, who are being held there without charge or trail.

Larsen, M. & Piché, J. (2009). Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention: The Case of the Kingston Immigration Holding Centre. Canadian Journal of Law and Society, Vol. 24, 203-229.

Mills, C. (2005). Giorgio agamben (1942– ). In Internet Encyclopaedia of Philosophy . University of New South Wales: Retrieved from http://www.iep.utm.edu/agamben/

Pavlich, G. (2011). Law & Society Redefined. Don Mills, Ontario: Oxford University Press.

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2 Comments

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2 responses to “Sovereign Power and Counter-Law — Larsen and Piché vs. Agamben

  1. Good overview of the nature and purpose of the KIHC.

    You note that one of the major differences between Agamben’s work and my own is the emphasis in the latter on precautionary measures. This is definitely an important point. I would note, though, that both Agamben and Piché and I focus on situations that involve normalized exceptionality.

    I am unclear on your assessment of the normative argument advanced in the CJLS article. You note that we call for the abolition of the KIHC, as opposed to piecemeal reform. But what is the basis of our opposition? On what grounds to we critique the operation of the KIHC?

    • bhally21

      The basis for opposition posed by Larsen and Piché is that of the logic of the camp itself, and that it must be challenged at all levels, and mostly it must be challenged where it finds a space in expressions of necessity and pragmatism, or legitimacy in institutional settings or counter-law. The operation of the KIHC is critiqued on the grounds that it begins as an ambiguous provision under immigration law and results in special prisons, special advocates, special conditions of release, etc. All what are framed as logical and common-sense extensions of the underlying counter-law. KIHC is also the product of a reformist impulse. The KIHC was marked as a solution by the provinces, which became unwilling to confine long-term security-certificate detainees in environments designed for short-term detention. The conditions at the KIHC were pretty inadequate compared to provincial facilities, and the authorities have promised upon opening that the conditions would be better. Larsen and Piché also critique the fact that four of the “Secret Trail Five” are out on conditional release, and are under the most stringent conditions in Canadian history.