Sovereign Power and Counter Law

Food for Thought:

  1. How does the theorization of KIHC presented by Larsen and Piché in their Canadian Journal of Law and Society article differ from Agamben’s theorization of the camp?*
  2. “Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention” is a largely descriptive article. However, the authors also make a normative argument in opposition to the KIHC and to security certificates more generally. What is the nature of their normative argument? Do you agree or disagree? Explain.

The theorization of KIHC presented by Larsen and Piche in their Canadian Journal of Law and Society differ from Agamben’s theorization of the camp because their ideas are built from the ideas of Butler and Ericson. Butler believes that the state of exception is governmentalized. The power is given to officials who have the authority to decide who will be tried, and who will be detained and can also determine whether someone can be indefinitely detained or not. Ericson believes that the state is legalized. The state of exception takes the form of counter law which is law against law or rules about exceptions to rules. It involves the use of legal mechanisms to circumvent procedural barriers imposed by law . Counter law involves the enactment  of new laws to eliminate forms of criminal law that get in the way of causing harm. Larsen and Piche take both these theories into consideration and believe there is a blurred of mandates  as carried out through counter law which plays a key role in the emergence of states of exception because the sovereign is able for example to replace criminal law with forms of immigration law. Also the power given to officials is crucial because they have the authority to keep people detained.

In “Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention” the authors argue that security certificates are just the beginning for these people who are deemed to be a threat to national security. They believe that the certificate process begins with changing certain provisions under immigration law which leads to many other things. There is a cause of trial and error to see which effects will work. The certificate process is expansionary there is no clear answer. But at the end of the day people are still being held indefinitely. With most rights stripped, no access to evidence against them. Not being able to defend themselves in a court of law. This goes against everything most Canadians believe in without human rights we are nothing. I believe that the closing of the KIHC proves that the government does not have all the answers when it comes to what to do with people who have a security certificate against them because of the fact that this holding centre did not last they need to re look at the whole security certificate process and really be able to justify stripping people of their human rights.

Refernces

Larsen, M. and Justin Piché. Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention: The Case of the Kingston Immigration Holding Centre.

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1 Comment

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One response to “Sovereign Power and Counter Law

  1. Could you elaborate on this point? – “Larsen and Piche take both these theories into consideration and believe there is a blurred of mandates  as carried out through counter law which plays a key role in the emergence of states of exception because the sovereign is able for example to replace criminal law with forms of immigration law.”

    What is meant by blurred mandates in this case?

    You close with:

    “I believe that the closing of the KIHC proves that the government does not have all the answers when it comes to what to do with people who have a security certificate against them because of the fact that this holding centre did not last they need to re look at the whole security certificate process and really be able to justify stripping people of their human rights.”

    Note that the closure of the KIHC was a primarily financial decision. All of the current certificate subjects are in the community on conditional release, and it was costing the CBSA a lot to keep the KIHC operational as a stand-by prison. There is no reason to believe that a facility along the lines of the KIHC could not emerge on short notice, should officials decide that there is a need.

    Finally, you suggest that the government should “really be able to justify stripping people of their human rights.” Isn’t the whole point of human rights that they are fundamental and beyond revocation?