Challenge Conference Report : «Freedom, equality and exception in market economies»

Conference announcement

ATHENS, 9th and 10th NOVEMBER, 2006

PAPERS PRESENTED AT THE CONFERENCE

Session 1: Security and governance in the market economy

Chair: Professor Nicolas Scandamis

‘Market, Governance, and Security’

Keynote address by Professor Sir Neil MacCormick, University of Edinburgh

This essay was composed in response to an invitation to talk on the theme of ‘Market Structure in Terms of Governance: Intervention in the Market and Security of the Market’. That is a dauntingly large domain for a short presentation, and indeed in respect of it I would permit myself to doubt if the range of my own expertise is adequate to the task. At the time of receiving the very flattering invitation to give a keynote address at this Challenge Conference, however, I was just at the point of putting the finishing touches to my book Institutions of Law. [1]That book has quite a lot to say concerning the confluence between law, state, civil society and the market economy. So it seemed to me that a distillation from the ideas advanced in that book would offer one possible way into consideration of this grand theme, with a shorter and perhaps more modest title to head it.

There are four parts in what follows. The first is about civil society, civility and market economy. The second is about market structure and governance in the Rechtsstaat. The third is about market governance beyond the state. Finally, the fourth is about market intervention and security. Some of you might find that what I have to say is by way of being an assemblage of truisms. It may, however be the case that this is one of the topics on which bringing together some truisms and reflecting on them is a good idea. Moreover, as my Danish colleague Jes Bjarup, Professor Emeritus in Stockholm University, once remarked, truisms may not be very exciting, but they are preferable to untruisms. [2]

I Civil Society, Civility and Market Ecomony

Another colleague, Martin Krygier of the University of New South Wales, brought out a book last year called Civil Passions, [3]in which he asks at one key point the question: What is it that we have that Romeo and Juliet did not have? To which his answer is that we have, or live in circumstances of, civility, meaning that we are not members of clan societies structured around blood feuds, but rather we enjoy civil peace. We can travel across Europe from Brussels to Athens and arrive not expecting anybody to draw a gun on us. Sometimes these expectations are disappointed, but very rarely. In the rituals, the now even more than previously drawn-out rituals, of passing through the metal detectors and getting into the line at the airport, people treat each other with complete civility and mutual trust. Yet this is trust of a totally impersonal kind. The people who don’t shoot me in the airport are people I don’t know. When I compare the circumstances of my ancestors in the Scottish Highlands, say, three centuries ago, the difference is colossal. At base, civility, our sense of living in a civil society, has to do with these two characteristics of peace and of impersonal trust as both a source of peace and its guarantee. You trust people you don’t know, and that’s really vitally important. [4]

If that is a reasonable encapsulation of the notion of civility, what is the relation then between the state and civil society? This is an often-discussed question. The state, in at least one of its forms, is one essential guarantor of the conditions of civility. As Herbert Hart has told us, [5] our laws have a coercive aspect but they work because most of us engage in voluntary co-operation in this coercive system. Without the mainly voluntary element, the coercive element would be ineffectual. It would be absurd to suppose that the police and the criminal law could guarantee peace for us if most people weren’t disposed to be peaceful anyway. But our disposition to peacefulness is not unconditional. For most people, surely, the disposition to be peaceful is underpinned and guaranteed by the law enforcement functions of the state. It requires some reasonable certainty that, if somebody does disrupt the peace in our vicinity, action will be taken to attempt to detect the peace-breaker(s), bring them to trial, and mete out just punishment in case of conviction. Such punishment ought to be of a kind that will both restrict the ability of the violent to continue with their violence and that may, to some extent, deter or discourage others.

The state in this law enforcement function is the guarantor of an important aspect of civil peace. If you don’t also have all manner of other parastatal, non-statal social institutions and relationships and interactions, the state will be no use to you. But if you do have all the other aspects of civil society, then the underpinning guarantee of the state is effective and important.

As we all know, states can become themselves engines of oppression just as bad as what might be handed out by local warlords. Perhaps warlord-societies are even worse than the worst of states, but one speaking in Athens cannot fail to recall that there have been times when states have been captured by sinister interests, which have been willing to suppress and destroy opposition by brutal means. For civil society, the state alone is not enough. It has to be a Rechtsstaat; it has to be a ‘law-state’, to use a translation of the German term, suggested by Åke Frändberg of the University of Uppsala. [6]

So if we are going to have civility, we don’t just need a state; we need to have a state effectively governed under laws, a constitutionalist state. Since the end of the hostilities of 1939-45, it has come to be, at least in Europe, a common proposition, a shared proposition, that the guarantee of the law-state requires to include some common respect for a commonly agreed catalogue of fundamental rights. It may be controversial – it is controversial – exactly where these start and where they stop. One state of the European Union considers the human foetus to be a person protected by law; the others don’t. There are many areas of possible dispute about the exact meaning of our common tradition of human rights.

Nevertheless, we have made the world of the European states safer for ourselves and all our fellow-citizens by agreeing on a commonly sustained catalogue of rights. Moreover, in relation to these rights the ultimate appeal is to a court in which any state against which an appeal is made is always in a minority. One of the problems about constitutional courts inside states is that they can be packed by executive decision. In this, the European Court of Human Rights differs from the great forerunner that is the United States Supreme Court. A US President with a secure congressional majority can – as recent experience testifies – all too easily skew the Court to one set of highly contested interpretations of the constitution. This is impossible with the European Court of Human Rights (and also, be it noted, of the European Court of Justice). We have a way of upholding human rights in Europe, which has its imperfections of course. But it does set a common standard among us that has been effective in restraining governments from crossing lines which it is urgent to prevent governments crossing.

One very vivid example was two years ago, when the highest court in the United Kingdom, called the ‘House of Lords’ for curious historical reasons, [7] had to decide whether the government’s legislation permitting indefinite detention without trial of certain kinds of terrorist suspects was lawful. For it to be lawful, it had to be compliant with the European Convention, or those parts of the European Convention which have been incorporated into domestic United Kingdom law by the Human Rights Act of 1998. In the ‘Belmarsh’ case, [8] the House of Lords, after very careful consideration, concluded that the provisions the government had made violated the guarantees against discrimination in the European Convention, and they so advised the government. They issued what is called a ‘Declaration of Incompatibility’.

The first reaction of the Blair government was to say, «Well, that’s what the judges think, but we think differently». The second reaction, however, was to acknowledge that Government and Parliament had to bring themselves into compliance. They must rewrite the law in a way that achieves the kinds of security measures the government thinks necessary, but only doing so in a way that secures compatibility with the relevant human rights as these have been declared by the UK courts and the Strasbourg court.

That is a very important aspect of the situation in which we find ourselves. It is important also to acknowledge that governments like the Blair government, which are tempted to introduce wide-ranging and stringent limitations on liberty, do not do so for frivolous reasons. These are conscientious people acting for what they conceive to be the public good, in the context of threats from terrorist organisations whose details they know much better than we do. [9] Even so, we have I think wisely established a legal tradition in which, however honestly and for whatever good purposes governments act, they can be stopped if they overstep a mark.

So that’s my first reflection: Civil society is about civil peace, impersonal trust, maintained in part by the state. But the state is a supporter of civility only if it is a law-state. At least from the European point of view, we can say, in perhaps a slightly self-congratulatory way, that the upholding of a catalogue of rights such as those in the European Convention gives our states that quality of Rechtsstaatlichkeit or constitutionality. This is a necessary element of the underpinning of civility.

II Market Structure and Governance in theRechtsstaat

Market governance is central to the subject-matter of this paper. So what about market governance? It seems to me again important, if truistic, that markets presuppose civility. [10]] You cannot have an extensive market economy without civility, and this really simply follows from the definition I gave. For markets require impersonal trust. You buy things from people you don’t know and you trust the reputation of people you’ve never met. If my mobile phone went off by mistake in the middle of this presentation, you would realise that I am a customer of Mr. Nokia. Well, not quite that, for there is no ‘Mr. Nokia’. Nokia is the name of a town in Finland, original home-base of a company that specialised in timber products. Then it diversified into paper, then to written content of paper manufactures, and finally moved over to other ways of communicating messages than on pieces of paper, and there we are. Now Nokia is a multinational corporation with which many of us deal, and whose products we trust, notwithstanding a total absence of personal knowledge of any of the directors of the company or indeed any of its operatives.

Corporate capitalism has come to be one of the salient features of contemporary market economies. [11]] Trust is not only in people, but also in vast impersonal institutions governed by a plutocratic elite whose values and self-conception separate themselves widely from those of their employees and their consumers. This is a situation unforeseen by the early proponents of market economies such as Adam Smith. Indeed, the development of the ‘joint-stock company’ was initially resisted by apostles of Smith and of other classical economists as permitting unjustifiable concentrations of power and capital. A V Dicey went so far as to condemn corporate capitalism as a form of ‘collectivism’ or ‘socialism’. [12] That critical view may be more than ripe for re-visitation, by anyone concerned about the conditions of mutual regard and mutually recognised equality as persons that characterises civil societies. This, however, is a question to be pursued on a different occasion than the present. Suffice it to say that market governance is governance of a domain in which the acting persons are corporations as well as ‘natural persons’.

Even with this important qualification noted, it is appropriate to remind ourselves that conditions of general and impersonal trust are omnipresent in an extensive market economy and are essential to its working.

There are other ways in which the market presupposes civility. For a start, we need some effective exclusion of private violence and coercion. A student recently explained to me at a seminar in Brussels the work he is doing towards a thesis about the relationships, the parallelisms and the differences between the Mafia and the Italian state in Sicily. There one may find a classic illustration of the dangers of a situation where private violence can sometimes outweigh the power of the state. In such circumstances honest trading becomes impossible. Dishonest dealing drives out honest, and there have been many well-known scandals showing the evil results of corruption. Buildings collapse because the tendering process, although it was formally legal, was corrupted by the intervention of various forms of blackmail and threatened violence. Money is siphoned out of legitimate activity and into illegitimate.

It is also impossible to sustain markets without security of property and the repression of theft and fraud. You only buy what you can’t take. So it has to be clear that you cannot get the things you want without buying them. Otherwise the market will not work. Fraud nowadays is plainly a very wide-ranging problem, given that so much of our dealing is not merely at arm’s length and with strangers, but with strangers whose premises we never see, because we do so much of our purchasing on the web or by e-mail. Those who do purchase by e-mail are becoming more and more aware of the dangers, the exposure to fraud, to which business on the web gives rise. There are thus some forms of expansion or extension of market relationships which magnify risks that are always present in any market, risks of cheating of a kind which, if it became general or even particularly widespread, would defeat an honest and reasonably working market.

It becomes important likewise, for the same and for related reasons, to exclude illegal operators. By this I mean people who operate parasitically upon the open public market. For example, drug barons seek to launder profits back in through gambling casinos or other forms of legitimate (if always somewhat suspect) business. Trying to ensure that there is an exclusion of illegal enterprises is obviously one of the important regulatory conditions for a satisfactory market system.

In relation to all these topics, what is salient about the state’s role is its repressive and coercive aspects. Just as we depend upon the state as an essential guarantor of civility or civil peace, so likewise – really, as part of the same process – we depend on the state, through the operations of law-enforcement and through the criminal law, to protect the conditions of honest dealing in markets. This is critical to maintaining the conditions of continuing impersonal trust.

Another thing which the state has to do, which is really rather a different thing, is to create the conditions in which the moment-by-moment results of the market trades appear sufficiently legitimate to citizens in general. In a not very advanced or original way, I share the view, first put forward by F A Hayek, that markets are enormously efficient information exchange systems. [13] According to this, the quickest way that you can find out whether somebody else wants what you have to sell is by trying to sell it in a open market. The quickest way to discover that you are misapplying your talents is to find that nobody wants to buy what you are willing to make, so you receive a signal that you should change to doing something else. Thus, as Hayek puts it, markets are a way of ensuring that everybody can act upon fragments of a body of knowledge the totality of which no single mind could possibly possess.

This property of markets makes them the best way of efficiently allocating human effort, and to some extent of allocating resources. But, contrary to Hayek’s view, there are conditions of perceived and genuine legitimacy, which depend on a shared sense of social solidarity and social justice. That is why one of the proper roles of the state is that of intervening to rectify the market in some degree, providing public education systems, providing public health services, and providing some forms of at least a safety net for social welfare. It is an open, at any rate a hotly disputed, question how far more extensive schemes of redistribution can be accepted. How far can one go in that direction without cancelling the essential virtues of a market economy? How far can one rectify market outcomes without subverting the whole business?

As noted, it is a very controversial and hotly debated question, how far solidarity and distributive justice, as functions of the state, conflict with and how far they actually underpin and secure the possibilities of free markets perceived as generating legitimate results. One of the roles of the state anyway – how extensive is controversial – is this sustaining of social solidarity through schemes of distributive justice.

The state thus guarantees retributive justice through the criminal law, and distributive justice through the public law,. It also has to attend to the demands of corrective justice through its courts that deal with matters of private law, or civil and commercial law. This is undeniably an essential function for law to fulfil in a market economy. Such courts exist in order (among other things) to ensure that those who are minded to break their bargains can have effective remedies taken against them. Again, one has to observe that securing the enforceability of bargains is a realistic goal only in a context in which the great majority of people keep their bargains voluntarily, out of a sense of common interest perhaps as much as a sense of mutual obligation. Coercive interventions presuppose a general background of voluntary co-operation. But voluntary co-operation may require the understood fall-back of coercion.

No doubt, what I am sketching is by way of being an ideal world-picture. There are many cases where people can with impunity break their contracts. In principle, however, the institutions of the civil law exist to give the same kind of underpinning guarantee as the criminal law does in the context of social peace, a guarantee that bargains fairly made can in the end be enforced with the aid of the state. To that extent, we can say that the state is both the guarantor of civil society and a guarantor of the conditions of a free and reasonably fair market economy. This is probably the most efficient way of allocating human resources, provided that adequate circumstances of social solidarity are sustained.

III Market Governance beyond the State

Now we come to the point where it has to be recognised, that states are no longer enough, even though they remain essential to market governance – we have already taken notice of this in respect of Human Rights. States are necessary, but not sufficient. We have now achieved circumstances of market governance beyond the state, and we have done so particularly thoroughly in Europe, though not uniquely so. In Europe, through the Communities and then the European Union, we have created a system of market governance across the whole twenty-seven member states, with other neighbouring associates of various kinds. This involves quite complicated self-regulation by way of lawmaking through the European institutions. [14] Hence has emerged the possibility of much more extensive and still fairly sustained, fairly maintained, trading throughout Europe.

Fairly recently, a new ferry service was opened up between Scotland and Belgium, which is a great advantage to individuals and businesses based in Scotland. They can load cars and trucks on to a ferry docked at Rosyth, just outside Edinburgh. After a night’s voyage, they disembark at Zeebrugge in Flanders, without having to drive down busy motorways through England. This great benefit to Scots was in fact facilitated by a Greek company, Superfast Ferries. This company bid for, and got, the necessary access to the port facilities in Rosyth. The European Commission granted clearance for a ‘freight facilities scheme’ as a lawful exception to the normal prohibition on state aids to industries in the single market.

Here we have a case of what is arguably virtuous ‘intervention’ by public authorities in a market. What is being attempted is to balance prevention of unfair state aids that skew competition against the facilitation of public services in domains like transport throughout the Union. So far, this attempt has been at least partially successful in opening up markets across Europe. Yet this has gone hand in hand with attempting to achieve fairness to all entrepreneurs while somehow squaring the circle between free markets and public services. If the state is both an agency to maintain civil peace and the conditions of market economy, yet also an agency to secure social solidarity, how do you prevent the social solidarity function from becoming an illegitimate state aid which distorts the market? This is all the more problematic in a market that extends throughout twenty-seven states with five hundred million citizens. Clearly, the conditions of fairness need to be set by some form of supra-statal authority such as is found in the Institutions of the European Community and Union. To achieve a fair balance is a perennial and continuing problem, and the current controversy over the Services Directive brings home most acutely this focus of conflict between, on the one side, the imperatives of market freedom, and on the other side the imperatives of distributive justice and social solidarity.

Not unreasonably, people in the Hebrides or some of the Greek islands consider that it is quite a good idea to have free market in the provision of ferry services in areas where there is a possibility of competition, but not such a good idea where these conditions do not prevail. In some of these island services maintenance of ferries all year round is an essential social service that secures regular contact between islands and their adjacent mainland. Here is to be found a natural monopoly, in the sense that only one provider at a time can do provide the service, and only when some public authority is willing to subsidise the provision of the service. It is not clear how a fair system of state aids married to the meeting of public service obligations properly applies in conditions of these kinds.

We do not today need to answer questions of that kind in the context of this conference. We just need to notice that they do arise in quite an acute way, because it has to do with the issue in the long title of this paper, ‘Market Structure in Terms of Governance: Intervention in the Market Governance…’ Beyond that, we have yet to turn our minds to ‘security of the market’.

It’s not only the institutions of the European Union that take us beyond the envelope of the state. We have already mentioned the Convention on Human Rights which is effectively incorporated into Union law by Articles 6 and 7 of the Treaty. But we also have to bear in mind that, well beyond Europe, the developing law of the World Trade Organisation begins to pose similar dilemmas to the ones I was speaking about. These obtain on an even wider scale. The attempt to procure fair conditions of trade for poor countries in the southern hemisphere in relation to the prosperous trading blocks of the North such as NAFTA and the EC has still not reached anything like a satisfactory solution. Anyway, the same problem of market governance beyond the state assumes an even larger dimension, when we contemplate the World Trade Organisation.

IV Market Intervention and Security

The argument so far shows that, in particular in Europe, but not only in Europe, in terms of market governance and security we have transcended a purely state-based conception of what is needed and of how we should govern ourselves. Nevertheless, it is important to remember that there is a continuing necessity for states as the basis of enforcement. [15]

One of the strengths, or perhaps one of the weaknesses, of the European Union is that it has no federal law-enforcement agencies. All the enforcement of European law except enforcement against the states themselves or the European institutions, and except for competition law, remains essentially in the hands of agencies organised through each of the states, according to the principle of subsidiarity. There is also an issue about the sense of legitimacy of judicial intervention where this affects the lives and liberties of citizens. In Europe, governance still requires a far greater degree of localism than would for example obtain nowadays in most of the United States of America. But they have been running their system of government for 200 years. We may conclude that we have a continued need for the state and its guarantees of civility and impersonal trust, but market governance now extends well beyond it, in addition.

So what about the security issue, which has been a central topic of the Challenge programme? Market economies presuppose security and civility. There has to be security against violent subversions and interventions, so some degree of effective defence against insecurity has to be in place.

I would say that that is one of the things which underlines the need for the distributive justice function of the state or, beyond the state, regional funds in the European Union, and other yet more urgently needed schemes of assistance to the ‘Third World’. People do need to have a sense of common belonging. If people don’t have a sense of being valued together as citizens in common of a state or other polity, as in the case of European Union citizenship, then the task of effectively protecting against threats from inside or from outside becomes very much harder. That is clearly one of the problems for all those parts of Europe, indeed practically the whole of Europe now, where there is a substantial Islamic minority. Insofar as there is a sense of social division, them against us, there is a risk of sliding back into problems akin to those which are highlighted in Romeo and Juliet.

So maintaining the conditions of civility and peace requires absolute attention to the conditions of solidarity and requires the strongest possible attention to the prevention of unjust discriminations. One of the very important things about the British Belmarsh case mentioned earlier in this paper was that the provisions permitting detention without trial for an indefinite period applied only to people who were not UK citizens. That was the very ground on which the House of Lords said they were unsustainable.

The inclusion of that provision in the legislation had not been a matter of arbitrarily picking on foreigners. There was a reason, if not a justification, for it. Under the human rights law governing extradition, if a person legitimately fears oppression or persecution in their home country you may not extradite them back to that country, even if there exist grounds that would otherwise justify extradition. So it might be that people who are suspected of terrorist connections in the United Kingdom come from, say, Algeria, but they rightly claim they cannot be sent back to Algeria. Then they must be permitted to stay in the UK, if they wish to, because the only one country to which the UK can extradite them is one to which they may not be sent save by plain violation of international law and human rights.

In these circumstances, the government concluded that something nevertheless had to be done in the case of persons deemed to pose a serious threat to the public safety in the UK. The fact that they cannot be extradited should not leave them free to pursue nefarious activities unimpeded. They are, after all free to leave the UK if they can find a state ready to receive them or if they are willing to take the risk of torture or persecution in the state of which they hold citizenship. Detention of such persons in a British prison is no more than holding them in a jail with only three walls. Anyone who says ‘I will go back to Algeria’ (or Pakistan, or wherever it might be) can go if they wish. It is simply their misfortune that they do not wish to do so.

Despite such considerations, the House of Lords held that the legislation violated the human Rights Act. They considered it an unjust and discriminatory way of dealing with an admitted problem. That draws attention to what I think is a key issue. It remains the case that exceptional threats no doubt call for some exceptional measures of security. A case which was reported the very day before the Athens conference, that of Dhiren Barot in London, gave an instance in which extremely serious evidence, of a kind that was beyond dispute legally admissible and legitimately obtained, had taken an exceptionally long time to collect. It had required enormous police effort in decrypting computer codes and then finding embedded messages within the CD of a long film that was on the face of it apparently innocent material.

The police argument, which was made clear in the course of the giving of evidence in open court concerning the sentencing of Mr Barot (who had pled guilty to the charge), is that sometimes finding out the evidence necessary for conviction in complicated terrorist cases takes much longer than it used to do. For we now live in a world of highly sophisticated electronic information storage. At one time, relatively short periods of time may have sufficed by way of detention prior to the laying of a charge. Nowadays, much longer might be needed, and an acute problem is posed in the case of a person who is suspected of being on the brink of engaging in some serious crime of violence. It may seem necessary to effect an arrest and detention before the case that justifies prosecution has been fully established This is a serious argument there which needs to be taken seriously. The circumstances of a widespread terrorist threat, and the kinds of sophistication which are believed to characterise contemporary forms of terrorist behaviour, have changed the situation in which states and their security agencies are having to deal with problems that confront us all.

On the other hand, it’s quite clear, and is supportable by a fair amount of evidence, that extensive permissions to intervene in the lives of citizens always tend to be used by the enforcement agencies beyond their originally intended scope. [16] It has certainly been a feature of life in the United Kingdom that nearly every piece of anti-terrorist legislation in our statute book has been introduced by way of emergency measures following some serious outrage or another. In such cases, there is a very short time for debate in Parliament on first enactment of the emergency measure. But, by way of compensating safeguard, such legislation is usually subject to cancellation unless renewed within six months. But then it always is renewed six months by six months over many years.

So what start out as emergency provisions of a temporary character can become general and normal provisions. Their permanence creates a risk of subverting the conditions of peace, security and solidarity of which we spoke earlier. So there is a real difficulty there.

It may also be the case, though this is more conjectural, that one can overestimate the purely economic effects of great catastrophes or outrages. When one looks at great catastrophes like the tsunami in the South Pacific or the hurricane Katrina that devastated New Orleans, they do terrible damage to people. They disrupt economic activity locally wherever they strike, and that damage can be locally long-lasting. But they do not effectively break up the conditions of civility and market economy on the larger scale, because people just have to discount for these occasional catastrophes. Big, great, horrendous and deeply wicked terrorist spectaculars, like London on 7/7, Madrid in the spring of 2004, and, worst by far, 9/11 in New York Washington and Pennsylvania, do terrible harm. They are very wicked acts, but they are not themselves destroyers of market relationships. They are destroyers of people.

Governments and security services have to take action to guard against such outrages. They are entitled to citizen support in trying to do so. For it really is very important to stop such ghastly acts of mass murder and destruction, and to bring retribution to bear on those who plan or (if they survive) perform them. It is nevertheless possible for the cure to be worse than the disease. The outcome that is, of all, the one most to be feared is that in which our societies become divided into embattled camps. Legal innovations that may be effective for the momentary prevention of particular crimes may, over the longer and wider view, have more damaging effects in diminishing the conditions of the maintenance of social peace, particularly in communities divided by race or religion or other markers of that kind. And again, on the other hand, any suspicion that states are acting ineffectually may itself damage confidence and create a risk of vigilante self-help that yet further undermines civility.

I don’t pretend to have answers, but I do think that in these problematic circumstances we need to study the disease and weigh up carefully the conditions of effectively curing it.

‘The hegemony of insecurity: a European response’

Paper presented by Professor Michalis Lianos, University of Rouen (WP 11)

My line is, expectedly, a little different, in the sense that Neil MacCormick tried to put an argument, I think, or a kind of interpretation together about trust and civility, and I think my argument goes probably the other way. It’s not opposite, but it most involves the underpinnings, and particularly the social underpinnings, of that type of trust. I wouldn’t mind if it were understood in a sense as an alternative view on both society and the market, inasmuch as security is concerned.

Well, it’s not a secret that security is in many ways a hegemonic discourse, and it’s not a secret to ask Europeans that this is a problem. It is a problem in many ways, not only at the level of what we understand as security I think stricto sensu, but also at the level of an entire social culture that is being in many ways constructed upon that type of security culture. And that’s what I will be focusing on.

That’s why I said that perhaps we need to discuss a European response on insecurity, and firstly I would like to deal with two main aspects, because obviously I will not have the time to deal with everything.

The first is a utilitarian discourse that we see at many levels, political, economic, social level, where arguments have been built, and increasingly built, on the utilitarianism of taking somehow a non-security perspective on issues, social, political, economic, that are associated with security. What I am trying to say is that the liberal part or the liberal people of European public opinion, in many ways, and political parties also, have developed some kind of utilitarian discourse as a kind of hard-nosed liberal discourse to convince European societies that security is a social issue and should be addressed as such.

Therefore I give an example with migration. The European Union discourse on migration has increasingly probably been based on utilitarian arguments, that of course Europe is an ageing continent, and so on. And what we end up obviously is inevitably the use of that discourse for other purposes, like it happens for example with Sarcozy in France, and what we’ll also see probably all around Europe, because when we are talking about issues that are as sensitive as migration, in terms that are not representing the social complexity of the issue and therefore the legal representation of the social complexity, we will end up with some type of tough and supposedly straightforward solution, which of course will go against the initial spirit.

So I think utilitarianism, financial, social, political or otherwise, is a big problem, it’s a developing programme, and the fact that increasingly our institutions take themselves to be more American than they really are, in order to develop that type of spirit, will give us big problems.

The other problem that I see is the problem of public opinion. The problem of public opinion is also a deeply social problem. I’ll try to take a shortcut again through an example, in order to show what I mean.

The fact is that we have elevated security to such an order of significance, in terms of our polities and our societies, that it is very difficult to see how it is possible to look at the relationship of every institution, any institution with public opinion, without that relationship being fundamentally mediated by security concerns. In other words, I would say that the whole risk to society discourse, if you would like, is an excellent training, although not intentional, of societies, European societies and beyond, in terms of addressing all social, economic and financial issues, in terms of security.

Once that’s done, it is very difficult to produce any kind of alternative discourse that sounds serious, because we all know, we are all familiar with the question that security has one specific characteristic, that it imprisons all types of contesting discourses, which is urgency.

So urgency in a sense is the keynote that blocks all types of alternatives. Then you end up again – I’ll give a French example – the possibility of bringing alternatives to the political system, real alternatives, that is, because the discourses are all aligned with regard to security, real alternatives that of course again are hard-nosed and straightforward, meaning that, like in the French political system, if you suppress the social aspects of the security issue, security discussion, so to speak, then obviously we will end up with the paradoxical position that the only political force that is strong enough and different enough to bring in an alternative is le Front National. And this is the problem we have now, that Le Pen is the only one who is seen as outside the established political system and the establishment of, so to speak, a smooth relationship with security discourses.

The underpinning of that, as I see it, is of course social insecurity as such. The fragility of European societies and other societies is social fragility, and this is where I would again disagree in terms of how we manage to establish civility and trust. My idea is, as probably some of you know, that the reason we have that, and the reason we have that impersonal aspect to it, is simply that we are in conditions of an institutional society, that relationships are mediated by institutions, and therefore we all have an organisational conscience.

So the issue is that any disruption in that sense can be easily assimilated to insecurity. That fact that the biographical trajectory which has been extremely vulnerable, probably after the mid-‘80s in Europe, coincides with an increasing conscience of insecurity, is something that we should be looking at more closely. That is why I always argue that challenge should not always be bad specific measures, a bad law or bad international relations; it should be also a bad everyday life, because everyday life as such is what gives the initial social underpinning, which is actually the only social underpinning that can reproduce as such a culture of security.

So there is a kind of continuum, I would argue, of normativity, which includes law and starts in a very, very trivial way. It starts in everyday life, and it has its own dynamics, like all social cultures. And now it has imprisoned us into the position of reproducing, both through acquiescing and through critical discourses, the hegemony of insecurity.

I would like to present, in a sense, the type of possibility in order to consider this disruption in the discourse that we all hear, at least, all of us here who would seek.

Firstly, there is one thing that seems to me important in terms of academic critique and analysis. I think that we are responding too far and too fast, in terms of institutional systems. That is, we are essentially being led by institutional systems, including political systems.

The second part of it is that we do not consider the structural preconditions that establish insecurity as a discourse. I’ll give an example, which will link what I am arguing for with Neil MacCormick’s talk.

How can we apply the issue of trust on affairs, like for example the affair of long-term capital management? I suppose you are familiar with it. It is a big financial disruption, we could call it, of the entire world system through of course some complexities in terms of gathering and investing funds.

Now, what is the guarantee that brought this issue to some kind of successful closure and did not threaten the American and the world economic system? The issue is simply the cost of it, that is, that institutions as such had to find the 100 million dollars that were needed in order for the system not to collapse. So the systemic explanation as such, and I have empirical evidence to show that that happens also in everyday life, for example when we drive a car, is that we are all aware, individuals and institutions, of some type of systemic interdependence that is fine, that is fragile and that we all need to contribute to in order to be able to advance our own projects.

So conscience of interdependence, of course, is in the same way that it is a success, so to speak, a systemic success, is also an individual vulnerability. And that type of danger, that type of risk, and the conscience of that type of risk is something that brings us increasingly closer to a culture of insecurity.

So how is one to separate that type of systemic conscience – I understand that the two things appear completely unrelated, but that’s my point; they are not at all, so I would like you to consider exactly that kind of argument – so how one is, again, to somehow be able to separate these two things, that is, a systemic performance and the degree of interdependence of post-industrial societies on the one hand, and on the other hand somehow compensate for the individual fragility that supports and helps grow an insecurity culture, and of course demands more and more measures for security and feels increasingly fragile regarding external threats.

Let us see things the other way around. Of course it is not possible to export institutions into a type of society and think that civility and trust and so on will be there, like it happened in Iraq. But look the other way around, too, how one deals with for example disruptions of the system in different conditions, where social links are or are not there.

If you compare the Bam earthquake in Iran with for example the Katrina hurricane, you will find out essentially that the loss to the community of course in terms of human resources and any other resource is greater in the case of Bam. But what happens is that a society whose interdependence is built upon social relations, and I don’t mean idealised and nostalgic community relations but I mean interdependence that is not mediated by institutions, that society can of course deal with its own insecurities and transform them and somehow evacuate them through the social culture.

This is the problem that we have. We cannot evacuate insecurity, because we are in systemic conditions that sustain it.

So what can we do? We need to separate, I would say, these two cultures and in many ways law is very important in doing that. I think law as such today, and since we are in a law school, invited by a law school, I think law as such is obsolete regarding these issues. I think law is really backward in terms of understanding today systemic issues, issues of systemic interdependence and dealing, in many ways, with that type of thing.

We have seen the Sarbanes-Oxley law that has in many ways affected American capitalism, but what we have not seen yet is law that regulates society in terms of seeking to produce specific cultures, in other words dealing with society as an objective of legal regulation, in order to avoid the corruption of political cultures, particularly through insecurity, as we have them today.

The other thing that continuum of normativity of course has to do with enforcement and abusification of enforcement. I don’t have the time to go into it in detail. What I would like to argue is again that that systemic conscience that I am talking about of course is the hotbed which has absorbed in many ways what remained of an evaluative culture, the culture of values. We all know that; we know that conservative people regret that type of collapse. This is not my argument.

My argument is that the fact that we do not mediate interaction and therefore trust, so to speak, through values and go directly to the systemic level – we have that systemic conscience – in fact limits us from understanding notions of right and wrong in terms of dealing with them socially. That is, we are not involved.

That’s how for example terrorism has become merely a threat, and that’s how migration is very dangerously, very fast becoming again a danger, culturally speaking.

People see these as problems, as issues, issues that are not to be dealt with as such. That is, we all know society is not responsive to them. And terrorism, for example, is an issue for law enforcement; it’s not an issue for society.

Now, going back to the level of governance, I would think that the governance of vulnerability more or less is what contemporary governance is about. That is, I am able to look at issues that are prescriptive regarding polities, and particularly European polities, despite the historical importance of prescriptive politics in Europe, and therefore going back to a role of producing some kind of protection. That is the issue here.

So in a sense governance in Foucaultian terms, so to speak, has trained, dressé, in that sense, societies into being vulnerable, through the performance of institutional systems, and I include the market in this performance.

Once that is done, and it has been done, the only issue is not to have disruption, and that is a common interest not mediated by values. Governance is there, therefore, in order to ensure that that kind of continuum of normativity goes on.

It is a social cultural deadlock. It is a conundrum that we must resolve, and I think we as academics have that responsibility first of all to point to the fact that today, when a situation where both dominant discourses on insecurity and critique lead to the same result, to the same outcome, because they have a common dynamics.

And in order to break that cycle, we should probably propose some type of analysis – I would have of course my own reply in mind, but of course many others are possible – in order to break that cycle and discuss insecurity in terms of a social response. And I think the European response essentially must drop utilitarianism, reform its relation to public opinion and thirdly, most importantly, deal with security and insecurity as issues of social relations.

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‘Event, Response and the Clinamen: a philosophy which creates a void’

Paper presented by Dr. Andrew Neal, University of Keele and King’s College (WP 11)

This paper discusses the ancient Greek physics of atomism in relation to the politics of the exception. Exceptionalism is a problem of the limits of the rechstaat in times of declared emergency. Under these conditions, sovereign exceptions to law, right and civil liberties are declared. Exceptionalism raises all sorts of philosophical problems regarding origin, cause, necessity and nominalism. Carl Schmitt presents it is a problem of event and response, where the exception is a contingent event that brings forth the necessityfor exceptional sovereign rule. As such the exception is a problem of structural limit that can be posed in many different but related ways: the exception as the limit of law; the exception as the limit of predictability and knowledge; and the exception as the limit of normal politics. But who says the event is exceptional, or that the limit has been reached? For Schmitt, «Sovereign is he who decides on the exception», which introduces a circular logic. Exceptional sovereign authority is justified and necessitated by the exception, but it is the sovereign decides that the exception exists.

The problem of exception, as a problem of limit, is a real philosophical problem, but here, it is always already securitized. This is the danger of the discourse of exceptionalism.

This poses several critical dilemmas. Is the event itself a cause of sovereign exceptionalism? Are there necessities inherent to exceptional situations? What is the meaning of the event? How is that meaning imposed? As critical scholars, given these problems, should we deny that the event is exceptional, in order to deny the necessity for exceptionalism that is claimed to follow? But then we have to engage in Schmitt’s game, the game of sovereign naming, in which «sovereign is he who decides the exception».

Sovereign authority is not simply a rhetorical position that can be successfully countered with another. For authority to be sovereign is to already be the highest form of authority. It is a historical, institutional, cultural and political emergence. Hence if one tries to play the game of sovereign naming, there is very real danger that one will lose.

The same problems apply to contestation over the historical origins of the event. Do the origins of events such as 9/11 reside in something called fundamentalism? Do ‘they’ hate ‘us’ for ‘our’ ‘freedoms’? Or do ‘they’ hate ‘us’ for what ‘we’ have done to ‘them’, in the history of colonialism and Western hypocrisy for example? Again, the contest over an authoritative answer draws us into Schmitt’s game.

The fundamental problem of the exception is a problem of newness. How does the newness of a condition of exception come about? What is the role of sovereign authority in declaring the newness of exceptional or emergency conditions, representing newness, and responding to newness?

Given these problems of origin, cause, necessity, meaning and sovereign authority, the aim of this paper is to posit an experimental approach in the form of an alternative metaphysics. This is the atomism of Democritus, Lucretius and Epicurus that has been picked up by various contemporary thinkers such as Antonio Negri, Louis Althusser and Michel Serres.

Atomism conceives of the world as infinite atoms in fall, in parallel, like rain. Then the clinamen intervenes, in the form of a spontaneous and infinitesimal swerve of one atom from its course. This causes an encounter with another atom, which then encounters another and so on, causing a pile up of encounters. This is classically used to explain the formation of turbulence or a vortex in a gas or liquid.

These ideas are related to chaos theory and complexity theory, such as the idea of the butterfly flapping its wings and causing weather patterns on the other side of the world. The point of this is not to reveal an originor cause, but to show that the originor cause is infinitesimal and impossible to discern, as are the paths of causalityand necessityresulting from it that lead to the final outcome.

These ideas show a certain critical promise as a way of dealing with the problem of the event. They heed Michel Foucault’s warning against treating historical events as great ruptures,as a «single break suddenly at a given moment, driving all discursive formations.» Using the idea of atomism and the clinamen, we can accept the fact of the encounter, but say nothing of its origin, cause or inherent meaning. We can remain agnostic regarding the event and whether it is exceptional or not. But we can then deal with the pile up of encounters, the «tangle of interpositivities» [17] or the knot of representations that has formed around it.

Louis Althusser recognised the significance of the idea of the clinamen in his undeveloped later work. He suggested it might be suitable for a philosophy of Marxism that was not a deterministic materialism. He thought it might allow one to think materialism without problems of cause, meaning, necessity, origin and teleology, describing it as a liberating «philosophy that creates the philosophical void». [18] His account of the clinamen is as follows:

«The Clinamen is an infinitesimal swerve, ‘as small as possible’, no one knows where, or when, or how it occurs, or what causes an atom to ‘swerve’ from its vertical fall in the void, and breaking the parallelism in an almost negligible way at one point, induce an encounter with the atom next to it, and, from encounter to encounter, a pile up and the birth of a world…»

Negri considers this idea dangerous and linked to relativistic contemporary theory. [19] This is because for Negri, real change, creativity and newness must come from within the antagonism of the multitude, not from a spontaneous «swerve». And indeed, Althusser points out that this philosophical tradition has been pejoratively «Interpreted, repressed and perverted into an idealism of freedom.» [20] It is dangerous for Negri’s Marxist philosophy because it posits free action without cause or determinism, and hence sidelines structural conditions for revolution, for example.

Michel Serres, perhaps one of Negri’s ‘relativistic’ contemporary theorists, looks at the implications of atomistic philosophy another way:

«The clinamen is an absurdity. A logical absurdity, since it is introduced without justification, the cause of all things; a geometrical absurdity, in that the definition that Lucretius gives is incomprehensible and confused; a mechanical absurdity, since it is contrary to the principle of inertia, and would result in perpetual motion; an absurdity of physics in general, since experimentation cannot possible reveal its existence.

No one has ever seen a heavy body swerve suddenly from its path as it falls. Therefore we are not concerned with science.

The Clinamen, consequently, finds a haven in subjectivity, moving from the world to the soul, from physics to metaphysics, from the theory of inert bodies in free fall to the theory of the free movement of living beings. It is the last secret decision of the subject, its inclination.» [21]

This is the idea that I want to stress. The ideas of atomism and the Clinamen are a move into subjectivity away from the physics of exception, limit, event and response. Through this, we can refuse to enter the game of sovereign naming and the contestation of the cause, origin, and necessity of the exception. Although atomism cannot be classed as a science and cannot compete as a physics, it is a provocative and deliberate move into subjectivity. It brings the subjectivity of the critical scholar into play in the exceptionalism debate. It is a way of stating that the endless search for the meaning, origins and causes of events such as 9/11 or the London bombings is not a simple problem of knowledge but is already constituted as a domain of sovereign exceptionalism. The idea of the Clinamen is a refusal of this game. The critical scholar can interrogate the reception, representation and naming of the exceptional event, but cannot hope to successfully uncover its true origin and cause. Similarly, the inherent meaning of the event itself is unrecoverable; all claims of necessity are just that: claim to authority, not metaphysical conditions.

We can neither adopt the role of neutral observer or alternative sovereign, but as critical scholars we can fashion our subjectivity in a nevertheless highly political relation to the event. As Foucault wrote:

«criticism is a historical investigation into the events that have led us to constitute ourselves as subjects of what we are doing, thinking and saying.»

‘Forget equality? Revisiting the dilemma of liberty and security’

Paper presented by Claudia Aradau, Lecturer, Open University (WP 1)

I think my paper continues, in a way, the two previous papers that have attempted in various ways to engage with what we see as the securitising practices in the war on terror. And if Andrew has offered a more philosophical answer – let’s go back and look at the ancient Greeks – and Michalis has offered a more sociological answer – let’s look at security and insecurity in terms of social relations, I want to offer a political answer. And my paper is set in terms of a plea for equality.

When we talk about the war on terror, we talk a lot about civil liberties. We see the counter-terrorism measures and the security practices as undermining civil liberties. And there is a kind of consensual discourse about how we need to uphold civil liberties. And there is at the same time a sort of impotence in this discourse, a discourse that is not a powerful enough alternative discourse. And I would argue that it is not even an alternative discourse.

The relation between the liberty that we try to uphold and the security practices is actually an intimate one, and the logic as the security practices is the same as the logic of liberty that we try to uphold. And the paper tries to argue that if we want to take away liberty from the trap of security, we need to see it in relation to equality.

It might all look very strange at this point here, but I will take you slowly through the arguments, and the first part will try to analyse this relation between security and liberty, and the second part will propose a different concept of equality, which I think we need, a concept that I try to argue for, because I think that the concepts of equality that we have are not entirely adequate to the task. And this is a concept of equality that doesn’t come from nowhere, but a concept of equality that is derived from Strabus, Strabus for equality.

So I won’t kind of go back and retell the introduction, but it’s basically about the relation between security, liberty and equality, and what I am trying to argue is that we need to bring back equality, or rather a certain concept of equality. Otherwise liberty, or the way we try to formulate the critique of the counter-terrorist measures, of the war on terror, for this critique liberty is not sufficient ground, because liberty has a very similar logic to security.

And this is not new. The exception, if you want, or what I am going to talk about, I see the exception as much more intertwined with the history of modernity, so that basically modernity has been ambiguously located between a discourse of liberty or a discourse of liberation and a discourse of discipline. So the modernity, the liberty of the individual had always to be disciplined; limits had to be set to it, most likely by the state.

What happens with security and liberty in liberalism, and how is liberty seen nowadays in relation to practices of security? I argue that there is a sort of revival of a Hobbesian or even Kantian discourse of liberty, in which we don’t see civil liberty as the liberty of the individual as opposed to the state, but in which the state becomes the arbiter of freedoms.

And I think Tony Blair is the best example to see how this new relation of freedom and security, how freedom itself becomes a form of security, how this is formulated. So in a letter to The Observer where he tries to defined himself as not undermining civil liberties, Tony Blair confesses: «I believe in live and let live, except where your behaviour harms the freedom of others.» Very Kantian; your freedom stops where it starts harming the freedom of others, in a way.

So the problem of freedom here is not that of safeguarding individual liberties generally from the state, but it becomes a problem of arbitrage, if you want the state as an arbiter, it has to be arbiter of individual freedoms, to discipline the freedom of different groups of the population, so that they do not impinge upon the freedoms of other groups.

On another occasion, Blair reminds us that the question is not one of individual liberty versus the state – the typical liberal question – but of which approach best guarantees most liberty for the largest number of people. So liberty for a certain number, versus liberty for all.

In another quote, this time by David Blunkett, in his defence of the Anti-terrorism, Crime and Security Bill, he argues that the bill contained «proportionate and targeted measures which will ensure and safeguard our way of life against those who would take our freedom away. Because we are talking only about a handful of people, we are not threatening the civil liberties of this country, but we are ensuring those handful don’t threaten those civil liberties.»

So what we have here is that liberty creates a division within the population. Freedoms are allocated differently, depending on the uses the different categories of the population make of this freedom. So it is only certain aspects of freedom that I consider freedom. Civil liberties generally are not threatened.

And I argue that in this approach liberty becomes coextensive with security, given that it is understood itself in similar terms as a logic of separation, as a logic of drawing boundaries within the population, of creating divisions and therefore creating hierarchies.

What makes possible this link, this rebranding of liberty as security, is this very distinction among the citizens, the very idea that there are good and bad citizens, that they are different with their freedom. There are those who have to be disciplined, who have to be disciplined into governing their freedom properly.

So I think that a quote from Klaus Günther puts in a nutshell this approach to liberty, or the argument that liberty is no longer enough, as long as liberty itself is a dividing practice. He says: «The reasons for the acceptance of restrictions on liberties may instead be that this security law operates as a promise of security to good citizens against evil in the international struggle against organised crime and international terrorism. People may be ready to put up with restrictions on liberties because they are given reason to expect that, as good citizens, they will in any case not be affected.»

So all these measures are only supposed to affect some of us, not all of us individually, only the totality of citizens.

So the promise, if you want, of security, which is at the same time a promise of liberty, is a selective promise, a promise that is made only to certain categories of citizens. And as Michel Foucault has argued, the population, in order to be governed, has always had to be divided in several categories, the ones that can govern their own freedom properly in accordance with the purposes of the government, the ones that are therefore self-governing, or the one whom Klaus Günther calls the «good citizens.»

Another category is of those who cannot or will not manage their freedom properly, and there are three categories of these people who cannot or will not manage their freedom.

The first category concerns the people who will not manage their freedom, those who are seen as permanently delinquent, those who need to be cleared out of the way. And I would say that the paradigmatic example for that is obviously the international terrorists.

There is another category, of people who could develop the capacities for self-government, for governing their own freedom, through discipline or through compulsion, you know, through the imposition of more or less extended period of discipline. And also there the paradigm is the subject who can become democratic and therefore govern his or her own freedom; you can think here of the Iraqi or the Afghan subject.

There is a third category of subjects who cannot govern their own freedom, because they lack the capacity, mainly due to external reasons, for social reasons, questions of poverty, of ill health, of inadequate education. And I would say the paradigmatic example is the second-generation migrant, the one who can be recruited by a terrorist organisation, given specific social conditions and given specific forms of exclusion.

What I am trying to say by kind of taking you through all these forms of categorisation of the population and the ways in which some can govern their freedom and some have to be disciplined, coerced into governing their freedom, or simply neutralised or eliminated, if they will not govern their freedom, is that I think that these practices of security, practices of dividing and ordering populations are fundamentally based upon inequality.

In order to be able to have practices of security, and in order to be able to divide freedom, to have liberties differentially allocated to specific categories of the population, you need to have inequality.

So it seems to me that the essential logic of security and of security practice and discourses of freedom in the war on terror but more generally within liberalism is inequality. And what we have here is actually a legitimation of inequality. Security legitimates inequality, and it creates hierarchy, because obviously you fear another and then you have to order and divide populations so that you set yourself apart from those whom you fear.

So security – and this is the crux of the argument – depends upon the intrusion of inequality in political life.

And here I come to the opposite part of the argument. Essentially the logic of security is that of inequality, and this appears also to be the logic of liberty and is the way it is being used in the war on terror. Is there a concept of equality that we could use to kind of rescue, to salvage liberty from the trap of security?

Equality is a very awkward concept. It is very awkward because it has come under increased attacks – you know, in the seventies with neoliberalism there is all this idea that equality is associated with socialism, that who wants equality wants some form of totalitarianism. There is also a leftist critique, if you want, a feminist and post-structuralist critique, of equality inasmuch as equality is seen as denying difference, equality is seen as unifying.

And then there are some, a few unlimited exceptions of equality and liberalism – you know, for liberalism equality and liberty are seen in some form of a paradox. Wendy Brown has argued that «Premising itself on the natural equality of human beings, liberalism makes a political promise of universal individual freedom in order to arrive at social equality or achieve a civilised retrieval of the equality postulated in the state of nature.»

So for liberals equality is a promise, is a goal to be achieved sometime in the future, which ask questions about equality of what, in what sense, how much equality.

There is also an equality that we seem to all accept nowadays, which as I argue is a form of very limited equality; it is what I call arithmetic equality. It is the fact that we are all exposed to the same merchandise, we are all exposed to the same goods in global capitalism, and therefore are all equal, as a certain idea of equality, which I think takes away the power of the concept of equality as it was formulated in the struggles for equality.

So this equality is therefore an awkward problem for liberalism. Equality is even a more awkward problem for security because, as I have already argued, illiberalist security legitimises inequalities.

But from Hobbes on, equality was seen itself as the problem of insecurity, so for Hobbes the state of nature as the state of insecurity that has to be surpassed within the state was basically a state of natural equality.

So within the state, within the Leviathan, something strange happens, you know, an initial form that political equality that people have in constituting the state is undermined through all sorts of practices of inequality and domination within the Leviathan, inasmuch as to ensure security the state again has to discipline and dominate its citizens. You know, the freedom that the citizens have, the subjects have within the state is what Rob Walker and Andrew Neal have called a ‘qualified freedom.’ It’s a very limited freedom, or otherwise it is a freedom defined by the silence of the laws.

How does the state make sure that citizens interpret properly the silence of the laws? Well, by disciplining those citizens, and many people have argued that the citizen in Hobbes is actually an artefact; it’s somebody who has to be made disciplined, has to be made fit for society.

The state also in Hobbes does not only need to discipline citizens so that they can properly interpret the silence of the law, but it also, as Hobbes says, needs to ensure the prosperity and the happiness of the people, which is also linked with the idea of security. To do this, the state needs to create forms of freedom and to ensure like the freedom of circulation if you want freedom of trade, and to ensure that people use properly probably these freedoms.

So you can see how there is some sort of extension of these secondary measures – you know, the creation of a subject that is able to govern its freedom and therefore a whole array of other measures that are linked with hierarchy and inequality in the Leviathan.

So what kind of equality? You know, is there a concept of equality that we can actually see as functioning in relation to security, given this tradition, if you want, this Hobbesian tradition, and that is this liberal tradition of thinking equality.

And I have used the concept that has been formulated by Christophe Menke, which I think is very close to Jacques Rancière’s idea of equality as the universal concept of politics.

So what Christophe Menke does is look at the French Revolution struggle for equality, and he counterposes a Marxist analysis of the French Revolution to Babeuf’s idea that we should try and achieve some state of perfect equality, which again was seen as leading directly to terror.

Marx does not have such an idea of equality, and I am referring here to his analysis of the French Revolution and not to the Capital or the idea of economic equality.

But what happens in the French Revolution is that the demand for equality is raised in an objection to individually experienced interests. The egalitarian relationships which are demanded by revolution remain related to these interests in accordance with their normative meaning.

So equality comes in not as a primary concept but as a secondary concept, as a sort of response to situations of what Marx calls debasement, enslavement, neglect and contempt. So to social situations that are experienced by individuals as interests or as social wrongs, and equality comes in as a demand to rectify these situations.

So equality is no longer a substantive concept, as was liberalism. It is not something to be shared or something to unify us. Equality is not a goal. Equality becomes the very premise of a political process, which is defined in relation to situations which are experienced again as debasement, contempt, inequality or domination.

So in this understanding equality becomes a contextual and relational concept that can only be seen linked to these individual demands, against whatever is perceived in a situation as inequality.

And similarly, freedom I think, if we link it and if we see it again as a contextual and relational concept, freedom is whatever is perceived by whatever is the reaction of individuals to a situation perceived as domination.

So equality becomes non-discrimination and liberty becomes non-domination, in specific situations that are social wrongs. And here is why I think Menke joins Jacques Rancière, who has a specific terminology of the wrong. So equality is formulated, a demand for equality is formulated at the beginning of the social process against a situation experienced as a wrong.

Of course, for situations to become social wrongs they have to be interpreted, so there is a whole process of interpretation of forms of injury and forms of wrong socially, rather than individually. And there is a kind of another warning that I would have against the forms of what people have called therapeutic governance, where forms of injuries and forms of wrongs are interpreted individually, as again the problem of the individual in governing herself or in governing her or his own freedom.

So in this form seeing equality as relational sees equality as a demand, a specific situation of domination and inequality, it becomes linked with freedom, with freedom that can no longer be divided, and in that sense it can no longer be appropriated by security practices.

And I would like to conclude by referring briefly to the example of indefinite detention that you have used, of indefinite detention of suspected terrorists that you have used this morning, because I think I can show how a limited concept of equality cannot function, but the concept of equality that I propose here shows the kind of extent of the lost tops and where other forms of equality come in.

I think one of the reactions, the government reaction to the fact that the proposed act was considered to be discriminatory because it was discriminating between UK citizens and foreigners, was that then we are going to apply the law to everyone. So UK citizens would be as much subject to the law as foreigners.

What happens here is that you kind of get a sort of cynical concept of equality – you know, we are all exposed to the same law, inasmuch the kind of arithmetic equality I was talking about. What is missing here, and what I think was maybe the intention of the discrimination accusation, is that equality needs to be formulated, the demand for equality needs to be formulated in a situation that is seen as wrong, that is seen as a situation of debasement, if you want, a situation of inequality.

And it’s only by interpreting the situation, by interpreting the whole situation of the act as a situation of inequality, that we can realise that this form of cynical equality is not possible. There is no limit to it, otherwise we kind of end up with a form of negative and cynical politics.

So to conclude, and also follow up on the ideas or on the proposals on how we can engage with these measures, I think that we need to engage in processes of interpretation of situations, as situations of debasement and injury, as situations of discrimination and domination, and relate liberty and equality, so that equality can become a principle for this critique, whether we are talking about equality of citizens or equality of humans, that we need to make sure that we involve this principle in different situations.

And I think there are situations in which you can see the principles or principle already at work, for example the idea of UK citizenship working in the case of the Guantanamo prisoners – you know, those who are UK citizens were finally liberated.

So there are forms of equality that we can see at work, but the main step that we have to do is, if you want, a form of reinterpretation or of translation of measures in the war in terror, as specific measures of domination and discrimination.

‘Organisational responses to the crisis of terrorism’

Paper presented by Patricia MacColl, Lecturer, University of Teesside

I have to say that I feel as if I am a complete novice here because my background is completely different from what you have been hearing up till now, you know, the kind of philosophical, social, political angle on this. But my most recent background is teaching aspects of human resource management. So I am coming at the question of terrorism from that angle, from that perspective, of internal organisation, priorities, processes, dynamics. So it’s entirely new territory, and what I am offering you is really where I’ve got to so far in terms of my own journey in exploring the relatively limited literature that I have come across that is looking at this perspective from the angle of business and management.

I kind of played around with metaphors that I could use to describe what I am trying to do, and I came up with a potpourri, but that was kind of the wrong sense. And I thought of a ragout, but then that’s all mixed up together and you can’t pull the things out.

So what I feel that I am offering you is a kind of smorgasbord, if I am pronouncing that right, of ideas, of concepts, of frameworks that I have collected. So I am not making any claim to having reached any kind of conclusion here; it’s just this is some stuff that I have picked up along the way, some of which, as I have been listening to what people have been saying this morning, do connect, even though at a very different level, from that kind of political down to the organisational.

When I started this exercise, which is about a couple of years or so ago, just exploring what people think about terrorism and business and management, I found myself drawn into three fields of writing about this. One, there is some stuff about business management and terrorism, largely American, largely triggered by the response to 9/11. That also took me into writing about crisis management, because some of the articles were writing about terrorism as a crisis event, so it was treating the issue as an event which was disrupting the known world, if you like. And I had a brief flirtation with some writing on corporate social responsibility, and I’ll say a little bit more about that in a moment. So that’s what I am drawing from.

And if I say just a little bit about my early impressions of what I was picking up, one was the volume. I mean there wasn’t a lot of this about, particularly in relation to business management and terrorism.

The second impression was really about the scope of what I was finding, you know, what little was there. And understandably, because you are talking about business practitioners, it was written from a practitioner perspective, so largely uncritical, untheorised. And prescriptive, and largely about risk avoidance, about mitigation, about protection of property, and just occasionally about protection of people, particularly if you are an important person, but much less about protection of the general workforce.

So then – and this is where I’ll need to read a quotation to you – then I came across a citation from Tahart who writes about crisis management, and particularly in the public sector, I believe. I am just going to read this out, because it describes very well I think what I was finding, although he is talking about crisis management, it described very well what I thought I was finding, in terms of treatment of terrorism from a business and management perspective. And this is what he says; I thought he said it very well.

Talking about crisis management, he says, «This managerialist orientation tends to be interpreted rather exclusively in functionalist, technocratic terms, analysis being for policy and organisation practices. This takes the form of detailed discussion of issues of mitigation, preparedness, response and recovery.» And I thought that encapsulated extremely well – he said it much better than I could – in terms of what I was finding in the literature on business and management. So it was about risk avoidance and protection or property.

Which I thought was all very well, but it’s kind of business as usual, really; it wasn’t looking at it at any different angle.

Then as I kind of reflected on this and analysed it in a little bit more detail, it seemed to me that there were different levels at which even this literature was dealing with it. One is – and I think this is the most common – dealing with terrorism as a crisis event, as a kind of one-off. And there are then calls for the information gathering, and the phrase that struck me was ‘the development of crisp, secure management plans to protect businesses against this contingency.’ And I’ll come back to this: you know, just how realistic is it to seek crisp, secure management plans in this kind of situation?

Another stone that I came across was, rather than dealing with terrorism as single crisis event, it is recognising that it’s an ongoing contextual factor, which from a contingency perspective of business strategy needs to be taken into account in the development of business strategy. This is looking at terrorism as a more or less permanent factor out there, which organisations are going to need to respond to, in terms of securing, still about securing survival.

And one group of people, somebody called Cincotta and a group of colleagues, has picked this up. And he is looking at the development of international markets, marketing strategy particularly, and what the conditions of terrorism mean: Does an organisation attempt to develop an international basis for its business? Where would it do that and how would it do that? So that is another strand that is coming through.

And they are looking at that from the perspective of the marketing function, and you also get other professional functional experts coming at this, so you get human resource management people, you get human resource development people, you get facilities managers, you get risk analysts, coming at this from their own functionalist angle. And the impression I get is it’s as much about boosting the significance of their function as kind of fundamentally addressing any problem here. It’s kind of, you know, I’m an HR person, take me with you, because I’ve got the answer to your problems.

And this is particularly from human resource management: they are constantly fighting to get a place at the top table, so this is an opportunity for them now to kind of project their own interests.

The third theme that I found, and this I guess was by far the weakest, the weakest in terms of how much attention seemed to be being paid to it, and this was some people who were suggesting that well, perhaps business needs to take some responsibility for the situation that we find ourselves in. And this is people who are looking at what are the roots of terrorism, and some of it is, for example, from Islamist fundamentalists, a kind of ideological basis. Some of it is seen to have emerged from the global operations of capitalist organisations, and a resentment perhaps about the impact of that on the lives and cultures of the countries that they have operated in, and perhaps we ought to think about different ways of doing business and doing different types of business.

I have to say that that was a stream that kind of ran out into the sands, if you like, because particularly when I thought of the roots of some of this being in an ideological basis, and it’s difficult to talk about this in anything that just doesn’t sound trite, but you know, there are people out there who hate us and it doesn’t matter what we do, they want to kill us. So suggesting that a kind of shift in business plan might be an adequate response to that seems a little futile.

However, there are some extremely, I found extremely interesting articles talking about taking a stakeholder perspective, but you can only take that stakeholder concept so far. Do you include the suicide bombers as a stakeholder? You know, it’s just kind of a logical absurdity, if you like.

But there are also accounts, stories, case studies of organisations who are trying to make some difference in where they are doing business, the kind of business that they are doing and how they are doing it.

OK, so if I go back to this treatment of terrorism as a crisis event, the phrase that stuck with me about the call for ‘crisp, secure management plans to protect your business against this event,’ the language that is also beginning to appear alongside this call for crisp, secure management plans is the question of perhaps this is a mission impossible, you know, the recognising the complexity of the situations, and recognising the complete unpredictability of what might happen, when, where and to whom.

I picked up on an article which is actually talking about leadership and the social construction of leadership, by Keith Grint, who is an organisational analyst. But one of his purposes – and here is where you would have another slide if I had organised myself better – is to draw attention to different types of problems, so different situations.

Although on the one hand he ends up saying that leadership is socially constructed and situations are socially constructed, he starts with what I find a rather useful typology of problems, and effectively what this is saying is well, different situations, different in terms of their certainty or uncertainty, call for different types of response. And the typology that he is using is categorising problems as ‘tame problems,’ ‘critical problems’ or ‘wicked problems,’ and he is drawing from somebody else’s thinking here.

And the tame problems are ones that he would say well, an appropriate response to this would be managerial. They are problems which are relatively familiar. They might be complicated, but at the end of the day if you simply work through the known process then you can come out at a reasonable solution, a kind of unilinear process. So that was a tame problem.

And then he described what he was calling wicked problems, which are complex rather than complicated, and there is no unilinear solution to this. And he is saying that here the approach which is most appropriate would be leadership rather than management.

And interestingly, it’s not just a question of putting in tried and tested processes, but the role of the leader would be about asking the right questions, not giving the answer but asking the questions. So what is required here, he said, would be a collaborative process, drawing on different perspectives.

Interestingly, one of the examples that he gave to illustrate what might be a wicked problem is developing a strategy to deal with global terrorism. And as a way of I guess demonstrating the difficulty that people who are trying to operate in this way can find themselves in, he gave one or two examples, and I think one was the Cuban crisis, and he was drawing on recordings that were made of President Kennedy and his discussions with his advisors about how to respond to this.

And that showed that he was taking this leadership approach. he was asking questions; he wasn’t assuming that there was a quick, easy response to this. And of course then the response from the other side was, I think, if I’ve got this right, Khrushchev – was that the time when he banged the table with his shoe?

So the difficulties that you may find if you are trying to approach this kind of situation from one perspective is that somebody on the other side responds from a different perspective, or even that the people on your side want to be told what to do; they want a simple answer.

And that was his third type of problem, which is a critical problem, which is one which is both complex and is demanding a speedy response. And the kind of example that he used there was like a disaster, like some of the kind of terrorist events that we have faced.

So although on the one hand he was saying there are these different types of problems that seem to call for different responses, he also went on to say that the situations are defined as much by the participants as by objective factors. One of his examples was – it’s kind of UK politics still – the late 1990s – I can’t remember which decade it was, Callaghan winter of discontent, when he came back from a kind of world finance conference. And this was the time when the lights were going out all over Britain, and at the airport he was confronted by journalists demanding to know what he thought about this crisis.

And apparently his response not what everybody thinks it was. His response was well, I don’t think other people in the world would necessarily think that this was a crisis, but of course what the media picked that up as was: Crisis? What crisis? And that is how the crisis in fact developed, because he was seen as not being responsive sufficiently to the crisis.

So situation defined as much by participants as by objective factors. So again I’ll just give you another quotation from his article in Human Relations, published in 2005. «Contingency theories that are premised on securing independent and objective accounts of the context, essentialist approaches, are fundamentally flawed. The context is reconstructed as a political arena, not a scientific laboratory.»

So the calls for the crisp, secure management plans are not only flawed by overlooking the complexity of the situation, I think they are flawed by overlooking this social and political aspect of them.

Other writers also draw attention to the socially constructed aspect of problem situations. Weick, for example, Karl Weick talks about ‘enacted sense making.’ People make sense of situations through action, and yet the action that we take changes the situation that we are in.

Just drawing on another set of writers who were looking at alternative views on crisis and drawing on different disciplines and exploring the psychological aspects of responses to a crisis, social, political and the technological structural. But I won’t attempt to go into any more of that in more detail.

Where I wanted to finish, really, was returning to one of the more recent pieces of work on research on terrorism in management, and this has been published by Cincotta and his or her group of researchers in the Journal of International Management. And they are looking at the marketing implications for terrorism on business, but they came up with quite a nice framework for levels of analysis within business, analysis on terrorism, and they talk about a primary level, micro level and macro level.

The primary level is at the level of individual business, individual firm, individual person, and they talk about looking there at the kind of thing which I started with, which is about the damages, the injury, the effects of terrorism.

The macro level, they say, is really beyond their scope. You are talking about the global environment, and the problem that they see was that is too broad-based, and there is a difficulty of untangling the effect of other issues from purely the kind of terrorist on management.

They have chosen to focus at the micro level, which is the impact of this on region or industry and cross industry, and I can see the value of that. However, I think they were too quick to dismiss the value of exploring the effect of this at the individual or organisation and at the individual level, because it seemed to me that at that level you could pick up on some of the micro practices at the social level and the internal politics of how these situations are responded to, and that to some extent I think reflects the wider global issues that we have been talking about.

So for me, from my perspective, I would think at that primary level and at the micro level of the region, the particular issues happen within regions, or the industry and cross industry would be interesting avenues to explore this further.

Session 2: Rivalry of rights in terms of security:

the European paradigm

Chair: Professor Malcolm Anderson

‘Institutional power to create security: Integration through non-attributed competencies’

Paper presented by Professor Nicholas Scandamis,

National and Kapodistrian University of Athens (WP 12)

My official title is: «Institutional power to create security», subtitle: «Integration through non-attributed competencies». I’ll try to reformulate it and I’ll pick up the essential things. And that would be two things.

The first on which I’ll focus is the fact of creation of security and insecurity, that is, that security is not something contingent but is also produced. So the term create security is a strong one.

The second is institutional responses at the EU level, that is, means for integrating beyond traditional divisions of power.

So, I’ll follow the steps first of explaining insecurity as institutionally produced, that is, as not contingent. Then I’ll go to who is producing security and then how is insecurity managed as a tool for integration and as an integrated tool within the European Union.

It is crucial in this path, the transition from terms, which we find in the treaties or in community documents. First, the term of concern is something which I find is a very good definition of security, as I will explain.

Then, a term of the treaties and of the European Constitution: matter of common concern. And then we have a shift in the documents and the dilution in the documents of general interest which has to be harmonised in order to serve a freedom of information.

So, let’s start from something which is basic. What is the term security? Security is neither a legal nor political concept established by scholars. It is not far to say that it reflects on both, on the legal and on the political. But indeed its essence is that of a practical rationality, rationalitépratique. And because of that it has a de-institutionalising effect. And it is in these terms that it can be discretionary or exceptional or other terms that we very often use.

So, if one was to define security in the simplest possible terms one could say it is a constant concern about liberty. Liberty, a notion that we all know and science has not inherited but a negative flavour, the Greeks admitted that it is not being a slave, Cicero not being obstructed in exercising liberties and the liberals, which are our main interest, a step further, not deprived of one’s chances to exercise liberties.

So, what we should retain from that is that security offers an analytical possibility, vis-à-vis the political structure, which is different from the one of institutions. And it is a shift, a changeable notion. We have state security, we have collective security, market security, public health, social security. What is it within the treaties of the European Union?

We have one notion which is from the very beginning which is predominantly that of a political security derived from the very existence of a legal code, the rule of law. We have article 6 and 7 of the Treaty of the European Union, we know that in order to remain as a member state one has to accept as a member state the principle of legality in a most absolute way.

Then we have economic security of a very particular nature, evaluative but also as a disciplinary method, which are the Articles 4 and 99 of the EEC Treaty, we will come back to that. And there is also internal security in the more traditional sense, for states and individuals through a harmonisation of values and measures which if we follow of course typology we might call «dispositif de securité», a method for security.

Dispositif de securité, as contrasted to disciplinary mechanisms and these values and measures, these types of integration which we will analyse, has as objective to re-establish the general segmentation that is caused by the mix of the European governments. Especially lawyers are very familiar with the fact that division of powers are a science in itself, that power is segmented, who made legally, lawfully, say or do something, and on what subject it is a science.

I will go back to the roots of the economic philosophy of the Treaty, which as you know is the German Liberals, as we say, and Röpke, as famous personality of that trend said in 1936 that market freedom needs an active policy and an extremely vigilant policy.

And indeed liberalism is not simply protecting some liberties. Certainly it cannot function without a certain number of liberties, but the new art of government which is represented by liberalism consumes liberties and thus it has to produce liberties and those liberties it has to manage them. So, it is a manager of liberties.

I like a term to formulate this, which is the way Foucault understood the ordoliberalism, because it is very succinct and very imaginative. He says that liberalism is about how to be free to be free. Free to be free I think is a very grasping expression. That is, it is not simply to grant some liberties, it is to create a whole institutional set up and there is a big question if the market is already a mechanism in itself or it is simply an empty place, as we say.

So the state has to create it. If we accept that it is something which determines how to be free, we are talking about a risky relationship, a problematic relationship in the sense that on the one hand it offers liberty but on the other may destroy it by establishing controls, limitations and other.

So the relationship of liberty is one of production and destruction and the point is who manages this relationship within the European Union system.

I will be very brief on the pillar system. It is something which preoccupies us very much in the Challenge Programme, but also it is in the agenda of the reshaping of the European Union at this moment, how we are going to deal with the pillars? We abolish them? We keep them? Disguised? Openly?

But I think, and this is a strong point for me and also some other scholars of the European law, that this structure and the way the instituting treaties are conceived that create an institutional split between economic and political organisations. A split which is there and a split which survives within the European Constitution if it is adopted or the formula which might replace it, because it is a split which is linked with the very philosophy which created the European Union, which is expressed very well by two sayings of Jean Monnet and Robert Schuman. Jean Monnet said that it is a completely new way of governance beyond the states which has no federal precedent, «Il n’ y a pas de federateurs» he said.

On the other hand, Robert Schuman said that it will be based on states, so we have this paradox, this contradiction which has always been there, which will remain and it develops several institutional consequences. So we have two universes, completely different, different principles within our institutional scheme of today.

We have the first pillar which is as we know a new order, largely reshaping international law in terms of supremacy of the community rule and mainly with the individual enacting states by means of directly applicable rules, and all that in the presence of a court with obligatory jurisdiction having as we say the right of the last word.

In such a scheme the institutional autonomy of the member states is really shaky, there have been even writers who said that it does not exist anymore at all.

And we have a second pillar, which is the political, which is basically a traditional international order. We use the term improved intergovernmental, «intergouvernementale améliorée». With no access to individuals, no court intervention and superiority principles of its norms much less ineffective in comparison to the supremacy principle of the European Community.

So here the state remains nominally at least a master. The master it used to be. So state security, external security, is an exclusive task reserved to the state.

In this perspective the third pillar which is the internal security, it started much like the second and what is left works along the lines of the second but tends in some respects to lose much of its substance to the profit of the first one, potentially in the future, namely as complementing the market for its external threats.

So the split which delineates the European Union in fact delineates two different patterns of integration and is some sense this expresses the limits of the European integration as the latter never indeed is meant to abolish state sovereignty.

In this institutional framework the state performs very differently in legal terms. In the first pillar it is acting diluted in the community method. A method as you know where many forces are represented institutionally and the result, the institutional result is always a compromise among these forces.

In the second and the third pillar the state stands largely on its own. In any case security safeguarded by the state as the holder of physical power, but the state at the executive level produces also insecurity. In doing so the state is under strict control at a normative and judicial level in the first pillar while not in the other two pillars.

I will now deal more technically and more precisely to how the security gap which is created within the European Union where we have two patterns of organisation, we have the market and we have the management of security by the states. And we have the community method in the first circle and the intergovernmental methodology in the second. How security, which is something which comes across everything, how, by creating such a gap, how can we control the segmentation of power?

Very often to my students I recommend a historian of economy who has written just before the creation of the European Community, but to whom we are all the more returning, it’s Karl Polanyi. Karl Polanyi, a Hungarian who was a professor in England and he wrote the great transformation and who marked that the big shift in our times is the fact that the market that the ancient Greeks know has nothing to do with the market that we know today, the big transformation is that we have at the beginning some traditional commodities, goods and services. But in the 19th century we have fictitious commodities, which is capital work and money. And from the moment these commodities entered a self-regulating market then the whole society, its very soul, entered into this regime.

So it seems that we are now in front of a new type of commodity, which in distinction to what Polanyi said, we could call it virtual commodity. And this is information. And this is the third pillar. What seems that is under construction in the terms that we are going to see a bit in detail now is that as we have in the first pillar the single market, we are trying to create something similar in the second and third pillar, which we cannot do institutionally because we don’t have the power, so we create by a specific methodology a kind of a single political governance, which operates without abolishing the sovereignty of the state, which as explained is meant to stay there.

So, let’s go back to this term which is very evocative, security as a constant concern for liberty. If we go to specific articles of the Treaty and the European Constitution, we will see that we have the appearance of the term: This is a matter of common concern. What does that mean? It means that from the moment something, even if it belongs to the competence of the state, if it is a matter of common concern, the Union has a right to look into that. And to look into that and to speak about it. It is in traditional terms of international law, it is the right of interference, the right to interfere with the internal affairs of the member states.

When I was in the Commission, something which struck me from the very first moment I entered this institution was that the simple fact of sending a letter to a member state needed a very careful examination if first it was possible to send a letter to a member state, and certainly what to say to a member state and in what style and what terms to use. Which means that the division of power is something that is a far-reaching phenomenon and very deep in fact.

I’ll take as an example Article 99 of the European Community which is the article which establishes the single economic policy. In the Economic and Monetary Union we have as you know the first aspect which is the economic union and there it is in this article which is very clearly stated that the economic policy, the general economic policy, is a matter of state competence. It says just a few lines further that still it is a matter of common concern.

And immediately after we have also one Article, Article 98, which gives all the normative values of how we have to understand the economic model that general economic policy of the state has to observe. So in fact we have the measure, we have principles, unified already as a substance and the power is there for the member state to exercise its sovereignty, I would say rather, as far as the means are concerned, but with a substance already harmonised.

And not only that, but in terms of the economic policy we have a disciplinary mechanism which is stated as such which amounts to sanctions, to very heavy sanctions, very concrete sanctions and we are left with the question how we start with the competence of the state and finally we end up with sanctions, severe sanctions against the state.

Let’s go now through this example to what is here but it is not so nicely stated as in the European Constitution, in Article 3/285, which says in very simple but eloquent terms that effective implementation of Union law by the member states which is essential for the proper function of the Union shall be regarded as a matter of common interest.

This is again a provision which has a contradiction in itself. Member states, as they are the holders of the physical power, they have the exclusive duty to implement effectively, but the way they have to implement is a matter of common concern, that is, we have a right to look into that.

This is a way to create competence, but not the traditional competence we know which is openly power to act. It is a competence to pronounce something, a competence to build up a common logic, a competence to set up specific values and methods, a notional pattern which must be harmonised, common and for the rest the member states are free to do what they want. One might be tempted to say is it not the crucial thing to establish the way in one has to think and let the person to find the way to carry this out but always in the single unified pattern.

Now we have a more explicit transition from this matter of common concern to an enlarged notion of general interest. General interest which is not economic anymore, which expands to everything and it is very difficult to distinguish what is economic and what is political in a single market where the flows are completely open and free.

And this is Article 16 in the Treaty in force now, but the European Constitution Article 3/122 is even much stronger because it says that European law – European law is the new term for regulations, if you want, or directives – European law will define the principles and conditions so that the general interest is not left totally to the member states. Certainly the member states they may adapt but the measure, the standards, the principles, the conditions, that will be defined, horizontally and at the level of the Union.

In fact we are talking about harmonised normative concepts. And there we come to our field, to the management of security. The Commission in the battle against terrorism which has led to a whole infrastructure in ideas, in community acts, there is already a lot of production, has developed its rationale in several documents, documents which are called communications, that is not obligatory, but they are very eloquent in explaining how it sees this kind of harmonisation of normative concepts.

But there are also some acts already, especially protection of personal data, where we see application of this type of harmonisation. Already, what we call the management of security, is defined. There is a community definition already on the table. And I quote: Security management is a deliberate process of understanding risk and deciding upon and implementing actions to reduce risk to a defined level which is an acceptable level of risk at an acceptable cost. In a few words we have already a doctrine but you will notice that we have to define what is acceptable, acceptable level of risk, acceptable cost, deliberate process.

This asks for values, for standards, and without that this has no meaning, so these are produced. And I’ll make another combination, because this is critical also with articles of the existing treaty and the European constitution. The charter in Article 66 as numbered in the Constitution, says that everyone has the right to liberty and security of person. This is the perfect tautology, the perfect contradiction as you may put it, but it says that this trade-off is not resolved at this level. It is left to be resolved with other institutional means.

This Article is also combined with another one which passes ‘inaperçu’ as we say. It says that all those rights, they are coupled with obligations for the citizens and the states and that’s all. So these rights certainly are proclaimed, are guaranteed, but whenever it is necessary there will be some obligations which again are left to be defined. And they are not defined in the usual way where they are stipulated. They are left to the needs, to the circumstances, to the threats, that is to harmonize normative concepts.

One might be tempted to draw a first conclusion and say that the trade-off between security and liberty is in these terms already a way to escape division of powers.

The Commission also said as far as the harmonised definition of security is concerned, that this definition has to be possible and desirable. So there will be a definition, it is coming, but the terms possible and desirable, it is very eloquent because it shows that certainly we are talking in realistic terms but also we are talking about policy, desirable, about desirable limitations of freedom. And what is again interesting is that the Commission accepts the fact that security is something which comes across everything. We cannot speak anymore of the economy and of the realm of the political. And that is why we have a new term which is established in the jargon communautaire: interlinked challenges.

That is, we have segmentation of power, we have different rules applying to different sectors but we must know that security as it is coming across, a challenge, it will never be limited to a specific area of power, of jurisdiction, of competence. It will go across and this is interlinked challenge.

So the state is in front of harmonised targets and we have this new set up of rules that are emerging now under the term of intelligence led law enforcement. That is, law enforcement is to be based principally on free movement of information. The similarity is inescapable with the free movement of persons and of goods, free movement of information. And it is clearly stated in the Commission’s communication concerning enforcement by law, when it says that the first core objective of the information policy for law enforcement is to establish free movement of information between law enforcement services, including Europol and Eurojust.

And there we see a whole theoretical construction. We see the right of equivalent access to data. That is, one public institution has a right to ask for information from another member state, from the Commission, and there is also a corresponding obligation to provide access.

In explaining this principle the Commission says that the security of the Union and its citizens is a joint responsibility. Again the phrasing «The Union and its citizens is a joint responsibility», the citizens, but in a world of international law as the European Union, the second and third pillar, the citizens, this is something unknown legally speaking, to the European Union, this is a state matter. But now we have competence in a very critical political issue over the citizens, that is, the Union has a say on that, can define things.

I will not go any further and I will try to conclude, but I should say that this free movement of information, this intelligence led law enforcement, which is mainly carried out through networks, networking, Europol, Eurojust, it leaves us with a question whether the state really controls these types of networks, because we are in front of a governance of experts. This type of networking certainly it refers to officials who organically belong to their state but they collaborate horizontally, across the borders, and they obey to common standards which are defined at the level of the Union.

We are in a strange phenomenon and we wonder how to really control these networks. Does the state control them? Does the European Union by just defining the standards control them? This is a big question and we will have an occasion to speak later about the protection of the citizens especially concerning personal data.

I will conclude by saying that we have an exercise of power which is not through compelling rules but it is through the logic of this exercise and in terms of security I would say, this is my final word, that we are in front of new frontiers. We are in front of new frontiers because we have the inside of the state, which is a traditional one, which is already depassé, but we have an