U.K. Counterterrorism Law, Pre-Emption, and Politics

Abstract

Since the turn of the century, across North Atlantic countries, counterterrorism law has been an area of relentless, highly prioritized, legal production that often challenges rule of law principles. This article provides a general overview of United Kingdom counterterrorism legislation and, drawing from jurisprudence, state theory, and political philosophy, constructs an analytical framework to assess its implications for the broader shape, function, and logic of law. It starts by assessing the dynamic tension between authoritarian and democratic elements that constitutes modern law, thus setting the overall conceptual framework in which counterterrorism law pertains. It proceeds to analyze U.K. counterterrorism law, by juxtaposing it to its United States counterpart and by deciphering the key trends into which its provisions combine. Based on this account, the article considers the implications of counterterrorism law for the law-form, that is, for the articulation between legal content, logic, and institutionality. It finds that, although the content and logic of counterterrorism law are incompatible with rule of law principles, they are developed in an institutional framework adherent to the rule of law. To account for this paradox, the article concludes that counterterrorism law signals the advent of authoritarian legality, a reconfiguration of the rule of law where the latter holds its institutional shape, but comes to consist of, and be driven by, authoritarian content and purposes. The article outlines the main characteristics of authoritarian legality, compares it to existing approaches to counterterrorism law, and indicates its plausibility for U.S. counterterrorism jurisprudence.

No future: pre‐emption, temporal sovereignty and hegemonic implosion

“…The actus reus of these offences consists of any conduct (including lawful conduct) that can be linked to a final act, however remote. Thus, preparatory offences expand ad infinitum the temporal reach of criminal law and the range of behaviors it encompasses (Boukalas, 2017b, pp. 364–365; Tadros, 2007, pp.…”

“…The audience and its predispositions are the decisive factor for the occurrence of the offence; and they are themselves interpreted by state authorities. Thus, encouragement offences give state authorities selective license to prosecute and punish expression (Boukalas, 2017b, pp. 365–366).…”

Marianne’s liberty in jeopardy? A French analysis on recent counterterrorism legal developments

“…intrusive investigative techniques). The focus on pre-emption is at odds with the principle of legal certainty as the actus reus (substantive act) will often be so broadly and ill-defined, preventing individuals from adapting their behaviours accordingly (Boukalas 2017;Cahn 2016). Detecting risky or criminal behaviour at the earliest stage possible can result in the violation of individual rights (van der Woude 2012).…”

“…This absence of trust justifies a distinct and exceptional criminal treatment in order to protect society and preserve the rule of law. Because the enemy represents an unbearable threat to society, their neutralisation is required before the materialisation of their actions (Boukalas 2017). The link between the expansion of executive power in time of so-called crisis, at the expense of civil liberties, and the enemy penology/pre-crime becomes clear.…”

“…First, the article aims to contribute to the debates among scholars, predominantly (socio) legal scholars, on the use and the consequences of the use of criminal and administrative law in the fight against counterterrorism (e.g. Zedner 2007Zedner , 2016Boukalas 2017;Hodgson 2013). This will be accomplished by analysing the changes in French substantive and procedural criminal law as well as administrative law with counterterrorist legal provisions taken as an illustration.…”