You are guilty because you are an enemy of the State. No matter what you did, they prosecute you because you are a threat. That’s the criminal law of the enemy.
Today, I want to speak to you about a legal doctrine with profound political implications. The criminal law of the enemy represents a shift in the modern Western legal mindset due to its multiple effects on many different levels.
On this occasion, I want to discuss what this legal doctrine is. To do so, I’ll mention its historical antecedents, as well as those contributions that constituted it. In addition to this, I want to set forth several examples that will help understand its political dimension. That will show us this doctrine in motion and how it affects society. At the end of this episode, I’ll address the relationship between this set of legal guidelines and Carl Schmitt’s thought.
The criminal law of the enemy is a legal doctrine the German legal philosopher and professor in criminal law Günther Jakobs outlined in 1985. We also know this legal concept by the German word “Feindstrafrecht.” The core idea of this set of principles is that certain people are enemies of the State. As such, they don’t deserve the protections of the civil or penal law. The Feindstrafrecht advocates for the use of every available means to prosecute and punish those enemies.
It is important to stress that this doctrine is not a law, but a set of guidelines to address the prosecution of specific social groups in the application of criminal law. In this regard, it means the suspension of particular principles that inform the legal order in constitutional regimes with a long tradition in the rule of law. That also may include the suspension of certain laws to protect the State from specific threats. For this purpose, Jakobs proposed the term “Criminal Law of the Citizen,” also known as “Bürgerstrafrecht,” as the counterpart of the criminal law of the enemy. This law would apply in those situations in which normal citizens that don’t represent a threat to the State are involved in illegal activities.
Jakobs’ arguments lead to claim that those who break the law and the legal order of the State or try to subvert it should lose all rights as citizens and human beings. From his point of view, a person is who shows unconditional loyalty to the legal order. In these cases, the individual has the right to be considered a person. Otherwise, they would deserve other treatment from authorities by applying a specific set of rules devised for those who represent a danger for the State.
So, the State should be allowed to prosecute these individuals with all available means. Insofar as you become an enemy of the State, you stop having rights, and the legal order doesn’t protect you anymore. Rather than that, the State considers you as “unperson” who doesn’t deserve to be treated as a citizen. That entails a clear and different definition of citizen. Given this doctrine, a citizen supports the law and adjusts their behavior to the legal order. If the individual wouldn’t admit that obligation and hold a citizenship status, they can’t enjoy the benefits of a person or citizen. That makes this individual an enemy of the State.
Jakobs backs his philosophical justification to hold this perspective on the Hobbesian social contract theory. In his opinion, whoever terminates that social contract by dishonoring it, leaves society and becomes part of the lawless natural state. In this case, the individual loses all rights as a person and turns into an enemy that the State must prosecute.
At this point, a question arises, and it is the purpose of the punishment in the context of this legal doctrine. In normal circumstances, when an ordinary citizen breaks the law, the penalty is compensation. However, when we talk about someone considered an enemy of the State, the punishment intends to protect safety.
The consequences of this doctrine have many ramifications. Despite that, we can highlight its most critical effects on the political and constitutional order of Western countries.
One of these consequences is the break of the principle of equality under the law. No matter what you may have done. Rather than your behavior, what really matters is your identity. If authorities consider you a threat to the State, they will apply a set of legal principles devised for people like you. That may involve special laws and courts. Therefore, in these situations, we witness how the same crime involves different punishments depending on who committed it.
Another consequence is the arbitrary and insecurity this doctrine imposes in legal terms. That’s quite clear when this guideline vests the authority with vast discretional powers in law enforcement activity. As a result, it’s up to judges to determine who is a threat to the State, and who doesn’t deserve to be treated as a person. In these circumstances, any defendant has no legal guarantee insofar as they don’t know what to expect from the judiciary. Indeed, anyone who ends on trial lacks the usual legal protections and the required safeguards for a fair process. Furthermore, in these cases, it’s typical to see how the presumption of innocence becomes a dead letter because the court doesn’t indict the defendant for a crime but their identity.
In addition to this, I have to mention the break of the rule of law, a fundamental legal principle in Western countries. That’s obvious when arbitrary prevails in courts, and it doesn’t matter if you committed or not a crime because the sentence depends on the will of the judge, and not necessarily on laws. So, the judge determines if the laws in force work for you or not. In these cases, we witness how the principle of exception permeates the judicial system.
Among the political implications of this legal doctrine, I want to stress how useful it is to repress dissenters. It represents a serious threat to freedom and individual rights because it enables the authority to decide who poses a danger for the State. Hence, no matter your behavior but your identity as a real threat to the State, and it has the right to prosecute and treat you as a public enemy. The State strips you of your humanity, and it can use all means available to punish you.
I want to start this section by mentioning some historical antecedents that, in many different ways, resemble this doctrine. One of them is the rules of Germanic peoples in the Medieval Age. They applied this doctrine. However, we have a much better example during the Ancien Régime in most Western countries. During this era, the society organized in different estates. There was no standard legal frame but a set of different rules that were in force. The application of these rules depended on the person who was on trial. In this regard, it was more important the identity of the defendant than the crime. For this reason, people didn’t receive the same treatment. There were different rules and courts, depending on the social status of the defendant. Consequently, there were different punishments for the same crimes.
More recently, we have the notorious example of the Nazi regime. In this case, those who authorities considered the vermin of the people were treated as anything else but humans and imprisoned at will by the Gestapo.
Due to the blatant dictatorial measures of this regime, Nazis set up a special court named the People’s Court to operate outside the constitutional frame of law. In this way, they established a state of exception in the legal field. This court had jurisdiction over a rather broad array of offenses, and it was used for prosecuting those who were considered enemies of the State. That allowed Nazis to indict any political opposition. Defendants didn’t have judicial guarantees under the jurisdiction of this court, such as the presumption of innocence. What mattered here was their status as enemies of the State regardless of their behavior.
There are even more recent examples. That is the case of the Spanish judge Baltasar Garzón of the National Court. He assumed the Jakobs’ doctrine and used it to prosecute political dissenters by accusing them of terrorism. That allowed him to shut down the Basque journal “Egin” without trial. Furthermore, he ordered to take to prison many people by resorting to this doctrine. Aside from that, he dismissed several cases of torture of people under arrest in his custody. He openly admitted he followed the guideline of this legal doctrine because he considered these people a threat to the constitutional system. Therefore, they didn’t need the protection of the judicial order.
That’s not the only case in Spain. I want to mention one more. I refer to the recent approval of the gender violence law. This bill has its inspiration in the most radical version of the feminist ideology. The most significant aspect of this law is how it broke the principle of equality under the law, and introduced the criminal law of the enemy doctrine. It would take too much time to discuss this point as it deserves, so I’m going to sum it up for the current discussion.
This ideology based its arguments on passing this bill on the biased assumption of gender violence. So, this kind of violence is unidirectional and always takes place within straight couples. It’s violence against women because men are violent gender. This argument paved the way for the approval of this bill. As a result, it set up special courts that many people don’t hesitate to call extraordinary courts or exception courts because their jurisdiction is gender violence, and anything related to this law. Moreover, this law has involved the suppression of the presumption of innocence of the defendant. Many judicial guarantees vanished in the jurisdiction of this law.
In general, this law has broken the principle of equality under the law by establishing special punishments for men, who became a public enemy. If a man and a woman commit the same crime, different courts prosecute them. Also, they apply separate legislation, which means different punishments. So, what matters here is not the crime itself, but the identity of the offender.
Another example is the US in the war on terror. In this case, the introduction of the figure of unlawful combatant status is remarkable insofar as it turns out to be the identification of the government’s public enemy. Therefore, the legal order doesn’t apply to these individuals who are public enemies. Guantanamo illustrates this situation very well insofar as it represents a legal limbo in which the US legislation doesn’t work as in its national territory. Furthermore, this practice also involves the elimination of protections, such as the Geneva Conventions.
What is the connection between Carl Schmitt and the criminal law of the enemy devised by Günther Jakobs? As I commented on another occasion, the distinction between friend and enemy is crucial in Schmitt’s thought.
Schmitt considered the identification of the enemy as the essence of the political. In this respect, he argued that the sovereignty of a political community depends on that distinction. So, sovereignty rests on that capacity to define who the enemy is. In that way, the State decides who an existential threat is. It represents a declaration by which the State determines who the public enemy is and has to be prosecuted. In legal terms, it may involve the prohibition of someone because of its identity. Don’t forget that the distinction between friend and enemy depends on the existence of identities that negate your own identity.
However, Schmitt’s theories also link with this legal doctrine through another important concept for this author. I refer to the state of exception in which the authority suspends legal constraints to face successfully a threat for its existence. The identification of the public enemy may involve the declaration of this exceptional measure. In these cases, the State confronts those who consider its enemies without any legal limitation to its power. Indeed, it entails the expansion of its powers. So, right doesn’t apply in the prosecution of State’s enemies, and they don’t have the legal protection they would have in normal circumstances.
In Schmitt’s thought, these concepts link with the break of the rule of law by vesting the State with extraordinary and expanded powers. In this way, it achieves discretional powers to indict those who are its enemies. It means a step into the arbitrary rule. Moreover, it includes the negation of the principle of equality under the law by suspending the legal order. That’s not all. I have to stress the development of special legislation to exclude from the legal order those who represent a threat to the State. This legislation makes them public enemies because of their condition. In this way, this legislation is enforced in those cases that involve enemies’ of the State. In general, everything aims at crushing any opposition.
Question of the day! What do you think is going to be the evolution of this legal doctrine in the future? Post your opinion in the comments section below, and I’ll check it out.
Bibliography used:
Schmitt, Carl, The Concept of the Political
Schmitt, Carl, On Dictatorship
Jakobs, Günther, Bürgerstrafrecht und Feindstrafrecht
Rei, Pepe, Garzón: La otra cara
Isikoff, Michael, “Memos Reveal War Crimes Warnings” in Newsweek, May 19 2004
Holtzman, Elizabeth, “Torture and Accountability” in The Nation, June 28 2005
McCool, Grant, “US Lawyers Warn Bush on War Crimes” in Global Policy Forum, January 28 2003
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