Policing and Humanitarianism in France: Immigration and the Turn to Law as State of Exception

Taking the issue of immigration in France as the entry point to a discussion of law and order, this essay examines what this focus on law and order masks: the manner in which law, in certain critical realms, operates according to the logic of exception, rather than as a regime of normative justice based on general rules and rights. Joining the renewed debate on Carl Schmitt's political theories while rejecting his larger political project, I suggest that the significance of this point is not primarily legal, but political. I locate my argument in the context of changing notions of both sovereignty and political power, suggesting that the situation in France constitutes just one instance of a larger struggle over sovereign power by national and transnational institutions. I focus on two specific and complementary spaces of what I have called ‘juridical indeterminacy’, each of which illustrates the enactment of this differently configured rule of law. These are policing and humanitarianism. In particular, I examine the policing of prostitutes, the phenomenon of detention centres, the Refugee Appeals Commission, and a humanitarian clause for undocumented immigrants who are gravely ill, to suggest that policing and humanitarianism represent two sides of the same coin – two essential elements of a moral economy in which law as a regime of systematic justice is not central, and where a democratic political realm has been displaced in favour of a regime of sovereign exceptions. Ultimately, this essay suggests that this logic of exceptionalism creates and privileges non-rights-bearing, apolitical, non-agentive victims. The underlying goal therefore is to point instead to the need for a more radical political project, one that sees a degree of legal regularity and predictability necessary to achieve the autonomous political action of a democratic society.