ENEMY COMBATANTS VERSUS ENEMY CRIMINAL LAW: AN INTRODUCTION TO THE EUROPEAN DEBATE REGARDING ENEMY CRIMINAL LAW AND

ITS RELEVANCE TO THE ANGLO-AMERICAN DISCUSSION ON THE LEGAL STATUS OF UNLAWFUL ENEMY COMBATANTS CARLOS GMEZ-JARA DEZ*

I.

INTRODUCTION THE EUROPEAN DEBATE REGARDING ENEMY CRIMINAL LAW This article deals with a concept that may seem quite foreign to American legal

scholars: so-called enemy criminal law or criminal law against enemies (Feindstrafrecht). However, the core of the concept was reflected in a 2002 Legal Times article whose title posed the following question: Wheres the difference between a criminal and an enemy?1. Moreover, in the aftermath of 9/11, numerous issues have been raised in the United States regarding the status of enemy combatants. The most pressing of these has been whether they should be considered prisoners of war, regular defendants in a domestic criminal case, or something altogether different. These issues raise broader and more fundamental questions, such as: what rights do (or should) enemy combatants have? It might even be asked whether they have any rights at all. In this vein, some have proposed that enemy combatants should be deprived of their constitutional and internationally acknowledged rights. This, as we will see, is the main theme of enemy criminal law. The paper will mostly refer to the positions espoused by the German law professor Gnther Jakobs, who is regarded as the founding father of the concept that we now refer to as enemy criminal law. In a nutshell, this scholar noted that in current Western legislations there are certain provisions that are not aimed at law-abiding
Associate Professor of Criminal Law (Universidad Autnoma de Madrid, Spain). See Legal Studies November 22, 2002. See also for an introduction George Fletcher, Rethinking Criminal Law. The Universal Part [available at: www.law.upenn.edu/fac/npersily/Fletcher.pdf ] 3.4 (stating that Criminal law against enemies seeks to get rid of or at least neutralize the offender).
1 *

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Electronic copy available at: http://ssrn.com/abstract=1097066

persons (that he generically termed as citizens), but to potential dangerous individuals (that he broadly identified as enemies). In the latter case, sanctions are not imposed retrospectively, i.e., punishing prior wrongdoing, but prospectively, i.e., preventing future harms. In this light, Jakobs identified three chief features of what he labeled as enemy criminal law; that is, criminal law directed against enemies: first, punishment comes well before an actual harm occurs; second, it contains disproportionate, i.e., extremely high, imprisonment sanctions; third, it suppresses procedural rights. Needless to say, all these features and tenets are exacerbated in case of terrorist offenses, which represent the highest expression of enemy criminal law. The situation in Guantnamo and the enemy combatants concept do not seem too far apart from the outline just presented on enemy criminal law. Surely, the European debate may seem foreign to some common law scholars, but it could be of use for a legal system, such as the American, that, as noted, has recently had to deal with difficult issues as to the procedural rights2 of enemy combatants. These represent the paradigmatic instances of application of enemy criminal law. Therefore, understanding the foundations of the European concept of enemy criminal law can shed some light on the issues generated by the American experience with enemy combatants. PRELIMINARY CONSIDERATIONS AND OVERVIEW OF THE ARGUMENT Throughout this article there are minimal references to national law provisions. This is not by chance. The logic behind this approach is to provide a theoretical discussion of these concepts regardless of where they appear. It would be too easy to dismiss the arguments at stake by resorting to the fact that different legislations prescribe different provisions. This is a worldwide debate and the arguments are equally universal. While some legal systems are more inclined towards adopting certain measures (European concerns are considered anachronistic by some, while the American approach has been branded as cowboy thinking by others), the broader jurisprudential debate remains.

2 Regarding the due process issues faced by the enemy combatant status see Tung Yin, Procedural Due Process to Determine Enemy Combatant Status in the War on Terrorism, 73 Tenn.L.Rev. (2006).

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Electronic copy available at: http://ssrn.com/abstract=1097066

To get a sense of the significance of the enemy criminal law debate in Europe, it should be noted that the distinction between a criminal law for citizens and a criminal law for enemies3 has provoked a heated discussion in current European legal scholarship4. From a strictly theoretical perspective, it may well be that the distinction between citizen and enemy criminal law implicitly embodies a kind of perverse logic5. On the one hand, distinctions cut the world in two, for they tend to polarize the world and every attempt to designate one side of the distinction inevitably means denying the other. On the other, distinctions are based on a foundational paradox. Whenever we try to secure one side of the distinction by resorting to the other side, we risk loosing precisely the side we are trying to secure. In other words, to the extent that the State uses enemy criminal law to secure citizen criminal law it risks the whole existence of the latter. To be sure, reassuring the basis or requirements of a system is certainly a delicate question because, among other things, at least from a systems theory perspective, the preconditions for a system to exist are precisely that: pre-conditions. That is, elements or conditions that are located beyond the systems boundaries

See GNTHER JAKOBS, ESTUDIOS DE DERECHO PENAL 293 (1997); Gnther Jakobs, Derecho penal del ciudadano y Derecho penal del enemigo, in: DERECHO PENAL DEL ENEMIGO 21, 57 (Gnther Jakobs and Manuel Cancio Meli eds., 2nd ed., 2006) [hereinafter Jakobs, Enemigo, supra note 3]; GNTHER JAKOBS, DOGMTICA DE DERECHO PENAL Y LA CONFIGURACIN NORMATIVA DE LA SOCIEDAD 42 (2004) [hereinafter Jakobs, Dogmtica, supra note 3]; GNTHER JAKOBS, STAATLICHE STRAFE. BEDEUTUNG UND ZWECK 40 (2004) [hereinafter Jakobs, Staatliche Strafe, supra note 3]; Gnther Jakobs, Derecho penal del enemigo? Un estudio acerca de los presupuestos de la juricidad in DERECHO PENAL DEL ENEMIGO. EL DISCURSO PENAL DE LA EXCLUSIN. VOLUMEN II, at 93 (Manuel Cancio Meli & Carlos Gmez-Jara Dez eds, 2006) [hereinafter, Jakobs, Presupuestos, supra note 3]. For an outline of Gnther Jakobs criminal law theory see Gnther Jakobs, Imputation in Criminal Law and the Conditions for Norm Validity, 7 Buff.Crim.L.Rev. 490 (2004). 4 For an introduction see contributions contained in DERECHO PENAL DEL ENEMIGO. EL DISCURSO PENAL DE LA EXCLUSIN (Manuel Cancio Meli & Carlos Gmez-Jara Dez eds., 2006) and BITTE BEWAHREN SIE RUHE. LEBEN IN FEINDRECHTSSTAAT (Thomas Uwer ed., 2006). See also the following works ALEJANDRO APONTE, KRIEG UND FEINDSTRAFRECHT. BERLEGUNGEN ZUM EFFIZIENTEN FEINDSTRAFRECHT ANHAND DER SITUATION IN KOLUMBIEN (2004); Manuel Cancio Meli, Derecho penal del enemigo? in DERECHO PENAL DEL ENEMIGO at 86 (Gnther Jakobs and Manuel Cancio Meli, 2nd ed. 2006); LUIS GRACIA MARTN, EL HORIZONTE DEL FINALISMO Y EL DERECHO PENAL DEL ENEMIGO (2005); FRANCISCO MUOZ CONDE, DE NUEVO SOBRE EL DERECHO PENAL DEL ENEMIGO (2005); MIGUEL POLAINO-ORTS, DERECHO PENAL DEL ENEMIGO. DESMITIFICACIN DE UN CONCEPTO (2006). 5 See generally on the logic of distinctions JOKISCH, LOGIK DER DISTINKTIONEN. ZUR PROTOLOGIK EINER THEORIE DER GESELLSCHAFT (1996). See also Luis Chiesa, Outsiders Looking In: The American Legal Discourse of Exclusion, forthcoming in Rutgers Journal of Law and Public Policy (exploring the implications of certain distinctions in the American Legal Discourse). In any event, the inclusion / exclusion distinction which the enemy / citizen criminal law distinction reflects, brings the powerful logic of exclusion into the scene (on the logic of exclusion see introductorily WILLIAM RASCH, NIKLAS LUHMANNS MODERNITY. THE PARADOXES OF DIFFERENTIATION at 108 (2000)).

located at the other side of the distinction and therefore its reassurance turns out to be not only impossible, but, even more, a risk to the systems existence. In light of these considerations, it will ultimately be argued in this article that enemy criminal law may not only fail to reassure citizen criminal law, but it may also pose a significant risk to the whole concept. I will do so in three parts. Part II of the article consists of an explanation of Jakobs analysis of the origins of enemy criminal law. This requires an examination of the factual grounding that normative constructions need in order to exist. In part III it will be noted that there is no way to secure this allegedly factual grounding and that this grounding offers no relevant information to the (normative) legal system. Finally, in Part IV I will argue that the only way to proceed with enemy criminal law is to insist in the citizenship status (presumption of law-abiding behavior) of its participants and to disregard the enemy status (factual dangerousness of enemies) of those considered threatening. To be sure, the aforementioned solution cannot secure the existence of the legal order, but it can indeed enable the criminal law to be coherent and fair. Moreover, if this prescription fails to achieve the desired effects, it will be due to external factors and not to its attempt to control them. II.- PHILOSOPHICAL
FOUNDATION OF

ENEMY CRIMINAL LAW:

THE

REAL

ANCHORAGE OF NORMATIVE CONSTRUCTIONS

1.- Describing, prescribing.or just explaining? At this stage of the debate on enemy criminal law, one thing seems quite clear: the description of enemy criminal law provided by Jakobs is accurate to a great extent. Criticism of the concept focuses on its legitimacy and prescriptive implications. In support of this conclusion it should be noted that various authors from different countries have confirmed the existence of current manifestations of enemy criminal law in modern society6. In addition, numerous recent academic contributions harshly
Regarding the current standing in Spain see Polaino-Orts, supra note 4 at 51; Moz Conde, supra note 4 at 39; in Germany Tatjana Hrnle, Deskriptive und normative Dimensionen des Begriffs Feindstrafrecht GA 80 (2006); Roland Hefendehl, Organisierte Kriminalitt als Begrndung fr ein Feind- oder Tterstrafrecht, StV 156 (2005); Michael Pawlik, 14 Abs. 3 des Luftsicherheitsgesetzes ein Tabubruch?, JZ 1045 (2004); Sinn, Ttung Unschuldiger auf Grund 14 III Luftsicherheitsgesetz
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criticize the prescriptive turn in Jakobs position (i.e. the radical change experienced from the first conception of enemy criminal law proposed by Jakobs in 1985 to the latter conception advanced in 20007). Due to the considerable length of the debate surrounding the question over whether enemy criminal law has a descriptive or prescriptive connotation8, it will bear more fruits to point out where the bulk of Jakobs analysis relies (at least, according to my understanding): not in the description, not in the prescription, but in the explanation. To be sure, the description provided by Jakobs represents a great contribution to legal scholarship and there is no doubt that a certain prescription exists in his grounding of enemy criminal law on the so-called right to security (Grundrecht auf Sicherheit). Yet, the strength of his theoretical construction derives from the powerful explanation it provides. The American reader surely needs further clarity in understanding the concept. Jakobs deserves some recognition for coining a concept (enemy criminal law) that aptly portrays certain significant features of current criminal law practices.9 This is particularly the case when one takes into account the fact that German scholars claim10 that their major contributions to criminal law theory include the systematization and categorization of the penal laws. Not surprisingly, even some of the theorists who disagree with Jakobs have recognized the important theoretical contribution that this conceptualization brings to the academic debate.11 In fact, if the features contained
rechtmssig?, NStZ 585 (2004)]; Aponte, supra note 2 at 305. In any event, every legal system with criminal provisions regarding organized crime, drug trafficking, illegal immigration or terrorism uses constantly enemy criminal law. 7 See Prittwitz, Derecho penal del enemigo Anlisis crtico o programa del Derecho penal?, in: LA POLTICA CRIMINAL EN EUROPA at 110 (Santiago Mir Puig et al eds., 2004); Ambos, Feindstrafrecht ZStR 1 (2006); Luis Greco, ber das so gennante Feindstrafrecht GA 96 (2006). In the opposite direction, i.e., no disruption between both positions of the German professor see Polaino-Orts, supra note 2 at 46-47. 8 Synthesizing the discussion see Hrnle, supra note 6. 9 Summarizing this point, main features of enemy criminal law are, as noted before, (1) punishing well in advance a harm is caused; (2) disproportionate, i.e., extremely high imprisonment sanctions (3) suppressing procedural rights. See Jakobs, Dogmtica, supra note 3, at 43; Cancio Meli, supra note 4 at 112 with further references. 10 To get a taste of this matter see Schnemanns asseverations in Bernd Schnemann, Ein Gespent geht um in Europa Brsseler Strafrechtspflege intra muros , GA 511 (2002) regarding the primacy of German systematic thinking over the functional approach of other traditions; see arguments against such considerations in Joachim Vogel, Europische Kriminalpolitik europische Strafrechtsdogmatik GA at 523 (2002). 11 See among others Bernd Schnemann, Feindstrafrecht ist kein Strafrecht in FESTSCHRIFT FR KAY NEHM 175 (Brandner et al ed., 2006); Ulfried Neumann, Feindstrafrecht in BITTE BEWAHREN SIE RUHE. LEBEN IN FEINDRECHTSSTAAT 299 (Thomas Uwer ed., 2006); FRIEDRICH SACK, FEINDSTRAFRECHT AUF DEM WEG ZU EINER ANDEREN KRIMINALPOLITIK (Transcript in file with the author, 2005); Albrecht, Krieg gegen den Terror Konsequenzen fr ein rechtsstaatliches Strafrecht 117 ZStW 855

within this category entail negative connotations12, even the name given to the concept was fortunate, for the mere reference to an enemy criminal law highlights the negative features of the concept. In short, even if some do not agree with Jakobs particular positions regarding enemy criminal law, most of European academia is in agreement that it is an important contribution to criminal law. However, although most scholars tend to credit the accuracy of Jakobs description of enemy criminal law, they typically move on to prescribe that enemy criminal law is illegitimate and should not exist13. Take, for example, the position of the Spanish scholar Manuel Cancio Melia, who recently contended that enemy criminal law is a contradiction in terms and that the truth is that the concept should not be considered

(2005); ALBRECHT, DAS NACH-PRVENTIVE STRAFRECHT: ABSCHIED VON RECHT (Transcript in file with the author, 2006). It should be noted that Schnemann has recently rectified his prior position as to the nature of enemy criminal law. At first he was of the opinion that criminal provisions had to do with citizens freedom and that criminal law distinguished between free citizens and societys enemies who should be imprisoned to a greater or lesser extent (Bernd Schnemann, Europische Haftbefehl und gegenseitige Anerkennung in Strafsachen ZRP 188 (2003); Bernd Schnemann, Die parlamentarische Gesetzgebung als Lakai von Brussel? Zum Entwurf des Europischen Haftbefehlgesetzes StV 120 (2003)). This was due to the fact that according to its nature and when dealing with imprisonment sanctions, criminal law is always enemy criminal law. Therefore we need the greatest guarantees available before enacting any such provisions [Schnemann, Haftbefehl, 188; Schnemann, Lakai, 120; see also Bernd Schnemann, Die deutsche Strafrechtswissenschaft nach der Jahrtausendwend GA 205 (2001)]. He went on to say that Jakobs distinction between enemy and citizen criminal fails to acknowledge that every offender is treated as an enemy of society and that greater sanctions for greater crimes always imply greater guarantees [Bernd Schnemann, Fortschritte und Fehltritte in der Europisierung der Strafrechtspflege, GA 201 fn. 49 (2004)]. Consequently he predicted that the enemy criminal law category was dangerous and doomed to failure [Bernd Schnemann, Das Strafrecht im Zeichen der Globalisierung GA 313 (2003)]. Yet, recently he stated [Schnemann, Feindstrafrecht, 176] that I have to acknowledge that after Jakobs in-depth analysis of the enemy criminal law concept, I do have to revise my prior opinion as to the non-sense of distinguishing between enemy and citizen criminal law. 12 The question as to whether the label enemy criminal law may be regarded as fortunate or unfortunate depends on how the concept is used: if it is used for describing a certain state of affairs of modern criminal legislation, then it seems adequate to assign to the concept a negative connotation so that every time the concept is used for describing a certain regulation, then immediately a negative meaning will appear for that concrete piece of legislation. To the contrary, if a certain legitimacy is sought within the concept, negative connotations are not welcome anymore. See Jakobs, Enemigo, supra note 3, at 22 (stating that the label enemy criminal law is not intended to be pejorative). Following the same thought see Michael Pawlik, Strafe oder Gefahrenbekmpfung? Die Prinzipien des deutschen internationalen Strafrechts vor der Forum der Straftheorie ZIS (2006) at 289 footnote 122; Polaino-Orts, supra note 4, at 95-96. We must, however, contend that what deserves some criticism is the link between a non-pejorative meaning of enemy criminal law and the right to security: Whoever does not provide sufficient cognitive reassurance of a law-abiding behavior, not only cannot expect to be treated as a person by the State, but the State itself should not treat him as such, because if it does so, the State would be harming the right to security to which other persons are entitled to. Hence it would be a terrible mistake to demonize what we are calling here enemy criminal law (Jakobs, Enemigo, supra note 3, at 22). 13 See the title of Eduardo Demetrios work: enemy criminal law should not exist: El Derecho penal del enemigo darft nicht sein. Sobre la ilegitimidad del llamado Derecho penal del enemigo y la idea de la seguridad in DERECHO PENAL DEL ENEMIGO. EL DISCURSO PENAL DE LA EXCLUSIN 473 (Manuel Cancio Meli & Carlos Gmez-Jara Dez eds., 2006).

part of the law14. At this point, it would be a good idea to mention the prescriptive connotation of Jakobs formulation. When refuting Cancios argument, Jakobs affirmed that enemy criminal law is indeed law, given the fact that it is based on the right to security to which citizens are entitled15. Thus, Jakobs appears to believe that making use of enemy criminal law is a right of the citizens who face the enemy, 16 insofar as it may contribute to guaranteeing their right to security. Yet, as noted before, I believe that the importance of the concept of enemy criminal law does not lie in the fact that it is grounded on a right to security, but on the fact that it provides an explanation as to why enemy criminal law exists, and moreover, why it will continue to exist. The reader should keep in mind that heated discussions regarding different aspects of enemy criminal law are still taking place, but the argument that the enemy criminal law does not even exist fails to explain why it does, as a matter of fact, exist. Of course, once we acknowledge that enemy criminal law does exist, the separate and distinct issue of whether the concept of enemy criminal law should exist arises. Professor Jakobs provides an argument in favor of the continued existence and necessity of enemy criminal law that is not typically addressed by most European scholars. The problem that Jakobs perceives, which typically goes unnoticed, is whether normative (legal) concepts need a real basis in the outside world in order to actually exist. In the remainder of this article I will attempt to examine this issue.

See Cancio Meli, supra note 4 at 89, 124. For an outline of Manuel Cancios criminal law theory see Manuel Cancio, Victim Behavior and Offender Liability: A European Perspective, 7 Buff.Crim.L.Rev. 512 (2004). In a similar sense Schnemann, Feindstrafrecht, supra note 11, at 175 (stating that enemy criminal law is by no means criminal law). In any case, it must be noted that Jakobs himself shows some doubts as to the question of whether enemy criminal law qualifies as law (see Jakobs, Dogmtica, supra note 3, at 43: Enemy criminal law follows different rules than a criminal law based on the State of Law and it is not clear yet whether the former reveals itself as truly law. Because of this he contends that the word law has two different meanings depending on whether it is used in citizen or enemy criminal law (see Jakobs, Enemigo, supra note 3, at 26]. The first step towards considering it is law is the fact that we are dealing with a certain rules-oriented- reaction and it is not merely spontaneous and disorderly (see Jakobs, Enemigo, supra note 3, at 24: enemy criminal law implies at least a behavior according to some rules, and not an spontaneous and disorderly conduct]. The second more relevant step is that enemy criminal law is based upon a fundamental right to security (Recht auf Sicherheit) that is acknowledged to regular citizens and generates the corresponding protection duty (Schutzpflicht) by the State. 15 See Jakobs, Presupuestos, supra note 3, at 114; further references to this question in Jakobs, Enemigo, supra note 3 at 33-34, 75. According to Jakobs We call law to a connection between persons holding rights and duties, whereas the relationship with an enemy is not determined by law, but by coercion. However, law is always linked to the authorization to use coercion being Criminal Law the strongest coercion. Therefore, one could argue that every single criminal sanction, even every selfdefense, is directed towards an enemy. 16 Jakobs, Enemigo, supra note 3 at 34.

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II.2.- Requirements for a legal system to exist: cognitive reassurance of normative expectations Expressed in general terms, Jakobs arguments in favor of the existence of enemy criminal law is simply that every normative concept needs a certain factual underpinning in order to exist and not appear to be a mere illusion. In the field of criminal law, Jakobs argues that the link between criminal law rules and the real world is provided by the cognitive reassurance of normative expectations. According to Jakobs, this means that in order for a legal order to be a real legal system and not merely a theoretical or imaginary one, people have to take the legal system seriously and in general terms comply with it. In order for this to happen, people have to perceive that other individuals abide by the law, for if everyone were to disobey the law, presumably no one will comply with the law. This is not to say that everyone has to comply with the law, but rather that, generally, people must abide by it. It is evident that people themselves must supply the cognitive reassurance. Otherwise expressed, as long as individuals supply cognitive reassurance, normative legal constructions will really exist. If not, legal constructions will be just be thoughts in an ideal world. The issue at stake here is not banal. It has to do with the very existence of concepts such as the state or the legal system. What would happen if individuals constantly infringe the rules of the legal system and therefore calling into question its existence? Jakobs suggests that the legal system would succumb17. II.3.- This is Not the first time - Law & Philosophy Outlines ROUSSEAU AND FICHTE In the present section I will examine Jakobs interpretation of certain influential philosophical theories in order to demonstrate how his conception of enemy criminal
Jakobs, Enemigo, supra note 3, at 42: what must be done against terrorist if we do not want to succumb. In a similar way SILVA SNCHEZ, LA EXPANSIN DEL DERECHO PENAL at 163 (2nd ed., 2001) states: they threat to undermine the foundations of our society and our State. The American reader will surely identify in this matter the heated discussion taking place as to whether the Constitution may be regarded as a suicide pact or not (see, among others, Saikrishna Prakash, The Constitution as Suicide Pact, 79 Notre Dame L. Rev. 1299 (2004); RICHARD POSNER, NOT A SUICIDE PACT. THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY (2006); and Coles review in David Cole, The Poverty of Posners Pragmatism: Balancing Away Liberty after 9/11, 59 Stan. L. Rev. 1735 (2007) ).
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law as a tool that is used to fight against threats from enemies, not citizens, dovetails with the conceptual constructs of such theories. Some social contract theorists propose that when a criminal commits a crime he breaches a contract and, therefore, he cannot participate from its benefits (i.e., from that point on, he no longer has a legal connection with other people). Rousseau18 states that every single wrongdoer who attacks a social right is no longer a member of the State, because he is in war against it, as the criminal sanction imposed on the wrongdoer demonstrates. The consequence that follows is that the guilty offender is killed (or harmed) more often as an enemy than as a citizen. In a similar way, Fichte states that whoever voluntarily or negligently abandons the societal contract regarding an issue in which we are counting with his prudence, loses all of his rights as a citizen and as a human being and enters into a situation in which he lacks all rights19. Fichte usually softens such a civil death by constructing a penitence contract, but never in cases of willful and premeditated murder. Here the withdrawal of rights remains: the convicted murderer is treated as a thing, as a dangerous animal. Fichte then goes on to lucidly state that given the lack of personality of the criminal, executing him is not a criminal sanction, but only a means of security. We do not have to go into more detail in order to demonstrate that citizenship and personhood, according to the above-mentioned theorists, is something that can actually be lost. Rousseaus and Fichtes constructions make a radical separation between citizens and criminals. On the one side you have enemies and wrongdoing, on the other you have citizens and the law. However, Jakobs contends that a legal system should include criminals within the law for two reasons. First, the offender has the right to make peace with society once again. For this to happen, he needs to maintain his citizen status. Second, the offender has the duty to repair the inflicted harm, and duties presuppose the existence of personhood. In other words, the offender cannot abandon his societal responsibilities by way of his actions.

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JEAN JACQUES ROSSEAU, THE SOCIAL CONTRACT [1762], (2007). JOHANN GOTTLIEB FICHTE, FOUNDATIONS OF NATURAL RIGHT [(2000).

HOBBES AND KANT Hobbes was also aware of this situation and provided a more accurate description of the issues. Although he is nominally also a social contract theorist, in the end he is more a philosopher of institutions. The submission contract, which for him appears as submission through force, should not be understood as a contract. In reality, it should be understood by way of the the following metaphor: (future) citizens should not disturb the State in its way to self-organization. In correspondence with this, Hobbes generally leaves the offenders citizen status intact (i.e., the citizen himself cannot eliminate his status). However, the situation is somehow different when we are dealing with rebellion, that is, with high treason, because the nature of this offense consists of the renouncing of subjection, which is a relapse into the condition of war commonly called rebellion. For him, those that offend in such a manner should suffer not as subjects, but as enemies20. For Rousseau and Fichte, every single criminal is an enemy per se; for Hobbes it appears that only the criminal who commits high treason shares that fate. According to Jakobs, the matter can be clarified by making reference to Immanuel Kants writings. Kant, another social contract theorist, locates the problem in the transition from the (fictitious) state of nature to the State. In Kants construction every person has the right to oblige any other person to enter into a citizen constitution21. Immediately the following question arises: What does Kant tell us about those who do not obey the law? In a long footnote of his essay titled Perpetual Peace22 he deals with the problem concerning when it is actually legitimate to proceed in a hostile manner against a human being. He states that man (or the people) in the state of nature deprives me of this security and injures me, if he is near me, by this mere status of his, even though he does not injure me actively (facto); he does so by the lawlessness of his condition (statu iniusto) which constantly threatens me. Therefore, I can compel him either to enter with me into a state of civil law or to remove himself from my neighborhood23. Consequently, whoever does not participate in a legal (mutual) estate must leave, (i.e., he is expelled). In any case he or she must not be treated as a person, but can be treated,
THOMAS HOBBES, LEVIATHAN, Chapter 28 [1651] (1982). IMMANUEL KANT, THE METAPHYSICS OF MORALS (1996) 22 IMMANUEL KANT, PERPETUAL PEACE [1795] (2007). 23 Id., at 25.
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as Kant expressly notes, as an enemy: and unless this security is pledged to each by his neighbor (a thing that can only occur in a civil state), each may treat his neighbor, from whom he demands this security, as an enemy24. Therefore, according to Kants view, we cannot treat someone who threatens us constantly and does not wish to join us in a citizen-estate as a person. In a similar way, Hobbes depersonalizes a criminal guilty of treason, as he also negates the existing constitution. Therefore Hobbes and Kant acknowledge a citizen criminal law against people who do not commit crimes constantly and an enemy criminal law against those who deviate from the existing guidelines. The latter are excluded from citizenship, while the former keep their citizen status. Citizen criminal law is law regarding the offender, as he remains a person. However, enemy criminal law has a different meaning. It is grounded on the States right to provide itself with security against those individuals that commit crimes time and time again and on the rights of citizens to demand that the State adopt the necessary measures to guarantee their right to security25. This right is used by Hobbes to both found and limit State power. However, for Hobbes, the person who commits high treason does not enjoy such rights. This holds true for Kant as well, at least regarding individuals who are permanently threatening everyone. We are dealing here with the rights of other people; that is, citizen criminal law is persons law / right. However, as we stated before, enemy criminal law is the law of those who march against the enemy; for the enemy it is sheer violence, reaching the level of war. Thus, citizen criminal law validates norms and community values; enemy criminal law (including: preventive and probation measures) fights dangers.

Id., at 13. For a US perspective on this matter see Emanuel Gross, Thwarting terrorists acts by attacking the perpetrators or their commanders as an act of self-defense: human rights versus the States duty to protect its citizen, 15 Temp. Int' l & Comp. L.J. 195 (2001). It should be noted that deep down inside enemy criminal law is actually a State mechanism of self-protection and daily practices just confirms this insight. Nonetheless two nuances: first, the paradox entailed in enemy criminal law reflects the paradox of a State willing to secure its own existence through enemy criminal law though actually starting to threat its very own existence. Second, Jakobs does not pretend to secure legal constructions per se, but only to the extent that these legal constructions provide guidance for the people. Put it otherwise: enemy criminal law does not appear in a society in which no individual obeys the law, but in those societies in which some comply with it and others are really careless about it.
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CITIZEN CRIMINAL LAW IS DIRECTED TOWARDS PERSONS WHILE ENEMY CRIMINAL LAW IS DIRECTED AGAINST NON-PERSONS In short, individuals who do not provide this minimum of cognitive reassurance (i.e. who do not generally abide by the rules) do not have access to the rights and duties that typically attach to those that do. Therein lies the reason why enemy criminal law is not directed towards persons these, by definition, do provide the cognitive reassurance but rather to those individuals who do not recognize the validity of the legal system. Put simply, to the extent that individuals do not provide this minimum level of cognitive reassurance, the legal system does not recognize them as persons (law abiding citizens) , but as sources of danger: in a nutshell, as enemies. Therefore, from the enemies perspective, the penal system does not impose punishments, but sheer coercive measures and yet, from the citizens perspective, those penalties are indeed deserved by the enemies. When using enemy criminal law, society does not speak with its citizens, but fight against its enemies26. Furthermore, they do so through sanctions and discourses that citizens have a right to use. This, however, leaves the important question of obedience to law unattended. This is definitely a question that one would expect a legal system to answer positively (i.e. that there is an obligation to obey law). Otherwise, the law would collapse into itself. On the other hand, there are borderline cases and exceptions (the right of resistance!)27. Nonetheless, as long as the right to resistance is conceived of as an exception, everything should be all right. People must obey the law in general terms. As long as exceptions are indeed only exceptions, then the legal system survives. Yet, a different perspective appears when the legal system as a whole is permanently questioned. It is at this point that enemy criminal law comes into play. II.3.- Meaning and goal of State penal sanctions It is not hard to see that the abovementioned considerations imply a certain concept of what punishment means. Indeed, punishment turns out to be a bivalent instrument with two highly differentiated instances of application: one based in a
26 27

Jakobs, Dogmtica, supra note 3, at 43. NIKLAS LUHMANN, LAW AS A SOCIAL SYSTEM, at 54 (2004).

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discursive logic (the State speaks to its citizens) the other in a coercive logic (the State fights against its enemies). Therefore, when dealing with enemy criminal law it must always be kept in mind that the theory drastically affects the concept of state sanctioned punishment. In order to fully understand the vast implications of this concept, a thorough analysis of the different perspectives at stake must be conducted. Though not a major issue in the United States, this issue has drawn a considerable amount of attention in Europe and is thus deserving of discussion. SYMBOLIC AND PHYSICAL ASPECTS OF STATE-SANCTIONED PUNISHMENT The key element in this discussion is the so-called materialization of penal sanctioning. In order to understand this, one must acknowledge that both the offenders act and the states reaction have symbolic and physical aspects. In order to grasp the interplay of the symbolic and physical aspects of the offenders act, take, for example, a case of murder. The offender, through his behavior, not only means to commit a criminal act, but actually performs the act by killing someone. By doing this, not only does the offender call into question the legal norm stating that human life should not be taken, but actually takes human life as well. Two different aspects of the action are at play here. The first takes place at the symbolic level, for the action signifies or means a calling into question of the norm protecting human life. The second aspect takes place at the real world physical level, for the offenders action actually entails the destruction of human life. In a similar manner, state sanctioned punishment also has two levels: (1) the declaration of wrongdoing and condemnation, and (2) the actual infliction of pain. If state sanctioned punishment only remained at the symbolic level - issuing a court ruling stating that the offenders action was wrong, for example - something would be missing. There would be a lack of materialization compared to what the criminals actions meant and caused. For this reason penal sanctioning must perform at both levels28: symbolic (declaration of the wrongfulness of the act) and physical (infliction of pain). As Jakobs has stated, [t]o the same extent that the offenders actions permanently transform the
Another way to express this thinking is to refer to a meaning dimension and a nature dimension. In any case, this second dimension consists basically of indications about nature, and not nature itself. Every communication takes place in the meaning dimension, .i.e., meaning is the means for every communication . Nature dimension is only a meaning dimension about nature.
28

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real world, the reaction to those actions must permanently transform the same world. This actually implies that the reaction to the offenders actions has to make it effectively impossible to link latter behaviors to the prior conduct. In this way the reaction will also be permanent in the real world29. The permanency in the real world is the second materialization of punishment, although not understood psychologically, but normatively: the pain embedded in the penal sanction directed towards the offender, () means that no one should do the same thing30. More recently, however, Jakobs has gone a step further and reconceptualized an element closely related to enemy criminal law: the so-called penal pain (Strafschmerz). In this sense, the pain produced by penal sanctions serves the purpose of cognitively reassuring the validity of the norm; that is the goal of penal sanctions, to the extent that contradicting the denial of that same validity by the offender represents its meaning31. Thus, although penal pain (the pain that the imposition of punishment entails) does carry a certain symbolic meaning32, the final and fundamental point is that it represents an additional way to reassure the real existence of the law in general and legal rules in particular33. Thus, the purpose of penal pain is to reassure or strengthen cognitively normative expectations, so that whoever has no normative reasons to comply with the law (does not provide that minimum of cognitive reassurance), certainly has a cognitive reason to provide it - that penal sanctions hurt34. Both components, symbolic and physical, are thus present in every penal sanction, so that every person is treated, at least theoretically, as a citizen (meaning) and as an enemy (goal). The difference would lie in the fact that for a law-abiding citizen, it would be enough to consider that, because of the penal sanction, what a criminal did

Normativizacin, supra note 31]. 30 Jakobs, Dogmtica, supra note 3, at 43; GNTHER JAKOBS, NORM, PERSON GESELLSCHAFT 105 (2nd ed., 1999). This issue has been thoroughly developed in recent times [see Jakobs, Normativizacin, supra note 30 at 52; Jakobs, supra note 17 at 251, 259; Jakobs, Staatliche Strafe, supra note 3, at 5, 24, 31, 39]. 31 Jakobs, Staatliche Strafe, supra note 3, at 29. Put it differently: a penal sanction is contradiction and inflicting pain; and the measure of this pain is determined by what is needed by the norm infringed (see Jakobs, Enemigo, supra note 3, at 69-70). 32 Jakobs, Staatliche Strafe, supra note 3, at 26. 33 Jakobs, Staatliche Strafe, supra note 3, 24-30. 34 Jakobs, Staatliche Strafe, supra note 3, at 28-29.

GNTHER JAKOBS, SOBRE LA TEORA DE LA PENA at 25-26 LA NORMATIVIZACIN DEL A DOGMTICA JURDICO-PENAL at

29

(1998); GNTHER JAKOBS, SOBRE 52 (2003) [hereinafter Jakobs,

14

was wrong35. Yet, that is not the case for adversaries whose attitude is by principle hostile and are indeed extremely active in their disobedience, because here we have to compensate an already existing deficit on cognitive security36.

III. CRITICISM OF THE THEORETICAL FOUNDATION OF ENEMY CRIMINAL LAW

III.1.- Introduction OVERVIEW OF THE CRITIQUE Up to this point we have concluded that enemy criminal law exists as a way to contribute to the existence of citizen criminal law. In short, only to the extent that a legal system has an enemy criminal law will the existence of citizen criminal law be secured. In other words, enemy criminal law reassures what is necessary for citizen criminal law to exist: a minimum of cognitive mental disposition to comply with the law. Moreover, that reassurance is not provided through reason, but by means of coercion and physical violence. This is why every penal sanction must actually hurt (penal pain). In the rest of the article I will try to make a small though important point with regards to the above-mentioned contention. Assuming that enemy criminal law is based on the attempt to secure the (cognitive) requirements for the legal system to exist, I believe that it is not true that it can actually secure them. Moreover, when it tries to secure citizen criminal law, it may achieve the contrary. In other words, I will try to show that assuming that this is actually the logic of enemy criminal law, from a systems theory point of view this logic is certainly wrong.

35 36

Jakobs, Enemigo, supra note 3, at 70. Jakobs, Enemigo, supra note 3, at 70.

15

WHY SYSTEMS THEORY? The reader may question my decision to use systems theory as a vehicle to analyze these issues. The reason for this decision is quite straight forward. If there is a theory in the 20th century that has explored the conditions for systems of all kinds to exist, it is systems theory. The extensive analysis provided by many of the advocates of system theory have helped to elaborate accounts and highly technical insights regarding the main features and elements of all kinds of systems (biological, psychological, social). Thus, it should come as no surprise that system theory is also an apt vehicle with which to examine criminal law in general and enemy and citizen criminal law in particular. In the late twentieth century, German philosopher and sociologist Niklas Luhmann applied autopoietic (self-produced) system theory to social systems and thereby developed one of the most profound and complex theories of how social systems actually function. This approach provides us with a great instrument to test the results obtained from the enemy criminal law thesis. Of course, the aim of this analysis is not to assert that this should be the only theory with which to examine the feasibility of Jakobs conception of enemy criminal law. The main objective is to compare and contrast Jakobs contentions with those that would flow from an analysis of enemy criminal law grounded on systems theory, which is a theory that has long been used to study and research the constitution of social systems in general, and of the legal system in particular. Finally, to the same extent that according to Jakobs the link between enemy criminal law and the concept of penal sanctioning implies a certain perception of what penal pain is, the position that I will advance in the following sections provides us with an alternative conception of penal pain. As it will be noted, penal pain is certainly real, but, from a normative (i.e. strictly legal) perspective, that fact is an irrelevant per se piece of information. Only the communicative meaning of penal pain has normative relevance, not its actual physical infliction. In this way we may conceive penal sanctioning in a manner that affords a better understanding of modern society and its rationality.

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III.2.- The impossibility of securing the requirements of the system COMMUNICATION AND CONSCIOUSNESS I now wish to reformulate the foundations of enemy criminal law in systems theory terms. In systems theory terms, in order for communication (i.e., normative expectations) to exist there must be some consciousness (i.e. cognitive reassurance) support. The uncovered truth here is that depending on what we mean by the term cognitive reassurance we will be using an argument consistent with systems theory or inconsistent with that theory. In my opinion, Jakobs understanding of the concept seem to support the latter conclusion 37. Conceivably, the undergirding foundation of enemy criminal law is that cognitive reassurance (i.e. consciousness) basically consists of a minimum of compliance with the law. Only to the extent that the consciousness abides by the law, normative expectations (i.e. communication) will exist. This position, however, implies a direct intervention of consciousness in communication. In other words, the content of communication depends on the content of the consciousness. There are a number of theories that provide certain support for that argument, but systems theory is certainly not one of them. This is due to the fact that, according to systems theory, the content of communication is independent from the content of consciousness and vice-versa 38.

For an in-depth analysis of the relationship between Jakobs and Luhmanns theories see Carlos Gmez-Jara Dez, Teora de sistemas y Derecho penal: culpabilidad y pena en una teora constructivista del Derecho penal in: TEORA DE SISTEMAS Y DERECHO PENAL 386 (Carlos Gmez-Jara Dez ed., 2005). 38 Regarding the independence of the consciousness autopoiesis and communication autopoiesis see NIKLAS LUHMANN, THEORIES OF DISTINCTION. REDESCRIBING THE DESCRIPTIONS OF MODERNITY 169 (William Rasch ed., 2002) [hereinafter Luhmann, Theories, supra note 40]; LUHMANN, SOZIOLOGISCHE AUFKLRUNG. VOLUMEN VI at 12, 25, 37 (1995). Nonetheless we must bear in mind that the revolutionary thesis of Niklas Luhmann was not to hold the self-referentiality of consciousness [see in neuropsychology Gerhard Roth, Gehirn und Selbstorganisation in SELBSTORGANISATION. ASPEKTE EINER WISSENSCHAFTLICHEN REVOLUTION 167 (Krohn & Kppers ed., 1990); Gerhard Roth, Selbstorganistion Selbsterhaltung Selbstreferentialitt in: SELBSTORGANISATION. ZUR ENTSTEHUNG VON ORDNUNG IN NATUR UND GESELLSCHAFT 149 (Dress, Hendrichs & Kppers ed., 1986)], but that communication is also self-referential (see Niklas Luhmann, Theories, at 155 stating that only communication can communicate and that what we understand as action can be generated only in such a network of communication; NIKLAS LUHMANN, SOZIOLOGISCHE AUFKLRUNG. VOLUMEN VI at 113 (1995) [hereinafter Luhmann, Soziologische Aufklrung, supra note 40]. See also MERTEN, KOMMUNIKATION: EIN BEGRIFFS- UND PROZE ANALYSE (1977).

37

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In this sense, it is useful to recall that, according to the constructivist epistemology, law and human beings are two different autopoietic systems that do not depend on each other. The former is a social system based on communication39 and the latter is a psychological system based on the consciousness. Since the 1950s, systems theory has been affirming that autopoietic systems are open to energy, but closed to information40. Hence, and concentrating on the specific subject at hand, consciousness only provides energy to communication systems, enabling communication to happen. It can, however, never determine nor provide the content of communication41. At this point it would be helpful to make use of the following well-known example regarding the interrelation between two autopoietic systems: to the same extent that nerve cells (biological system) do not determine the content of consciousness (psychological system), neither can consciousness determine the content of communication (social system)42. THE INCAPACITY FOR AUTOPOIETIC SYSTEMS TO SECURE THE CONDITIONS
OF THEIR OWN EXISTENCE

These considerations are extremely important, as we are dealing with the conditions for an autopoietic system to exist43. The crux of the matter is that an
39 For profound analysis of law as an autopoietic social system see Luhmann, Law, supra note 29; Niklas Luhmann, Law as a social system 83 NWULR 136; GUNTHER TEUBNER, LAW AS AN AUTOPOIETIC SYSTEM (1993). 40 Famous phrase by the mathematician and cybernetician WILLIAM R. ASHBY, INTRODUCTION TO CYBERNETICS at 4 (1956). This was the environment contains no information for the system (see HEINZ V. FOERSTER, OBSERVING SYSTEMS (1981: the environment is the way it is). 41 This does not imply that there is no mutual irritation between them. It actually takes places through structural couplings. Regarding the structural coupling between consciousness and communication see Niklas Luhmann, Theories, supra note 40, at 163; NIKLAS LUHMANN, DIE WISSENSCHAFT DER GESELLSCHAFT 11 (1990); Luhmann, Soziologische Aufklrung, supra note 40 at 37; Dirk Baecker, Die Unterscheidung zwischen Kommunikation und Bewusstsein in EMERGENZ: DIE ENTSTEHUNG VON ORDNUNG, ORGANISATION UND BEDEUTUNG 217 (Krohn & Kppers ed., 1992)]. Yet, the content of communication will never be determined by consciousness. To be sure, the concept of structural coupling implies that none of them may contribute to the autopoietic operation of the other system. When we are using the concept of structural coupling to describe the relationship between conscious systems and communication system, we are assuring that those systems operate totally independent from each other [Luhmann, Soziologische Aufklrung, supra note 40 at 32]. 42 It is quite obvious that both systems (psychological and social) cannot exist nor operate without the other. But it holds equally true for many other requirements: life autopoiesis regarding physical and chemical conditions on which life depends (see Luhmann, Soziologische Aufklrung, supra note 40 at 31). 43 The legal systems function is to secure normative expectations [see Luhmann, Law, supra note 29, 142; Expectation (..) does not refer to an actual state of consciousness of a given individual

18

autopoietic system cannot secure the conditions of its own existence. Instead, it has to presuppose them. Consciousness needs nerve cells to exist, but these cells cannot determine the content of consciousness. In other words, communication needs consciousness to exist, but consciousness cannot determine the content of communication. In the context of the discussion surrounding enemy criminal law, while it is true that communication depends on consciousness in order to exist, the dependence has nothing to do with cognitive reassurance in the sense of a predisposition for law compliance. It has to do solely and exclusively with providing the necessary energy and irritation (without information) for the survival of the social system44. Up to this point we have been using some systems theory lingo that could be regarded as complicated, maybe even obscure. Yet, the same reasoning has been magisterially employed by Ernst-Wolfgang Bckenfrde, a renowned German constitutional law professor, in the context of the problem regarding the constitution of the rule of law, which, needless to say, is closely related with the dichotomy of enemy and citizen criminal law. According to Bckenfrde, the rule of law lives from conditions that the rule of law itself cannot secure45. This is even more true today, given the overcoming of the concept of Nation-State, the dismantling of the Welfare State during the 20th Century and the emergence of Global Governance regimes throughout the 21st Century46. In sum, what Bckenfrdes is trying to convey is that criminal law
human being but to the temporal aspect of the meaning of communication (at 143). Previous Jakobs statements, however, are not consistent with this thinking and basically refer to a minimum cognitive performance on the part of the individual to acknowledge him a persona status. In case such a minimum is not performed by the individual, she will not be recognized as a person and enemy criminal law will come into play. Hence, enemy criminal law consists more in the normative reassurance of cognitive expectations or to put it differently: it is sheer coercion and violence (see Jakobs, Enemigo, supra note 3, at 34). 44 In this sense NIKLAS LUHMANN, DIE GESELLSCHAFT DER GESELLSCHAFT at 102 (1997) states that systems presuppose a continuity of mater or energy in which the boundaries of the system do not appear. Clearly, the concept of structural coupling implies a certain irritation between systems; moreover, communication depends upon those consciousness irritations. But it does not imply that the content of consciousness may determine the content of communication. 45 ERNST W. BCKENFRDE, STATE, SOCIETY AND LIBERTY (1991) at 60 The liberal secular State lives from presumptions which it cannot itself guarantee. As a free state it only exists as long as the freedom which it grants to its citizens is regulated from the inside, out of the moral substance of the individual and the homogeneity of society. On the other hand it cannot warrant these regulative forces by its own authority, with the instruments of law and authoritarian command, without abandoning the principle of freedom, thus relapsing into a secularized version of the totalitarian demands it successfully overcame in the course of the confessional wars." 46 See NIKLAS LUHMANN, GESELLSCHAFTSTRUKTUR UND SEMANTIK. VOLUME IV at 101 (1995)). This evolution may be clearly tracked in Helmut Willkes impressive works: HELMUT WILLKE, ENTZAUBERUNG DES STAATES (1983); WILLKE, IRONIEE DES STAATES 11 (1992); WILLKE, SUPERVISIN DE STAATES at 9, 271 (1998) (highlighting the influence of Knowledge Society (Wissensgesellschaft));

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lives from conditions that the criminal law itself cannot secure, not even through the use of enemy criminal law. III.3.- Penal pain as a construction of the legal system A SYSTEMS THEORY CONCEPTION OF STATE-SANCTIONED PUNISHMENT AND PENAL PAIN In the previous section, I critiqued Jakobs conception of enemy criminal law from a systems theory perspective. In this section I will elucidate some of the consequences of my conception of enemy criminal law, especially those that have to do with the concept of penal sanctioning. If, as Jakobs has argued, the reason for inflicting penal pain rests in an attempt to strengthen cognitive reassurances, and if, as I argue, such a reassurance is untenable from a systems theory perspective, it follows that we need a different understanding of penal pain than the one espoused by Jakobs. Hence, although acknowledging Jakobs important contributions regarding the subject,47 I will proceed to clarify my contrary position, while admitting that this is by no means the only possible conception of enemy criminal law. First of all, I believe that, in accordance with Jakobs conception, the means used to punish are determined by the second aspect of penal sanctioning - the one taking place in the real world (i.e. physical pain) and not the first aspect - the communicative meaning of punishment for society48. I cannot agree with this approach given that I believe that the legal system is a system of communication49, and in such systems information can only be generated by the system itself. The outside world - the environment of the system - contains no information. There is absolutely no information transfer from the environment to the system. Therefore, there is no double materialization. An oral or written communication (of condemnation for a
WILLKE, ATOPIA 14 (2001); WILLKE, HETEROTOPIA 10, 76 (2003) (indicating the Global Governance characteristics as the symbol of the new world order). 47 See above II.3. 48 If a distinction between a formal and a material personhood is adopted (see Jakobs, supra note, 32 at 98) then the materialization does not takes place because of being a person in the material sense, but because remaining an individual in the formal sense (material humanity). The offender goes to prison because all in all he is an individual. See similar criticism displayed by HAUSCHILD, DIE POSITIVE GENERALPRVENTION UND DAS STRAFVERFAHREN at 140-141 (2000). 49 See Gmez-Jara Dez, supra note 39, at 402.

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wrongful act, for example) and serving time in prison (infliction of penal pain) are both forms of communications. However, these two share neither the same meaning nor the same communicative content. In other words, we are not dealing firstly with a communication (oral or written) and secondly with a materialization of the communication in the outside world. What we are dealing with are both communications and materializations of the outside world. Yet, the legal system, as a system of communication, is only concerned with the communication, not with the real world outside the system. The constructivist approach discussed here can be used to develop a particular conception of the communicative meaning of sanctioning by employing a theory of symbolic generalized communication means50. The first means of communication is language. Thanks to language, there is an opening of possibilities for understanding, which, paradoxically, increase the possibilities of neglecting communication. In order to increase the probabilities of successful communication, various symbolic generalized means of communication have been developed throughout the history of modern society. Bringing both premises together we may conclude that, through language, new possibilities of understanding are developed, which, in turn, through symbolic generalized means of communication, are translated into an increase of the successful probabilities of communication. Precisely because of this, such means of communication enable a highly improbable combination of selection and motivation51 . Yet, concepts like selection and motivation cannot be construed in a psychological way. These concepts do not indicate a certain state of mind, since they within communication by means of recursion52. According to this theory, penal sanctioning constitutes a way of increasing the possibilities of successfully communicating the message that we must comply with the are social constructions that assume the existence of certain conscious states. They are fulfilled

For the following reasoning see NIKLAS LUHMANN, ESSAYS ON SELF-REFERENCE 21 (1990); NIKLAS LUHMANN, MACHT 4 (1975); NIKLAS LUHMANN, SOCIAL SYSTEMS (1996); Luhmann, Law, supra note 29, at 98; Luhmann, supra note 46 at 316,332, 359, 393. See also DI FABIO, OFFENER DISKURS UND GESCHLOSSENE SYSTEME at 150 (1991). 51 Luhmann, supra note 46, at 320-321. 52 Luhmann, supra note 46, at 321.

50

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law

53

. In addition to this, motivation, as a social construction, is part of the

communicative side of the penal sanction54. From the internal perspective of the legal system, punishment has to be understood as a communicative retribution that increases the probability of success of such communication from an external perspective55. This approach implies that penal pain has no communicative relevance per se, apart from the fact that it is actually inflicted. Only legal communication can have such independent relevance. Hence, for the legal system, penal pain is a certain social construction that implies certain states of mind (anguish, distress, affliction, etc) in the person upon whom the sanction is imposed56. So conceived, penal pain is only relevant to the concept of penal sanctioning to the extent that saying something about it gains normative relevance. In turn, such normative relevance may vary with societys development. This allows us to explain why modern society confers less and less relevance to the sanctions physical pain57. The main feature of the legal system does not lie in the cognitive-psychological effects of legal rules (about which we may only have certain presumptions or assumptions), but in their normative-communicational effects. If the legal system tried to secure the cognitive side it would not perform its function, i.e., the function that enables the law system to reproduce itself. The cognitive side must be presumed as a condition that allows for the possibility of legal communication, but it cannot be secured by the legal system without endangering the own unity and existence of the legal system. In short, penal sanctioning does not aim to
53

Following this reasoning WILFRIED BOTTKE, ASSOZIATIONSPRVENTION. ZUR HEUTIGEN at 63 (1995). 54 This position is not so far away from approaches as STRAWSON, FREEDOM AND RESENTMENT: AND OTHER ESSAYS (1974). V. HIRSCH, CENSURE AND SANCTIONS (1993). 55 The different perspectives from which to observe the legal system has been a recurring theme in legal theory. The legitimacy question is closely related to this debate. In order to access the contending arguments see JRGEN HABERMAS, THE INCLUSION OF THE OTHER: STUDIES IN POLITICAL THEORY (2000) and Niklas Luhmanns response in Luhmann, Quod Omnes Tangit: Remarks on Jrgen Habermas Legal Theory 17 Card.L.Rev. 891 (1996). 56 Precisely here lies the reason why corporate criminal sanctions are feasible (see CARLOS GMEZ-JARA DEZ, LA CULPABILIDAD PENAL DE LA EMPRESA 296 (2005)]. 57 This would explain the suppression of physical pain penalties and the enormous increase of monetary penalties. Regardless of the fact that such an evolution facilitates managing penalties in our society and it also enriches the State what seems extremely relevant is that the expressive meaning of penal sanctions remains, i.e., it has not changed though physical pain is no longer present as such. Expressive theories in the US debate provide interesting insights for these matters (see Steven Adler, Expressive Theories of Law: A Skeptical Overview 1363 U.Penn.L.Rev. (2000) 148; Anderson / Pildes, Expressive Theories of Law: A General Restatement, 1503 U.PEnn.L.Rev. (2000) 148; in the criminal law battlefield see Dan Kahan, What do Alternative Sanctions Mean, 591 U.Ch.L.Rev. (1996) 63; Dan Kahan, Between Economics and Sociology: The New Path of Deterrence 2477 Mich.L.Rev. (1997) 95; Dan Kahan, The Secret Ambition of Deterrence, 413 Harv.L.Rev. (1999) 113).
DISCUSIN UM STRAFZWECKE

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generate certain psychological consequences inside peoples minds caused by pain. Rather, its purpose is to decipher the normative relevance of attributing certain states of minds (anguish, fear, affliction, etc) to people. Thus, penal pain is also an instantiation of meaning, not a goal58. IV.- What to do? Basic agreements, ambitious proposals Up to this point I have discussed different aspects of the concept of enemy criminal law. Yet, I cannot finish this intervention without stating that which all legal scholars in Europe agree upon - the current situation in which enemy criminal law is used indiscriminately is by no means desirable. On the one side there are those who criticize any kind of enemy criminal law regulation and yet acknowledge that all legal systems in Western countries contain such regulations. On the other side, there are those who explain why such regulations do exist and warn us of the dangerous pollution that enemy criminal law spreads, and will surely continue to spread, throughout the citizen criminal law system. In the face of such concerns, the inevitable question is the following one: what should we do with enemy criminal law? IV.1.- The pollution thesis and setting contention barriers To be fair, Jakobs provides a rigid prescriptive solution to this problem that is not always noticed: we must separate as clearly as possible the provisions pertaining to enemy criminal law from those belonging to citizen criminal law. The main reason for this is that both types of criminal law respond to different types of logic. Hence, we must avoid at any cost the pollution or contamination of citizen criminal law by enemy criminal law. In this vein, Jakobs affirms that it is the task of criminal law scholars to identify the rules of enemy criminal law and separate them from citizen criminal law in order for the latter to insist in the treatment of the offender as a lawful person59. The reason for this is that when large parts of enemy criminal law intermingle with citizen criminal law, the result is an unnecessarily harsh criminal law that lacks

58 See generally Carlos Gmez-Jara Dez, Die Strafe: eine systemtheoretische Beobachtung 36 Rechtstheorie 352 (2005). 59 Jakobs, Dogmtica, supra note 3, at 46.

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justification and is harmful to the rule of law60. Therefore, the State () should distinguish clearly between provisions directed towards terrorists () from those directed towards citizens. If that is not the case, enemy criminal law pollutes citizen criminal law61. In short, the enactment of a massive amount of enemy criminal law provisions is not good for the rule of law62. In sum, it should be stressed that Jakobs considers that the present status quo is unacceptable and that enemy criminal law presently knows no limits. The quest for limits to enemy criminal law has always been present in Jakobs theoretical construction of the concept. Thus, it is clearly acknowledged that enemy criminal law must be limited to those instances in which it is necessary to make use of it63. The problem, as Jakobs himself acknowledges, lies in how to determine when it is actually necessary to make use of enemy criminal law64. It seems that Jakobs sets at least two limits on enemy criminal law. In the first place, he argues that the State has no need to deprive enemies of all of their rights. Secondly, he believes that the State does not need to do everything that it can do, but actually may refrain from doing so in order to leave the door open to a future peace agreement with the enemies65. IV.2.- Enemies vs. Citizens: On which side should the State insist? For most scholars the prescriptive solution offered by Jakobs does not sufficiently limit enemy criminal law. It is a necessary but not sufficient step66. That is, scholars contend that commentators should not satisfy themselves with identifying those provisions responding to the enemy criminal law logic. They should also plead for their gradual disappearance. This is basically due to their belief in the impossibility of securing the preconditions of the legal system through the use of enemy criminal law and the threat that enemy criminal law poses to citizen criminal law. Using Peter Alexis

Jakobs, Enemigo, supra note 3, at 50. Jakobs, Enemigo, supra note 3, at 82. 62 Jakobs, Enemigo, supra note 3, at 48. 63 Jakobs, Enemigo, supra note 3, at 76. 64 Id. 65 Jakobs, Enemigo, supra note 3, at 34. For an interesting discusion as to what is needed, from a constitutional perspective, see Michael S. Paulsen, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257 (2004). 66 See similarly Cancio Meli, supra note 4, at 144-147.
61

60

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Albrechts words, the war on terror has a victim that at first sight is not easy to see: the annihilation of the rule of law is imminent67. But how should we proceed if we are to place meaningful limits on enemy criminal law? Surely, it is not an easy task. One way to approach this problem is to examine the expansions and contractions of enemy and citizen status. It can be stated that the rules of enemy criminal law have provoked an expansion of the enemy status of certain people and a corresponding contraction of the citizen status of some people. This expansion and contraction has been carried on with two different degrees of intensity. The first and less intense instance of expansion and contraction of enemy and citizen status was the product of the well known war on crime, where certain types of offenders (those related to organized crime, sex offenders, drug traffickers, etc) were partially deprived of regular procedural rights and were typically subjected to higherthan-usual imprisonment sanctions. The second more intense instance of this phenomenon has been the recently launched war on terror, where terrorists are totally deprived of all procedural rights and are consigned to legal oblivion. This enemy status expansion is reflected in the way that certain individuals are demonized by the legal and social system68. In my opinion, the key to solving this problem lies in countering these movements by expanding citizenship status and contracting enemy status. In order to do so, one must counteract the two abovementioned strategies - the war on crime and the war on terror. Therefore, a first expansion of the citizen status should take place when, regardless of the actual norm violated by the offender, including drug and sex related offenses, society still affirms his condition of being a law-abiding citizen. The second expansion should be derived from the human rights movement across the world and the corresponding status of a global citizenship. No matter what the offender has done, even if he is deemed a terrorist, there are some core and basic legal rights that he should always be entitled to.

Peter Alexis Albrecht, 117 ZStW 852 (2005). See Cancio Meli, supra note 4, at 129-143. Many authors agree with this position (see Ambos, supra note 7 at 138; Hrnle, supra note 6 at 69-70; Muoz Conde, supra note 4 at 37; Demetrio Crespo, supra note 13 at 493). Yet, to confront criticism see Polaino-Orts, supra note 4 at 213.
68

67

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IV.2.1.- First level of expansion: War on crime (enemies) vs. presumption of law abidance attitude (citizens) If one examines some of the legislation currently enacted in many modern western states, one can easily see that the express terms of many criminal provisions and laws already seem to suggest that certain classes of citizens should be treated as enemies. To talk about combating someone or to wage war on certain types of criminals gives a sense of the public discourse being put into play. This is one of the characteristic features of enemy criminal law69: the enactment of what could be called combat legislation or war-on-something legislation. It is not hard to see this in current legal rhetoric regarding the war on drugs, the war on sex offenders, etc. In sum, it is undeniable that this type of war on crime legislation fills the penal codes of every Western state. In Europe, similar legislation is easy to find when examining the domestic laws of various States. However, and more interestingly, this can also be observed when examining the legislative measures adopted by the European Union itself. Take, for example, the following titles of several recently enacted European Union rules: (1) framework decision on combating the sexual exploitation of children and child pornography70, (2) framework decision on combating trafficking in human beings71, (3) combating corruption in the private sector72, (4) framework decision on combating terrorism73, etc. In light of these laws, it very much seems that the state is engaging in combat against its enemies. The problem with this lies in the fact that those enemies are also its citizens, at least some of them are. It thus appears that the state is conducting a war against its own citizens on a regular basis. How else are we to interpret such words and such attitudes? Actually, if we look carefully at the type of wars regularly waged by the state, we would notice that they do not resemble a war against a foreign country, but rather an internal or civil war. Hence, we may label this whole situation as a penal state of civil war, for there are
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Jakobs, Enemigo, supra note 3, at 47. Concil Framework Decisin 2004/68/JHA of 22 December 2003. 71 Concil Framework Decisin 2002/569/JHA. 72 Concil Framework Decisin 2003/568/JHA of 22 July 2003. 73 Concil Framework Decisin of 13 June 2002.

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no foreign enemies or enemy aliens to combat, only actual internal enemies74. It is not necessary to remind ourselves how bloody civil wars tend to be. Thus, avoiding this type of confrontation between the state and its own citizens is highly desirable. How can we avoid such a penal state of civil war? I believe we can do so by insisting on a presumption of law-abiding behavior on the part of the offender. The potential dangerousness of the offenders conduct should not be a matter of criminal law, but of other sectors of the law enforcement world. In this sense, dealing with dangerousness and deviant conduct is a task to which the police power, not criminal law, should be devoted. As a matter of fact, the content of enemy criminal law responds to the logic of police intervention, for, as Jakobs himself has acknowledged, it is impossible to exclude the logic of policing from enemy criminal law75. It is the duty of police agencies and their officers to view individuals as potential sources of danger and potential violators of the law. Thus, it should not be surprising that police enforcement measures embody this view as well. However, the same does not hold true for the criminal law. The latter, by definition, must presume that individuals are law-abiding citizens, and should be blind to other considerations that might be relevant for policing procedures. IV.2.2.- Second level of expansion: War on terror (enemies) vs. Global Citizenship (citizens) As previously stated, the second expansion of the enemy status of certain classes of persons manifests itself by way of rules that entail a total deprivation of the fundamental rights to which such a person is entitled. Its maximum expression, at least today, is the well-known war on terror, and, more specifically, the rules that paved the way for the establishment of the Guantnamo Bay detention camps. Not surprisingly, this way of proceeding has generated many problems for the American government and people, both domestically and abroad.

Regarding the distinction between external and internal enemies see Ambos, supra note 7, at 15. See also Fletcher, supra note 1, stating that current enemy criminal law in America leaves certain individuals, i.e., convicted felons, in a permanent state of second-class citizenship. 75 Jakobs, Enemigo, supra note 3, at 77.

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This problem is exacerbated by the radical exclusion from the legal world that is the product of being deemed an enemy combatant76. This is just too much of a fiction for (post-) modern society to tolerate. This holds true not only given the easily perceptible world tendency towards affording more human rights, but also, and to a greater extent, given the quasi-sacred nature of certain rights for American citizens on American soil. The program that has led to the total annihilation of the legal status that the concept of enemy combatants entails has found some barriers to its expansion, and as time passes and the terror paranoia diminishes, those limits will probably strengthen. Put simply, the general claim of expanding enemy status to such an extent that it seems to neglect the factual citizenship or personhood of the offender is something the legal system itself cannot tolerate and certainly cannot stand for an extended period of time. The incredible contradiction that pursuing a war on terror by way of creating a criminal law based on the potential dangerousness of certain individuals entails was clearly exposed by the United States Supreme Court in Hamdan v. Rumsfeld. There, the Court stated that, even assuming that the plaintiff Hamdan was a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the executive nevertheless must comply with the rule of law in undertaking to try him and subject him to criminal punishment77. As professors Katyal and Tribe put it when the war on terror was only beginning: it is one thing to wage war, and another to decide on guilt78. The reaction against such expansion of enemy status can be found in what could be labelled as the recognition of a global citizenship. This should lead us to recognize that individuals have an inalienable status that makes them bearers of certain fundamental rights just because they are citizens of the world. Global citizenship is highly consistent with the tendency of establishing a kind of international and universal global penal law79. Though some authors, like Jakobs, contend that this type of argument deals not with maintaining a legal estate, but with its establishment and
See COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN THE WAR ON TERRORISM 1-21, 183-208 (2003); Cole, Enemy Aliens 54 Stanford Law Review 953 (2002). 77 Hamdam v. Rumsfeld, 126 S. Ct. 2749 (2006). 78 Neal Katyal / Larry Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals 111 Yale L.J. 1259 (2002). 79 See the detailed analysis of Ambos, supra note 4 (proposing a criminal law fair to human kind (menschengerechtes Strafrecht).
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only the former relates to real criminal law80, social scientists provide evidence of a Global Constitution (Globalverfassung) that constitutes the foundation of the global validity of human rights81. These insights have special relevance in light of current developments regarding the legal status of enemy combatants. The new proposed amendment to the Reauthorization Bill H.R. 1585, which attempts to restore jurisdiction to the federal courts to hear habeas corpus petitions from enemy combatants, clearly shows the impossibility of the system to just accept a major contradiction within its own logic in a long-term perspective. The American system of checks and balances responds to executive and judicial overreaction82 and, quite ingeniously, Professor Katyal has pleaded for sunsetting judicial and legislative decisions83 in the future, by arguing that what may be tolerated at times of war may be absolutely unbearable in times of peace. V.- Conclusion In answering the question about whether the state should make use of enemy criminal law in order protect itself from the permanent threats posed by certain individuals that continuously call into question the legitimacy of the legal order, I believe that the state cannot secure its own existence. In my opinion, the opposite seems to be true. There is substantial evidence supporting the proposition that the State annihilates itself when it betrays its own rules by introducing legislation that contradicts its very essence. The final answer to this and other related questions will only be known once future events that no one can presently predict have transpired.

Jakobs, Enemigo, supra note 3 at 53. See extensively FISCHER-LESCANO, GLOBALVERFASSUNG: DIE GELTUNGSBEGRNDUNG DER MENSCHENRECHTE (2005); Fischer-Lescano, Globalverfassung: Verfassung der Weltgesellschaft 88 Archiv fr Rechts- und Sozialphilosophie 394 (2002); Fischer-Lescano, Los desaparecidos und das Paradox der Menschenrechte 23 Zeitschrift fr Rechtssoziologie 217 (2002). 82 Neal Katyal, Executive and Judicial Overreaction in Guantanamo Cases, Cato Supreme Court Review (2003-2004) 83 Neal Katyal, Sunsetting Judicial Opinions 79 Notre Dame L. Rev. 1237 (2004)
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