Between the Scylla of Terrorism and the Charybdis of the Police State: on the new French Anti-Terrorist Legislation

The debate over the new French anti-terrorist legislation, adopted on 3 June 2016, gives one more or less a sense of déjà vu. From the anarchist movement of the late 19th century to the “grand banditisme” and from the separatist or Marxist extremism of the late 70s to the current Islamic fundamentalism, the storyline is basically the same, in France, as elsewhere: an appalling criminal event or phenomenon gives birth to a – usually “exceptional” – liberticidal law (lois “scélérates” of 1893-1894, loi “sécurité-liberté” of 1981, antiterrorist laws of 1986 and 1996, loi “Perben 2” of 2004, just to mention some of the most mediatised cases), which in practice proves to be sometimes less exceptional than expected. When liberal reflexes of the society are powerful enough, such laws are sooner or later, partially or wholly, de jure or de facto abrogated, until a new atrocity justifies a new “exceptional” legislative arsenal, and so forth. This legislative evolution is commonly preceded and accompanied by polarised public debates, where – to borrow the terms of Stanley Cohen – “moral panics”, translating the rule of law into a mere obstacle for public safety, clash with “states of denial” with regard to the need for any criminal policy to correspond to its historical context and to offer effective protection of legal goods.

The law of 3 June 2016, the third French antiterrorist law in three years, was debated for four months and voted by an impressive majority both in the National Assembly and the Senate. It contains more than 100 articles. For its defendants, this law brings the “state of emergency”, proclaimed after the 13 November attacks, to an end, providing the State with a strong, but respectful of the rule-of-law, toolbox against terrorism ...

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