Criminalizing the Political: The Liberal State, Dissent and the Problem of Legitimacy

Acknowledging a pattern of global dissent since 2001 involving pro-democracy, anti-war, environmental and anti-Austerity campaigns, this paper highlights the way so many liberal states have criminalized political dissent and asks why this has happened. This tendency is not well understood or acknowledged. The paper proposes a novel interpretative framework drawing on empirical and historical research, and legal, political and ethical theory to establish why liberal states (like America, Britain, Canada and Australia) do this and why repressing dissent and criminalizing the political is bad for democracy. The paper assesses the respective merits of several possible explanations. One explanation identifies the increasing willingness of liberal states to criminalize political dissent as part of a broader criminalization process, referred to as the ‘punitive turn’ taken by any number of neo-liberal states. A more satisfactory explanation begins with an examination of the long-running crisis of legitimacy illuminated sharply in the ‘debate’ between Habermas and Schmitt about the relationship of sovereign power to legitimacy revealed in Schmitt’s aphorism that ‘sovereign is he who has the power to declare an exception’. The paper argues that in in all liberal democracies we see the normal provision for what Dyzenhaus (2006) calls legal ‘black holes’ and ‘grey holes’ legalizing exceptions to the rule of law. Notwithstanding the liberal self-portrait emphasizing commitment to constitutionality, rights and the rule of law, most liberal states illustrate a long-standing historical disposition to privilege security over freedom. This suggests a more fruitful line of inquiry and points to a disposition to criminalize political dissent that is far older than the neo-liberal project but one that has become especially virulent in the neo-liberal era.