Enforcement makes law real. Without enforcement, laws are empty words written down in official documents after undergoing a democratic process that gives these rules and regulations the legitimacy to exist. The law is usually enforced by state authorities such as police forces, border guards or military personnel. People who enforce law have – so long as they are ‘on duty’ – a range of powers. Thus, they represent the executive power of the state. Montesquieu argued in The Spirit of the Laws (with reference to Locke’s Second Treatise of Government) that these powers should be administered separately from the other two functions of ‘government’: the legislative and the judicial. With this separation of powers, one branch can check the other and a sort of balanced power is created.
Different groups in society perceive enforcement and enforcement staff differently. For some people, dealing with the executive power is nothing exceptional. Enforcement staff are seen as keepers of order or as friendly auxiliaries. For others, they can represent an authoritative threat that restricts their actions or behavior, or even questions their legal existence. This last may seem impossible. And yet, it is possible. The legitimacy of a human being on a territory with a certain jurisdiction requires recognition and permission by the state. This is not an easy matter. It is attached to a highly complex legal framework and a philosophy of citizenship that is then acted upon by enforcement officials.
This enforcement action is increasingly practised in liberal democracies. It demands the identification and the tracking down of persons with an ambivalent legal existence, so-called ‘illegal immigrants’. Although at first sight this practice raises liberal tensions and contradictions, hegemonic public and policy discourses at different levels (national, regional and so on) have generated an effective discursive platform that legitimizes this enforcement, not only in the UK, but across Europe and beyond.
Hirst (2000) referred to the UK system as being particularly endangered by Carl Schmitt’s prophecy of motorized legislation, whereby executives run the legislature and where laws do not ‘aim at the citizens but at officials in their capacities as regulators of citizens’ activities’. By this, ‘professionals have great discretion as to whether or how to use and to interpret’ laws and, despite contemporary talk of the ‘retreat of the state’, ‘enforcement becomes something of a lottery’. Putting this claim into the context of intrusive enforcement such as ‘stop-and-search’ or ‘spot-checks’ practices taking place in liberal democracies like the UK or Germany, by which the legal existence is per se questioned and controlled ‘on the spot’, it recalls Schmitt’s mysticism of the soil (in Ordnung und Ortung) where ‘a concrete truth is never utopian; it has a piece of earth under it, a soil, from which it emerges; it is located in the full sense of the word’ (1995).
We have here not a noveau ancien regime (Beccaria, 1995) perhaps, but a development of enforcement practices that do not suit liberal democracies and point to post-liberal societies. It leaves a puzzle which addresses the ethics of existentialism, not only in liberal democracies but in an universal sense: How to define the existence of a person?
Beccaria, C. (1995) ‘On Crimes and Punishments’ and Other Writings, Bellamy, R. (ed.), Cambridge: Cambridge University Press.
Hirst, P. (2000) ‘Statism, Pluralsim and Social Control’, British Journal of Criminology, 40(2): 279-95.
Müller, J. (1997) ‘Carl Schmitt – An Occasional Nationalist?’, History of European Ideas, 23(1): 19-34.
Schmitt, C. (1995) Staat, Grossraum, Nomos, Berlin: Duncker & Humblot.