Every Day’s Terrorism

Giovanna De Minico

SUMMARY: 1. The New Face of Terrorism. - 2. The Law of Fear Today. - 3. About the Precautionality Principle. - 4. About the Proportionality Principle. - 5. The Exceptional and Temporary Nature of the Law. - 6. The European Law of Fear. - 7. The French Laws ‘Relative à l’Etat d’Urgence’. - 8. The French Law ‘Renforçant la Securité Intérieure et la Lutte contre le Terrorisme’. - 9. The Law of Fear Tomorrow.

The New Face of Terrorism

The latest generation of terrorism can assume the threatening face of a foreign fighter or that, apparently innocent, of a neighbour totally committed to his daily routines. It may be imported from distant grounds of violence or grow hidden in the social desert of a banlieue. It can target the traditional symbols of established powers or hit with irrational cruelty any moment of civil gatherings. It is a changing and polymorphic phenomenon, difficult to prevent and repress, that injects fear in everybody’s mind due to the expectation that it can come back time and again.

Today’s terrorism mutates its nature from an isolated and extra-ordinary event to an endemic and normally expected one, even if it is unforeseeable when, where, and how the new explosion of violence will take place. Thus, it is no longer an event encompassed in a definite time frame, after which a legal order resumes its normal course. It tends, rather, to last sine die, hanging over the daily life of the people.

Summing up, it can be defined as an ordinary time terrorism.

The recurrent nature of this event affects the work of the emergency legislator, which has to dwell upon the probability of the terrorist act happening on the basis of an ex ante prognosis. The legislator has to assess in advance what the chances are that the feared event may actually take place, in order to provide proper remedies for removing or reducing the citizens’ fear.

It is precisely this fear that is at the origin of the “law of fear” expression, which is not a law generically aimed at preventing and repressing ordinary violence. It is, rather, a law generated by the special fear caused by the latest generation of terrorism: a fear that exerts a pervasive effect over the daily life of each person and that gives rise to a collective social alert.

The legislator has to face problems, which may even be old, but certainly require a completely new approach. The regulation to be laid down in order to determine and prevent the terrorist event in advance cannot be based on a fact that has already occurred or on the id quodplerumque accidit criterion. The legislator must perform a probabilistic assessment of the risk of it taking place in the future.

In this chapter, which should serve as a general framework to the volume, we will focus on the basic issue posed by terrorism: to what extent can an emergency situation depart from the fundamental principles of the rule of law without compromising a return to the normal institutional order?

Our iter procedendi will be the following: the first step considers the model of the “law of fear”, as sketched by American doctrine and now accepted also by the European legal culture. The second step entails an analysis of the Directive of the European Parliament and the Council 2017/541 ‘on combating terrorism’, as well as of the French law 2017 ‘renforçant la sécurité intérieure et la lute contre le terrorisme’. The last step sets out our evaluation of the paradigm of the law of fear in respect of both its European legitimacy profile and its effectiveness. In this way our reasoning will come to a circular conclusion.

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