Abstract

Drawing on Niklas Luhmann's systems theory, this article approaches the legal exception through an analysis of conflicting temporalities. According to Luhmann, each subsystem of society possesses a specific mode of relating to past and future events. Law has a specific temporality that is characterized by its orientation to the past: it deals with deeds done in light of laws already set in place. Luhmann suggests that considerations of future risks are at odds with the temporality of law. Following this idea, it will be argued that future orientated measures such as preventive detention and the doctrine of preemptive warfare introduce the legal exception into law itself. Both cases exhibit different rationalities of relating to an uncertain, potentially threatening futures that collide with law's proper temporality. Whereas preventive detention relies on the 19^th century idea of the probable crime as incorporated into a ‘dangerous individual’, the preemptive strike thrives on the post-probabilistic anticipation of the unexpected. Both measures indicate the erosion of law's capacity to sustain an indifferent attitude towards the future. Consequently, both measures thwart law's retroactivity, albeit in different ways. They articulate a counter-legal temporality within law – and thereby disrupt the legal system.