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Towards a Theory of Institutionalized Judicial Exceptionalism

What happens when the exception becomes the norm, what happens when the law becomes a form for that which cannot have a legal form, that is, the political? The focus of this article is a form of power politics that is institutionalised and set up to work side by side with the existing legal system as a sort of normalized, co‐ordinated court procedure, initiated with the aim of subjecting specific groups (terrorists, criminals) to extended regulatory control and enforcement. These strategic bureaucratic mechanisms of exclusion appear as security enforced measures, which side by side with the existing ‘normal’ legal system govern a specific judicial‐political area. The normalised (or rooted, if one wishes) incorporation of extra‐judicial authority within the legal system will in the article be refered to as institutionalised judicial exceptionalism. The purpose of the article is to theorise and conceptualise the in many ways murky or indistinct phenomenon of institutionalised judicial exceptionalism.This task includes suggesting a model capable of assimilating within its theory the displacement in the relationship between the state, the law and the citizen that stems from the fact that the ever more securitized discourses on terrorism and crime increasingly take priority over the ordinarily non‐derogable principle of equality before the law.