Criminal law for enemies. A look to the law and to the war

Abstract

This article tries to present a conception of the social aspect that begins from the war as motor and base of the political and legal organization. As opposed to the contractual tradition which conceives the existence of the State and the Law since the beating of the war and the state of nature, Foucault presents theoretical elements, taken up again in this text and called military perspective, to understand some social phenomena instilled in the logic of the war.

The utility of the military perspective developed by Foucault will be shown in the analysis of a theorizing and a practice so called “criminal law for enemies” which exhibits as no other the logic of the war that encourages the State and its law. The criminal law for enemies will be undertaken from the development of three basis elements: i) the cognitive security; ii) the way how the enemy is individualize; and iii) the arguments used to legitimize the existence of criminal law for enemies conceived as “the legal regulation of the exclusion”.