Future Emergencies: Temporal Politics in Law and Economy

Special Issue: Governing Emergencies

Future Emergencies: Temporal Politics in Law and Economy

Theory, Culture & Society 2015, Vol. 32(2) 107–129 ! The Author(s) 2014 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/0263276414560416 tcs.sagepub.com

Sven Opitz and Ute Tellmann University of Hamburg

Abstract This article develops a notion of the ‘politics of time’ in order to analyse the effects that imaginations of future emergencies have in the fields of law and economy. Building on Niklas Luhmann’s theory of social time, it focuses on the multiplex temporalities in contemporary society, which are shown to interact differently with the ‘emergency imaginary’. We demonstrate that the apprehension of the future in terms of sudden, unpredictable and potentially catastrophic events reinforces current modes of producing financial futurity, while it undermines the procedural rhythm and retroactive sentencing of liberal law. As a whole, the article supplements the analysis of the ‘politics of truth’ prevalent in the current debate about precaution and pre-emption with a theoretical perspective on social temporality. Keywords derivative, emergency, Luhmann, money, pre-emption, risk, ticking bomb, time

Our temporal frames of the future have shifted towards an ‘emergency imaginary’. It depicts the future in terms ‘of sudden, unpredictable and short-term phenomena’ (Calhoun, 2004: 376, 392). By calling this form of futurity an ‘imaginary’, Craig Calhoun highlights that we are dealing with a widely shared and affectively charged discursive structure, which frames our comportment towards what is given and what is ahead in a very specific way. It presents the future in a particular format: as a disruptive, potentially catastrophic event. This imaginary of the future proliferates. It can be found in different fields such as climate change, terrorism, financial crises or epidemiology. In all these domains, we expect catastrophes that we need to survive (Anderson, 2010a; Aradau and van Munster, 2011; Cooper, 2006; de Goede, 2008; Guyer, 2007). We are faced with a transversal threat-form that ‘operates analogously Corresponding author: Sven Opitz. Email: [email protected] Extra material: http://theoryculturesociety.org/ Downloaded from tcs.sagepub.com by guest on March 17, 2015

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regardless of the empirical characteristics of the domain, the specificity of its elements and their particular functional structuring in the workings of a given system’ (Massumi, 2009: 160). A rich array of scholarly work has convincingly demonstrated that this expectation of catastrophe has a cultural-political valence that requires critical investigation. It does not just express a concern over the ecological, political and economic consequences that our way of living generates, but rather belongs to a specific mode of problematizing the future. The main focus of this current scholarship lies on the ‘politics of truth’ (Foucault, 2007: 3). Fine-grained analyses of the epistemologies of precaution, preparedness and catastrophic risk are linked to the shifting modes of political intervention, of territoriality, security provision or post-political populism (Aradau and van Munster, 2007; Collier, 2008; Collier and Lakoff, 2008; Dean, 2010; Lakoff, 2007; Swyngedouw, 2010: 217). This research has produced enormous insights. It exposes the similarity of current forms of governmental reasoning regardless whether financial, epidemiological, political or ecological risks are involved. In this article we propose that such analysis of the ‘politics of truth’ should be accompanied by an analysis that focuses on the ‘politics of time’. With ‘politics of time’ we mean the contingent and contestable making of the various temporal patterns and rhythms that define social order. The notion ‘politics of time’, as Peter Osborne has pointed out, draws attention to the politics ‘which takes the temporal structures of social practices as the specific objects of its transformative (or preservative) intent’ (1995: xii). It alerts us to the distinctive ways of relating the past, present and future to each other. Such politics of time is always closely related to particular historical epistemologies that ‘define the temporal forms and limits to knowledge’ (1995: xii), but cannot be reduced to it. We therefore seek to place the findings of the scholarly work mentioned above in a theoretical frame that is able to address this temporal dimension. We argue that the politics of time linked to the emergency imaginary consists in the differential impact and resonance that this type of futurity has in regard to existing temporal patterns. Focusing on the fields of economy and law, we show that this form of futurity amplifies the current form of economic temporality, while it disrupts and disfigures legal temporality. The rise of the emergency imaginary undermines the protection offered by liberal public law, while it functions as a temporal stronghold for the modes of ‘event-based capitalism’ of today (Cooper, 2008: 3; Guyer, 2007). In order to develop the theoretical frame that is able to shed light on the politics of time we will take recourse to Niklas Luhmann’s work on social temporality (Luhmann, 1976, 1995: 41–52). Although Luhmann himself never used the notion of politics of time, he still provides us with important conceptual tools for understanding the making of order by the marking of time. Two aspects of his work are particularly relevant for the current Downloaded from tcs.sagepub.com by guest on March 17, 2015

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argument. First, Luhmann offers a theoretical perspective that allows describing how economic, scientific, religious or legal practices elicit different types of ‘future making’ (Adam, 2008: 1). Second, Luhmann also enables one to integrate the analysis of an operational mode of marking time with the historical epistemologies of the future. As a whole, this article seeks to bring together the strands of sociological research on time, to which Luhmann belongs (Abbott, 2001; Adam, 1994; Elias, 1993; Maines, 1987; Rosa, 2003), the debate on contemporary monetary and legal temporality, and the advances made in the study of discursive practices of futurity in political theory and security studies (Anderson, 2010b; de Goede and Randalls, 2009; Dillon, 2008; O’Malley, 2004). Its aim is to constellate these fields in order to render visible the dimension of the politics of time that has hitherto not sufficiently been attended to. This article presents its argument in three steps. The first section is devoted to a theoretical discussion of how to combine Luhmann’s take on social temporality with the study of the political rationalities and of discourses on futurity. This section serves the purpose of giving an introductory account of Luhmann’s notion of social temporality and presents how the imagination of a future ‘full of unpredictable events’ can be understood from this theoretical perspective. The second and third parts of the paper are devoted to an exploration of economic and legal temporality respectively. In each section, we will demonstrate how the patterns of economic and legal time interact with the ‘emergency imaginary’ of the future.

Differential Temporalities and the Eschatology of the Expected Catastrophe How to study the future? How to investigate the diverse processes of future making? According to Barbara Adam (2008, 2009: 12) this question has not been met with a satisfactory answer. Luhmann’s notion of social temporality provides a possible remedy for this shortcoming. Luhmann radically dismisses the idea of time as universal or a priori. Drawing on Alfred North Whitehead’s process theory as well as on concepts of recursivity and complexity, he conceives of social orders as inherently temporal orders: each social domain emerges as a series of interconnecting events (Luhmann, 1995: 41–52; Nassehi, 2011: 19–27). The operations of each system constitute ‘temporal atoms’ that ‘mark time’ (Rabinow, 2008). The economic system, for example, is a highly dynamic sequence of monetary events. Likewise, the legal system is a sequence of determinations about lawfulness and unlawfulness (Luhmann, 1993: 771; Arnoldi, 2001: 5). These connectivities are moulded by material forms of mediation: legal texts, monetary forms, organizational decisions or economic calculations are the operators that link one event to the next. Operational sequences have therefore distinct Downloaded from tcs.sagepub.com by guest on March 17, 2015

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rhythms and densities, depending on how events are made to connect and what type of mediation they rely on. Luhmann combines this account of the differential, operational aspect of social temporality with what he calls ‘temporal observations’ that are immanent to the sequential chain of events. In other words, he seeks to analyse how ‘observations of the future’ are part of the operative dimension (Luhmann, 1998: 47; Borch, 2011: 59–63). For doing so, he distinguishes ‘past presents’ from ‘present pasts’ and ‘present futures’ from ‘future presents’ (Luhmann, 1976: 140–3). This game of words might be confusing at first sight, but it turns out to be a disarmingly simple and yet effective conceptual pairing. The term ‘present futures’ refers to the present observations of potential futures. The future appears as something expected, feared or hoped for in the present. The term refers to what could be called the discourses, visualizations and enactments of possible futures – in short, it is about the ‘politics of truth’ linked to the future. Conversely, the term ‘future presents’ addresses the aforementioned operative level of social practices. These operations consist in the actual modes of chaining one moment to the next. A ‘future present’ will be an actual operation that has emerged from the previous one: a particular economic transaction, a particular determination of (il)legality or a particular political decision, for example. The ‘future present’ transforms thereby the potentiality of a given moment into a particular actualization, which will again give rise to the next one. Every event, in other words, ‘binds past and futures to set free new futures’ (Adam, 2009: 20). The discursive and the operative mode of futurity interact: ‘present future’ and ‘future presents’ are not independent from each other. How one event is linked to the next is determined by what comes before and by what one expects to follow. Discourses about the future (or the past, for that matter) exist as part of the operations which ensure the continuity of the system. ‘Present futures’ produce horizons for delimiting and directing how the ongoing interrelation of events occurs. ‘Present futures’ and ‘future presents’ thereby conjointly produce the Eigenzeit of a social practice, meaning a unique temporality of its own. As we will explore below, what kind of Eigenzeit comes into existence depends on the type of ‘symbolic media’ of a social field. Money and lawfulness are such ‘generalized symbolic media’ that configure their own time (Kessler, 2012: 86–90; Nassehi, 1994: 53–7). Luhmann embeds his theory of social temporality in a historical account of modernity, which is of crucial importance for understanding the modes of futurity in social systems. In accordance with the ‘discourse on modernity’ (Berman, 1983), Luhmann defines what is modern in terms of a temporal structure: the modern is what is orientated towards

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the ‘new’. Drawing on the work of Reinhart Koselleck (2002, 2004), Luhmann recognizes a fundamental rupture in the societal orders of time in the second half of the 18th century. Even though the conception of the future had been accommodating the possibility of uncertain and new events before this break, the things de futuris were still related back to the ‘the constancy of forms of being’ (Luhmann, 1998: 64). Unexpected events were thus regarded as temporary corruptions or accidental properties. This changed towards the end of the 18th century, with the French Revolution marking the definite arrival of a ‘modern conception of the future’. Uncertainty became conceived of as irreducible, change was seen as constant, and the future turned into a radically open horizon (Luhmann, 1976: 131–2). In this sense, modernity is linked to an intense futurization of the future. According to Luhmann, an act of futurization consists of an opening towards what is to come. It produces potentiality and implies an unbinding from the past. The present moment becomes the potential turning point between the future not yet determined and the past that is not any longer determining. The past and the future are not aligned automatically, but are articulated in the ‘now’. This intense futurization that characterizes modernity, however, does not occur without a simultaneous rise of modes of temporal control (Luhmann, 1976: 133). Acts of defuturization accompany these futurizations, attempting to dampen or mitigate this openness. Through acts of defuturization, the ‘present present’ and the ‘future present’ are more tightly joined. Social spheres, then, differ in how they adjust moments of futurization and defuturization. Social futurity emerges in the complex patterning of different technologies of futurization and defuturization. Some of these techniques are common to different fields, some are unique to certain practices. Their specific combination produces a type of futurity that is more or less uncertain or determined. One prevalent and transversal technique of defuturization in modern societies is the calculus of probability. Luhmann analyses the calculus of probability as a present future that creates a ‘fictionally created, dual reality’ (Luhmann, 1998: 70). The associated formula of risk circumscribes a situation of ‘multiple’ but not unlimited contingency (Luhmann, 2008: 16). According to Luhmann, calculations of the (im)probable offer a rationale for taking the future into account while simultaneously conceding that it might always turn out otherwise. It ‘defuturizes the future without identifying it with only one chain of events’ (Luhmann, 1976: 141). Notions of probability entertain the ‘idea that it may be a rational and even secure strategy to prefer the insecure over the secure’ (1976: 141). The probability calculus therefore represents a quintessential modern approach towards the future insofar as it tames but affirms the futurization of practices.

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How are we to understand the emergency imaginary in relation to the prevalence of the probability calculus as a modern form of tamed futurization? At first sight it appears as an act of radical futurization. The emegency imaginary presents us with a heightened sense of discontinuity, rendering the future even more contingent than the statistic calculus allowed for (Gumbrecht, 2001: 54). It deliberately moves beyond the calculation of probable events that relies on past statistical data towards the expanded realm of the ‘not impossible’. It operates on the basis of pre-mediations of possible future paths that are decisively not predictive (Grusin, 2004: 28). Over and against the statistic calculus, the emergency imaginary of the future asks us to consider what could be even if it is not probable (Ewald, 2002). Aiming at ‘the unexpected’, the emergency imaginary seeks to detach observations of the future from past experiences: ‘If the catastrophe befalls us, it is from a future without chronological continuity with the past’ (Cooper, 2006: 119). According to Luhmann, the catastrophe takes the form of a limit case: ‘the occurrence that no one wants and for which neither probability calculations nor risk assessments nor expert opinions are acceptable’ (Luhmann, 1998: 70). Under these circumstances, the ‘question arises how normal normality still is’ (Luhmann, 2008: xxvii). But one should not be too hasty in understanding the emergency imaginary only in terms of a futurization of the future. It also contains a profound act of defuturization, for it is characterized not just by radical openness but also by its insistence on a catastrophe that will necessarily happen, even if we do not know when and how it will strike. This conception of the future re-inscribes a quasi-eschatological moment in the apprehension of the future (Dillon, 2011). This eschatological moment has shed any redemptive meaning. It is not simply a secularized version of the theological end of history (Carvounas and Ireland, 2008: 161–4) since, for theological eschatology, the ‘separating segment of time’ between the present present and the end of history is ‘lacking in value’ (Bakhtin, 1988: 148). In contrast, the emergency imaginary of the future offers a ‘secularization by eschatology’, as Hans Blumenberg once put it (1983: 45), for it valorizes the interval between now and the catastrophe to come as a domain of decision and action within this world. The expected emergency hence defuturizes the future as much as it appears to futurize it. The present future invoked in the emergency imaginary is not a pure potential. It does not stretch out before us like an open field, but it comes at us. It is a future not to be lived but to be survived (Elmer and Opel, 2006). It articulates the modern orientation towards the future in a particular way: How is this articulation part of the current forms of future-making in the domains of law and economy? How does it modify or buttress them? And how can we understand the ‘politics of time’ associated with it? The next two sections will trace how differently the emergeny imaginary of the future interacts with liberal law and economy respectively. Downloaded from tcs.sagepub.com by guest on March 17, 2015

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Economic Temporality and the ‘Emergency Imaginary’ The expectation of a future full of unpredictable and potentially catastrophic events does not necessarily disrupt the production of economic futurity. On the contrary, several examples can be found that indicate a positive resonance between the emergency imaginary of the future and the current production and framing of economic futurity. According to the physicist Benoit Mandelbrot, chaos and catastrophe belong to the market, just as they belong to nature. ‘The flood came and went – catastrophic, but transient. Market crashes are like that’ (2004: 200). The scenario-planners from the Global Business Network, who specialize in helping business to deal with a future full of unknown events, explain, ‘in fact, a bigger menu of uncertainties provides daring innovators with new opportunities’. They proclaim, ‘when advantage lies mostly in the unknown’ it becomes absolutely essential to embrace ambiguities (Kelly and Weber, 2005: 2). Financial innovations make it possible to turn the expected catastrophe into an investment possibility of today. Financial instruments, such as catastrophe bonds, are invented to deal with upcoming catastrophes. Uncorrelated to many other stock indices, CAT bonds are in demand from portfolio managers, granting returns as high as 10 percent. Bloomberg News maintains that ‘catastrophe bonds may escape Japan’s worst earthquake mostly unscathed, outperforming stocks, commodities, junk-rated debt and the reinsurers they’re meant to protect’ (CFOworld, 2011). As these instances indicate, the expectation of a catastrophic future does not interrupt economic connectivity per se, but might even fuel it. How can we understand this resonance between economic futurity and the expectation of unpredictable and potentially catastrophic events? Luhmann would not be surprised that a radically uncertain future is embraced and taken up in economic practices. According to him, economy is more than any other social field linked to the futurization of the future (1994: 31, 268). Luhmann describes economic practices as opening up the future and making it accessible (Luhmann, 2005). The reason for this inclination of economic practices to futurize the future lies in the monetary medium. Like Georg Simmel before him, Luhmann assumes that money is linked to the future because it stores possibilities. Money grants to its holder a guaranteed capacity to lay claims on services or goods, but it does not prescribe how it is to be used (Simmel, 2004: 212). It can translate itself into many different courses of events that are not yet determined. Carrying money is like carrying an open future around in one’s pocket: ‘to have money is to have future and using money is “trading in futures”’ (Luhmann, 1994: 268, own translation). At the same time, money breaks the relation to the past since bank notes do not bear the traces of who has used them before. ‘In each successive pair of hands money can be used as if it were freshly minted – even if acquired Downloaded from tcs.sagepub.com by guest on March 17, 2015

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by fraud or theft. It operates without a memory’ (Luhmann, 2008: 176). It is, as the sociologist Dirk Baecker explains, a form of ‘enforced forgetting’ – a characteristic, which is captured by the famous proverb ‘pecunia non olet’ (1987: 526). In this respect, money embodies a radical rupture between past and future and makes the present into a moment of decision about how to use the potentiality that money embodies. Money is thus about the ability to open up a future over and against the determinations of the past; it defers or stores an open future and it allows commencing a particular future. Futurity and money are in this account intimately linked. Taking Luhmann as a vantage point for thinking about the production of economic futurity thus implies granting the monetary instrument a special pride of place in the analysis. He tells us that economic futurity is made in the abode of financial instruments. Consequently, much depends on how we understand the financial instruments at hand. Viewed from the perspective of recent works in the anthropology of finance and the social study of finance, Luhmann’s own account of amendment and qualification. When arguing that money has no memory and embodies pure potentiality, Luhmann seems to have ‘unmarked’ cash as the dominant form of money in mind. But money and monetary instruments exhibit a far more varied, socially marked and materially bounded quality than Luhmann makes us believe (Maurer, 2006; Leyshon and Thrift, 1997; Zelizer, 1989). If we are to understand how the ‘present future’ of the emergency imaginary is linked to finance, we will have to go beyond the notion of money as cash and take note of those financial instruments that define the current forms of financial future-making to a large extent: derivatives (Bryan and Rafferty, 2007). As many sociologists and social theorists have shown, derivatives belong to those financial instruments that ‘reorganize economic time’ today (LiPuma and Lee, 2004: 124). Derivatives are financial instruments that are, one could say, nothing but about the future. The very ‘substance, which forms the economic value of derivative is the [. . .] uncertainty of future fluctuations’ (Arnoldi, 2004: 26). Recent sociological studies have stressed how derivatives turn the future into a resource itself, generating profits by selling or buying different exposures to future price volatility (Esposito, 2011). Inspired by Luhmann’s perspective on economic temporality, one is led to ask how these instruments produce, entail or resonate with a certain expectation of the future that foregrounds sudden, unpredictable events with a potentially catastrophic impact. One is guided how to study ‘the arcane calendrics of dated time in the financial world’ (Guyer, 2012). The question then is: How are the ‘arcane calendrics’ of derivatives enfolded with the rise of the emergency imaginary of the future? In its simplest form, derivatives are contracts that fix the obligation or the right to sell or to buy a certain good at a certain price at a future Downloaded from tcs.sagepub.com by guest on March 17, 2015

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date (MacKenzie, 2007). Due to this contractual fixation of triggers and payments, derivatives are sometimes compared to insurance. They allow mitigating or managing the exposures to potential losses because they transfer risk (Pryke and Allen, 2000: 268). In its nascent form, which can be traced back to ancient times, it is about selling and buying the risks attached to the commitment to a certain good or investment. As the proverbial example goes, a simple derivative, such as a future, allows farmers a guaranteed price for their harvest in the fall if they are willing to forgo the possibility of benefiting from a potentially higher price. The derivatives market that has been growing since the 1970s adds a different aspect to this logic of insurance. It allows trading and speculating with these contracts, mixing and combining them to unprecedented degrees, disregarding ownership of the underlying good. Certain events in the future will make it profitable to own a derivate or to sell it, to combine it with others, to be able to swap income streams or risks, regardless if one has any stakes in the underlying assets. Trading with derivatives means to use the uncertainty of the future itself as a resource for making a profit. ‘Speculative capital [. . .] focuses on the fluctuations themselves, defining them as its object of profitability. It bets on the probability that individual events and processes will disrupt, if only temporarily, the long-term continuities’ (LiPuma and Lee, 2005: 410–11). Viewed from the Luhmannian perspective on economic temporality, these new monetary instruments can be described as simultaneously futurizing and defuturizing economic temporality. They combine ‘increasing awareness of risks and contingencies’ and the ‘taming’ of contingencies in a particular way (Arnoldi, 2004: 25). Derivatives are hybrid creatures. On the one hand they are contracts. They defuturize the future by setting due dates, forming obligations and specifying commitments. The future is enshrined in these contractual obligations as an expiration date or period. But since these contractual obligations are themselves saleable, this aspect of defuturization is counteracted. The trading of derivatives opens up a contractual obligation to a contingent future until the due date is reached. As Bryan and Rafferty (2007: 142) have argued, they are not just about time binding; they are also about ‘blending’, meaning that they provide an ‘on-going measure of all capital, in all forms, at all locations and across time’. One has permanently the chance to renegotiate the risks and terms of a commitment; one has permanently the chance of participating in the risks and benefits of a commitment even if one never entered into it in the first place. This combination of contractual obligation and commensuration produces a peculiar temporality that fixes a future point in time and links it to a horizon of high volatility until then. Everything is utterly uncertain until that future fix point. Downloaded from tcs.sagepub.com by guest on March 17, 2015

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After having re-described derivatives in Luhmannian terms of futurization and defuturization, we are now in the position to determine precisely how the expectation of a future full of catastrophic events resonates with this temporality of derivatives. First, one can detect a homology in the temporal structure between the emergency imaginary of the future and the ‘dated time’ of derivatives. As we have outlined above, the emergency imaginary has a specific threat-form that depicts the future to be both utterly uncertain and yet eschatological. The next catastrophe is certain, but until it will have happened one cannot predict anything about it. We find the same mixture of utter uncertainty and certainty ingrained in the financial instrument of derivatives. These saleable contracts enshrine a future that is extremely volatile and speculative until the obligation is due. Two temporal extremes are conjoined: potentially harmful or profitable certainty and complete uncertainty until then. We face an intriguing combination of ‘fantasy futurism’ that imagines all sorts of unknown events and an ‘enforced presentism’ of ever more fleeting moments of intense decision-making (Guyer, 2007: 410). This homology between the temporal structure of derivatives and the temporal form of the catastrophic imaginary of the future is not the only mode of resonance between these two. One can locate a second interrelation between scenarios of future catastrophe and the financial technologies of today. This interrelation is to be found in the very practices of how scenarios of catastrophe are used for risk management in today’s financial world. Imagining the future in terms of sudden, unpredictable and potentially catastrophic events has become an exercise that is mandatory in all kinds of financial institutions (de Goede, 2008; Tellmann, 2009). While one might expect that insurers of natural disasters are trying to imagine possible catastrophes, the use of catastrophic scenarios spreads beyond these institutions (Borden and Sarkar, 1996; Bougen, 2003; Collier, 2008). Regular stress testing had already become compulsory for financial institutions under the Basel II Accord. Since the recent financial crisis the increased use of catastrophic scenarios for stress testing is now regarded as an improvement of risk-management. Imagining the ‘shocks, which have not previously occurred’ has become a regulatory panacea (Basel Committee on Banking Supervision, 2009: 14). Envisioning the next catastrophe is used in this context as a means to render visible the ‘credit exposures’ that a financial portfolio has unwittingly taken on board (BIS and Wellink, 2008: 3). One assumes that the ‘cat’s cradle of interconnection’ (Haldane, 2009: 3) will expose its weak links if it is approached from the vantage point of a possible catastrophic event. Hence, the emergency imaginary of the future is heralded as a novel tool for taming the future: it serves as an epistemological strategy for securing and governing the exposures that the ‘chains’ of finance have produced. In line with the etymology of the word apocalypse, which originally meant revelation and epiphany, the catastrophic Downloaded from tcs.sagepub.com by guest on March 17, 2015

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event is understood as a revelatory moment for seeing the truth – in this case, the truth of one’s portfolio (Mu¨ller-Funk, 2002: 252). Saying that the emergency imaginary of the future becomes part of rendering the current mode of financial futurity operative is not to claim that it is the only possible ‘present future’ that serves the operational time of derivatives. Derivative trading has for the longest time used stochastic models to render the future calculable. The famous ‘BlackScholes-Formula’ provided the ‘efficient’ and ‘rational’ basis for pricing options, taking it out of the context of gambling (de Goede, 2005; LiPuma and Lee, 2004: 78; MacKenzie and Millo, 2003; MacKenzie, 2007; Maurer, 2002). Today, the stochastic models for risk-assessment have been criticized for their reliance on past frequencies and probabilities (LiPuma and Lee, 2005: 414; Mandelbrot, 2004). This turn away from stochastic modelling of risks towards scenarios of catastrophic events is often taken to signal a new level of critical reflexivity in financial markets insofar as ‘the expectation of surprises’ multiplies what counts as a possible future without giving in to a belief in controlling this future (Esposito, 2011: 17). But viewed from the perspective of the politics of time, the adoption of the emergency imaginary of the future as part of financial risk-management does not appear as a new level of critical reflexivity but as an attempt to find a new sense of epistemic security within the temporal structure of derivatives. As said above, derivatives are characterized by a defuturization in so far as they have a due date or trigger event attached to them. They entail a chaining of one event to the other. Imagining a catastrophic event is used to highlight these modes of being bound to the future. It promises to be able to manage and control this defuturization by revealing its effects in advance. Stress-testing functions as a device for producing epistemic security. It offers an apparently ‘vigorous’ test for securing financial futurities (Langley, 2013). The emergency imaginary of the future is thus not about the ‘end’ of finance as we know it. Paradoxically and much to the contrary, imagining the next catastrophe is taken to be a way for securing the ongoing forms of financial futurity. It mirrors the current mode of future-making and helps to manage it. The threat of a coming catastrophe is part of our current making of economic futurity. It might very well be that in order to avoid the ‘catastrophic’ strains and breaks in public and private finance, one should stop imagining the catastrophe and start thinking about material-financial futurity in multiple ways.

Law and Counter-Law in Times of Catastrophe In comparison to the positive resonance of the emergency imaginary with economic temporality, law appears to be more obstinate in regard to the interpellation of future emergencies. While the next emergency imposes Downloaded from tcs.sagepub.com by guest on March 17, 2015

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itself as a reference point for present action, law normally decides on past behaviour. While adaptation to unexpected events is the order of the day, law insists on its wording. While the expected catastrophe calls for urgent action, law sticks to its time-consuming routines. And while the extraordinary dimension of the potential emergency requires extraordinary decrees, law considers the consistency of present judgements with past judgements as the epitome of justice. In sum, the conjuring up of the emergency imaginary of the future interferes with the properties of law. Systematizing Luhmann’s extensive writings on law and temporality, we will demonstrate in the following how the emergency imaginary of the future collides with law’s own social temporality – its Eigenzeit. More precisely, law tends to invert the specific temporal structures it has acquired over long centuries whenever it seeks to accommodate a highly alarmed and pre-emptive stance. In being receptive to the rationale of the emergency imaginary it develops what – at least today – appears to be a ‘counter-legal’ temporality (Ericson, 2007: 24–31; 2008: 62–76). According to Luhmann, law is above all a device that ‘binds’ time (Luhmann, 1999: 73–91; 2004: 142–56). The notion of time-binding highlights the temporal function of legal norms. They stabilize and secure social expectations under modern conditions of an open future. Law, thus, allows one to maintain one’s expectations even if reality falls short of them. Legal procedures reinstate expectations ‘counterfactually’ by bringing legal norms to bear on those who have failed to adhere to them. In this sense, law constitutes a technology of temporal control. It binds time, since it counters an uncertain future with a supplementary certainty about specific expectations. To this extent law permits an indifferent stance towards contingencies of the future. As Luhmann (1999: 73) puts it, law allows for a ‘mere continuation of the past and the present in a world full of surprises, full of enemies, full of conflicting interests’. Over and against the discontinuities between past and future, it secures continuity through time. It defuturizes the future. This aspect of defuturization corresponds closely with a second temporal aspect of law: its orientation towards the past. According to Luhmann, law runs predominantly on ‘conditional programs’. These programs take the form of a linkage between a fact and a determination about legality: if fact X is given, then the decision Y is legal (Luhmann, 2004: 111). The sequence of ‘if–then’ relates a past event to already existing statuary rules and precedents: ‘In this respect law always operates as an ex-post-facto, tandem-arranged system’ (Luhmann, 2004: 198). Of course this does not mean that judges do not look into the future at all. First and foremost, they always try to estimate the legal consequences of their rulings: how does a particular decision alter the course of future decisions in other cases? Furthermore, judgments more often than not involve prognoses about future consequences: is it, for example, likely Downloaded from tcs.sagepub.com by guest on March 17, 2015

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that the offender will abstain from committing crimes? Might a particular drug affect the well-being of its users? Does a technology have the potential to cause environmental damage? These examples illustrate that conditional programs may integrate elements of so-called ‘purpose-specific programs’. Compared with the former, purpose-specific programs have a reverse temporal structure. They derive measures to be taken in the present from future goals: decide Y for the purpose of achieving X. This kind of temporal orientation characterizes politics and economy, but it threatens to disrupt liberal law. In a law running strictly on purpose-specific programs it would always depend on future presents, if a legal decision will have been correct. Moreover, the law would hold persons to be responsible for hypothetical deeds and their future effects. Albeit purpose-specific elements might be nested into conditional programs, the past should remain the reference point of the judicial decisions, at least if it purports to fulfill liberal standards. Or as Luhmann (2004: 202) puts it sardonically, ‘the future remains unknown – even to judges’. The emergency imaginary collides harshly with these two correlated aspects of modern law’s temporality. It declares the indifferent stance towards the future to be impossible and it challenges law’s temporal orientation towards past events. In the face of a coming catastrophe that will disrupt the continuity between past and future irrevocably, action is required and decisions need to be taken. In contrast to the legally circumscribed ‘zone of indifference’ towards the future, each (minimal) difference should (immediately) make a difference. Interestingly, these temporal clashes take to a large extent place on the affective level: whereas legal security, in the famous words of Montesquieu (1949: 150), allows for ‘tranquillity of mind’, the potential catastrophe transfers the body of the populace into nervous alertness. The unknown threat calls for affective apprehension as a pre-cognitive mode of becoming attuned to the ‘virtual co-presence of potentials’ (Massumi, 2002: 213). Worst-case scenarios, such as impending terrorist attacks with large-scale disruptive effects, unambiguously signal that it is not acceptable to wait until legal norms can be applied retroactively. One can neither afford the ‘tranquillity of mind’ nor can one afford to restrict attention to deeds that have been committed. The threat-form of the future generates the pressure to act upon the future. It installs a warped form of causality, one in which a future cause appears just in order to be pre-empted (Massumi, 2007). Many contemporary security technologies such as blacklisting (de Goede, 2011), targeted killing (Kessler and Werner, 2008) or preventive detention (Zedner, 2007) can serve as examples for the interferences between the emergency imaginary and the legal forms of defuturization. We want to focus on two cases for demonstrating these forms of temporal interference. The first example is a particularly well-researched case: the pre-emptive doctrine that has found its most prominent Downloaded from tcs.sagepub.com by guest on March 17, 2015

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expression in the National Security Strategy of the USA from 2002. We consider this doctrine as a kind of laboratory for para-legal reasoning. It offers a case for observing in actu the highly contested attempt to fit the conventions of law to the emergency imaginary of the future. Our second example is the scenario of the ‘ticking bomb’, which highlights how the urgency and decisionism of the emergency imaginary interacts with law’s temporal orientations and disfigures them. Both opponents and proponents of the pre-emptive doctrine have agreed that existing law and pre-emptive action cannot be made to fit each other (Dershowitz, 2006: 202; Falk, 2003; Glennon, 2003). Yet, interestingly and instructively, the doctrine aspires to achieve precisely this hybridization. In several passages, the doctrine tries to speak the official language of law. The document alludes, first and foremost, to Article 51 of the UN Charter, which grants the only exception to the general prohibition of the use of force: the case of self-defence. Using this case, the doctrine announces, ‘we will not hesitate [. . .] to exercise our right of self-defence by acting pre-emptively’ (NSS, 2002: 6). This announcement invokes the right to self-defence by inverting its temporality: an attack would have to be considered as realized, although it has not actually occurred. By doing so, the pre-emptive doctrine seeks to re-articulate how futurity can be addressed from within the law. Customary international law has long since acknowledged that there are indeed cases in which types of pre-emption might be lawful. It submits such invocation of the future to the so-called ‘Caroline test’ stemming from the 19th century (Nichols, 2008: 2–4). According to the Caroline test, pre-emptive military action is legally justified if a threat is ‘instant, overwhelming, leaving no choice of means and no moment of deliberation’ (cf. Robinson, 2008: 164). Yet the pre-emptive doctrine undoes this cautious futurization of legal temporality. The specific eschatological form of the emergency imaginary changes the Caroline test by suspending the reference to an attack that is already in the course of being executed. Instead, it depicts a threat that is ever present, but invisible and unknowable. Since the enemy can strike at any time and since its imminence is not ‘a visible mobilization of armies, navies, and air forces preparing to attack’ (NSS, 2002: preamble), pre-emptive self-defence can also occur at any time. The imperceptibility of today’s adversaries requires tackling ‘threats before they are fully formed’ (NSS, 2002: preamble). Anticipating inimical threats whose imminence is only virtually given becomes tantamount to actualizing military force in the first instance. By inserting the eschatological structure of the emergency imaginary, the incorporation of futurity into legal reasoning loses its ‘cautionary’ dimension. The pre-emptive doctrine cannot be regarded as a ‘new form of law’ (Cooper, 2006: 125). It is more aptly to be seen as a political laboratory in which radical mutations of legal temporality are tested. The doctrine Downloaded from tcs.sagepub.com by guest on March 17, 2015

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assembles re-interpretations of the UN Charter, the Caroline clause and the precautionary principle (Stern and Wiener, 2006; Sunstein, 2005) in order to produce a ‘force of law’ (Agamben, 2005: 32). In this experiment a ‘law’ emerges, in which norms are no longer applied, but projected onto acts to be suspected or feared in the future. Imagining a world of universal pre-emption invariably leads towards scenarios of pre-pre-emption: actors pre-empting the pre-emption of others. Such a spiralling dynamic would not only render attack and defence indistinguishable. A legal code that tried to accommodate it would simply be meaningless, since it would be lacking a regulatory function. Due to a lack of a distinct criterion to discriminate a lawful from an unlawful use of force, the exception erodes the legal rule. It is therefore highly symptomatic that the targets of preemption so far have suffered serious derogations of their legal status, be it as rogue states, enemy combatants, evil doers or monstrous criminal offenders (Opitz, 2012: 335–84). The inversion of law’s orientation to the past results in exclusions from legal guarantees. But it is not only on the international scene that one can record such collision between the emergency imaginary and legal temporality. Another example of these conflicting logics can be traced if we consider the scenario of a ‘ticking bomb’, which has been ubiquitous in public debate, political deliberations and legal scholarship alike (Hannah, 2006; Luban, 2006: 44– 52; Scheppele, 2005). The hypothetical setting is about time pressures: The police know that a time bomb has been planted and the danger it poses is grave. However, the police do not know the location of the bomb; they only know that a person in custody knows about it, but is not willing to share this knowledge. The ticking bomb scenario thus constitutes an ‘ethics of urgency’ (Slavoj Zˇizˇek) that serves, in the last instance, as a justification of torture. It locates its protagonists in a race against time that derives its rhythm from the ticking of the timed detonator itself. The imaginary of a clockwork running backwards transforms the threat of the explosion into the threat of coming too late. According to the moral script of the artificial scene, extraordinary measures are to be taken to obtain information as fast as possible and no obstacle should stand in the way of immediately securing the lives of thousands. The ‘ticking bomb’ scenario is instructive in this context because it disrupts another aspect of legal temporality, which is tightly interwoven with the legal modes of defuturization and retroactivity explored above. This third aspect concerns the relative slowness and the extended temporal horizon of law. Law assumes its most fundamental rules to be nonderogable, unalterable and eternal – temporal attributes that characterize law’s peculiar ‘constitutional chrononomy’ (Kay, 2000). In order to safeguard the most foundational norms, law imposes its ‘time-consuming’ proceedings. Importantly, in law ‘slowness per se is no failing’ (Scheuerman, 2004: 83). Each voice has to be heard, evidence thoroughly tested, and even the refusal to give evidence has to be accepted. Downloaded from tcs.sagepub.com by guest on March 17, 2015

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Above all, law is expected to memorize a huge archive of legal texts that it has to refer to consistently in a legally regulated manner. In fact, maintaining consistency in the judicature is proof for legal justice: equal cases demand to be treated equally. Taking time, thus, becomes a precondition for accurate legality. The scenario of the ticking bomb undermines this chrono-nomos: slowness itself is perceived to be one of the worst failings imaginable. Against law’s deceleration the catastrophic vision posits the ultimate necessity of extreme acceleration. Consequently, the strategic aim is to ‘approximate the singularity of the event through an equally exceptional response’ (Weber, 2005: 5) – a response that seeks to match the threat’s unpredictability, immediacy and velocity. This rationale, however, is highly incompatible with the time-consuming management of legal consistency. Legal reasoning that seeks to accommodate the emergency imaginary of the future becomes willing to question its most fundamental constitutional guarantees. One particularly dramatic case for this willingness occurs in the debate on torture. Confronted with the temporal imperative symbolized by the ticking bomb, it seems that ‘we no longer have the time not to torture’ (Glezos, 2011: 148). Although the legal ban on torture is absolute, i.e. non-derogable and therefore from the perspective of law ‘eternal’, there have been different proposals to accommodate it within law (Brugger, 2000; Gross, 2007). The most far-reaching proposal put forward by legal scholars aims to regulate it through issuing ‘torture warrants’ (Dershowitz, 2004). Yet the logic of the ticking bomb necessarily exceeds any normative specification. Making someone speak who is not willing to deliver information rapidly (and who, in fact, might have nothing to tell at all) releases an in-built dynamic for ever more drastic measures. Iterating the principle of proportionality, proponents of torture warrants concede that in the face of an ‘infinite evil. . . there can be no limits at all’ (Slater, 2006: 212). Through the hypothetical of the ticking bomb, law is confronted with a peculiar form of ‘risk-benefit analysis’ in which actual violence has to be permanently weighed against the potential violence to be expected (Weizman, 2012: 12). Since the expected future has the form of a catastrophe approaching with maximum velocity, every regulative effort amounts to a paradoxical rule that rules nothing out. A law which cultivates the insecurity of social expectations, which projects norms into the future and which suspends procedural safeguards in order to accelerate limitlessly – such a law amounts to a disfigured law, if one takes the legal temporalities that guarantee due process and habeas corpus as a standard for liberal law. Law, in short, has far greater difficulties than economy to accommodate the temporal orientations instantiated by the emergency imaginary. If law should adhere to the temporal pressures imposed on it, it will alter its own operative logics fundamentally, up to the point of not being recognizable as law at all. Downloaded from tcs.sagepub.com by guest on March 17, 2015

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Politics of Time In this article we have focused on the Eigenzeiten of law and economy, which become disrupted, buttressed, modified or disfigured by the emergency imaginary of the future. We have suggested supplementing the analytics of the politics of truth with an analytics of the politics of time. The aim has not been to displace the analysis of the epistemologies of precaution, pre-emption and preparedness, but to enlist them in a broader theoretical framework of social temporality. The question we have posed was: What kind of politics of time is linked to this type of modern futurity, if we understand by politics of time the challenges to or the amplifications of existing temporal patterns? What particular ‘inflection or articulation’ of the modern appeal to the future are we dealing with (Osborne, 1995: 166)? Using Luhmann’s account of the multiplex temporalities of social order, we have shown that the ubiquitous temporal form of the emergency imaginary has different strongholds in and effects on the Eigenzeiten of law and economy. We have argued that it chimes with the temporality of current financial instruments. It mirrors the structure of ‘binding and blending’ of different futurities that derivatives achieve. Furthermore, scenarios of future catastrophes do not only resonate with this operational monetary time but also serve as a device of temporal control in today’s financial risk management. Far from interrupting the objectifications of risk, on which the current circulation of capital depends, it fits the ‘arcane calendrics’ of financial time. In contrast, the emergency imaginary of the future undermines and disfigures legal temporality. It impedes the indifference towards the future, the slowness of legal procedures and the orientation to deeds already committed. Instead, the catastrophic future invites law to speculate about deeds not yet committed, to undo its forms of defuturization and to derogate its fundamental guarantees. Law changes its shape and becomes open to executive acts governed by fear of the future. On the basis of this analysis, we can concretize the politics of time linked to the emergency imaginary in two respects. First, the divergent effects of this futurity change the type of liberalism that we are dealing with. Preserving and buttressing the current forms of financial futurity while undermining the legal guarantees of liberalism is a differential effect of a transversal temporal form. Second, the emergency imaginary of the future changes the specific articulation and inflection of the modern orientation towards the future. As Peter Osborne has argued, the abstract temporal form of modernity allows for a range of possible temporalizations, meaning here the different ways of conjuring and relating past, present and future (1995: 116). How this temporalization takes place has fundamental implications for how one conceives of change or politics. In this context, the notion ‘politics of time’ does not refer to the question if there is ‘time Downloaded from tcs.sagepub.com by guest on March 17, 2015

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for politics’ in a world characterized by acceleration, which is an equally important issue (Rosa and Scheuerman, 2009). Rather, it implies that the way past, present and future are related has itself a political meaning. The emergency imaginary of the future posits a future that radically breaks with the past. Paradoxically, such understanding of the future has been the very stronghold of critical thought in the 20th century insofar as it was used to question the notion of progress unfolding in empty, historical time. For Walter Benjamin, the redemptive moment of awakening in the ‘now-time’ interrupts the course of history, which is already an ongoing catastrophe. The future in an emphatic sense would emerge as a ‘break’ in this ‘train of history’ (Benjamin, 1973). Other instances of a critical reading of the unknown future can be found. For Jacques Derrida, the unknown future is a placeholder for futurity that deserves its name: ‘The condition on which the future remains to come is not only that it cannot be known, but that it cannot be knowable as such’ (Derrida, 1996: 47). But today the political meaning of this form of futurity has radically changed. The event that breaks with the past is entirely unknown and yet not new: it is a catastrophe to be survived by means of ‘event-based capitalism’ and a post-liberal law that fits the demands of the day.

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Sven Opitz is Lecturer in Sociology at the University of Hamburg. He teaches social theory with a focus on the linkages between systems theory and poststructuralist approaches. His research addresses the temporal, spatial and material aspects of security and law. He is currently working on modes of global contagion and control. Most recent publications include An der Grenze des Rechts: Inklusion/Exklusion im Zeichen der Sicherheit (Velbru¨ck). Ute Tellmann is Lecturer in Sociology at the University of Hamburg. Her research interests are cultural economy, historical epistemology and modern political theory. She is currently working on a book tentatively titled The Hybrid Connectivity of Debt – Collectivities, Objects, Temporalities. Most recent publications include ‘Fear of the Future – Malthus and the Genealogy of Liberal Economy’, Theory, Culture & Society (2013). This article is from a TCS Special Issue on Governing Emergencies (32.2, March 2015), edited by Peter Adey, Ben Anderson & Stephen Graham.

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