Introduction

Since the terrorist attacks of 11 September 2001, terrorism has become a global phenomenon with terrorist attacks in numerous cities including Mumbai, Bali, Madrid, London, Boston and Nairobi. The perpetrators are arguably motivated by a resistance to perceived ‘western occupation’, they embrace, indeed perpetuate the dualism of ‘western nations’ versus Islam and Islamic nations. In order to comprehend how the harm created by terrorist actions can be appealing to its perpetrators requires an understanding of how the ‘war on terror’ discourse facilitates an alternative understanding. This alternative understanding perceives the harm creating actions as a reaction to the boundaries of difference created and instigated by the ‘war on terror’. According to Gunning (2007: 392) ‘terrorism and counter-terrorism measures kill and harm real people in real places’. The severity of harm caused by terrorism and counter terrorism measures have meant that as Deflem (2004) rightly contends, terrorism and counter-terrorism now demand criminological attention.

In the 5 years following 9/11 more books had been published on the area than in the previous 50 years (Silke 2008). The drive to explain the motivations of terrorists, the impact of counter terrorism measures and the process of radicalization has meant that terrorism has become a dominant subject. The renewed interest in terrorism has also led to a marked increase in the application of theoretical perspectives, for example the application of strain theory to terrorism by Agnew (2010). There have also been developments in proposing new conceptual frameworks, for example the merging of a symbolic interactionist framework with principles of critical restorative justice to progress terrorism studies (see Arrigo 2009). Invariably, the growing focus on phenomena such as terrorism has meant that in recent decades criminology has been challenged to develop and adapt.

The Challenges to Criminology

Early challenges came from critical criminologists such as Stanley Cohen in ‘Against Criminology’ (1988) and feminist criminologist Carol Smart (1995) who advocated abandoning criminology’s disciplinary frameworks, if not its subject matter. More recently, Zedner (2007: 268) notes how criminology ‘lacks any established, distinctive explanatory or methodological framework’. The failure of criminology to provide adaptable methodological frameworks has not only had consequences for the generation of new knowledge but through doing so, also undermines the potential for progress and more importantly, social justice. Indeed, even critical criminologists caution against remaining theoretical. For example, Arrigo (2001: 83) argues ‘the future of critical criminology… depends on being able to meaningfully transform the lives of marginalized individuals’. Similarly, Hudson and Walters (2009: 604) in their introduction to the ‘war on terror’ special issue of the British Journal of Criminology stated: ‘If criminology is to be a dynamic and evolving discipline, it must engage with these significant international events, and extend its thematic scope beyond its well-worn topics’.

Progress has been made in attempting to broaden the scope of the definition of crime (Henry and Lanier 2001) to include a wider range of harms that include crimes committed by the powerful (Box 1983; Cohen 1993; Tombs and Whyte 2003; Whyte 2009), to understand the development of state crime and lack of criminological attention (Barak 1990), the problems of persecuting those engaged in state crime (Kramer 1994) and the consequences and magnitude of the harm caused by state crime (Horowitz 1989; Kauzlarich et al. 2001; Matthews and Kauzlarich 2007; Michalowski 2009). However, as Arrigo and Barrett (2008) state some forms of behavior have continued to be subjected to criminology scrutiny more than others and therefore there has been a growing recognition of the need to borrow from other disciplines (Barak 2003; Cooney 2006; Zedner 2007). Within the ‘war on terror’ where sides have been created and discourses used to legitimize the creation of difference, an interdisciplinary and integrative framework is required (Barak 2009; Hudson and Walters 2009).

Constitutive criminology provides an affirmative postmodernist integrative holistic perspective that through the process of deconstruction exposes the underlying assumptions of socially constructed realities. In the spirit of Judith Butler’s (1992) ‘cultural revolutionary’, this requires that one assumes an activist discursive subject position, challenging and questioning the construction of social reality. Constitutive criminology is a sophisticated interdisciplinary theory which incorporates an integrative framework that offers criminologists the potential to investigate new phenomenon without imposing a self-limiting analytical framework. Phenomenology, ethnomethodology, social interactionism, social constructionism, structuration theory, post-structural theory, discourse analysis, and Marxist theory form the foundation of constitutive criminology (Arrigo 1997a). In creating an approach which draws upon so many intellectual traditions, Henry and Milovanovic’s constitutive criminology provides an adaptable framework which offers new concepts, methods and tools of analysis. This article explores the value of constitutive criminology to criminologists, highlighting how the theory encourages criminologists to avoid conceptual pitfalls, be ‘open minded’ (Strauss and Corbin 1990) and therefore, critically engage with the dominant ‘war on terror’ discourse without replicating the discourse (Smyth 2007).

Constitutive Criminology as a Theoretical Frame

Constitutive criminology takes ‘a holistic conception of the relationship between the individual and society, which prioritizes neither one, nor the other, but examines their mutuality and interrelationship’ (Henry and Milovanovic 1996: x). In this paper I use constitutive criminological holistic analysis to explore how foreign policy, UK state policies and counter terrorism legislation intersect in the ‘war on terror’. Rejecting ‘reductionism’, Henry and Milovanovic (1991: 295) develop a comprehensive theoretical approach through which it is possible to:

  1. (a)

    ‘Deconstruct what constitutes crime, victims and crime control’. This article will deconstruct what constitutes crime, victims and crime control in the ‘war on terror’ through demonstrating first, how the ‘war on terror’ discourse was created as a global discourse to provide legitimacy for international military action and national crime control measures (Hussain 2007; Welch 2008) and second, constructed the boundaries of the actions deemed necessary to eliminate and manage ‘the enemy’.

  2. (b)

    ‘Relate the use of power and discourse at the structural level to societal-level discourses’. Henry and Milovanovic (1996: 116) ‘view crime as a movement of discourse that is created and recreated by and through “relations of inequality”’. Having discussed the global ‘war on terror’, this article then explores the transitional nature of this discourse. According to Henry (1989: 9) control institutions are ‘the relations among human agents acting to police the conceptual distinctions among discursively constructed social structures’. The introduction of controversial counter terrorism legislation is explored and how the police, through maintaining the boundaries of the constructed ‘war on terror’ discourse, contributed to the existence of a new ‘suspect community’ (Panthazis and Pemberton 2009) influencing societal level discourses.

The interrelated sets that constitutive criminology provides as part of its analytical framework are explored in relation to: discourse—legislation—policing—society—individual. Therefore, through using constitutive criminology the article deconstructs the ‘war on terror’ ‘to identify harmful forms of discourse by focusing upon the interconnections between human subjects, societal structures and discursively constructed harm’ (Bak 1999: 30).

Deconstructing the Global ‘War on Terror’

The phrase ‘war on terrorism’ was first used by the Reagan administration in 1984. The phrase ‘war on terror’ was used by U.S. President George W. Bush on 20 September 2011 in response to the 9/11 terrorist attacks and in both instances it was being used to pass anti-terrorism legislation. Bush’s use of the term in a televised address was: ‘Our ‘war on terror’ begins with al-Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated’ (The New Republic Online 2006). The ‘war on terror’ has become a discourse which defined the attacks, identified the enemy and continues to justify the use of military action abroad and the introduction of controversial counter terrorism legislation. As Hudson and Walters (2009: 603) contend

The war on terror has been one of the most significant international events in the past three decades, alongside the collapse of the former Soviet Union, the end of apartheid in South Africa, the unification of Europe and the marketization of the People’s Republic of China.

Where discourses are concerned constitutive criminology focuses on the ways in which discourses are socially constructed and used to provide legitimacy. Henry and Milovanovic (1996) state an analysis of the social world must examine how structures are created and then appear to have an independent ontological status where they are real and cause human subjects harm. Arrigo (1997a) contends the theory provides a logistical way in which human agency and social structures can be analyzed through language, with language prioritized as the vehicle through which the exercise of human agency and choice of words can be related to changes in social structures. These ideas offer potential because a key problem for criminology is how social order is produced (Muncie 2000), especially where the social order produced is based on differences (see Bosworth et al. 2008. Special Issue of Theoretical Criminology).

According to Beck (2006: 139) ‘only when the word ‘war’ fell from the lips of the president—“a war has been declared on America”—did the terrorist attack become political terrorism and then global terrorism’. When analyzing this discourse as Beck (2006) rightly contends the response was socially constructed and highlights the significance of words such as ‘global’. (In the US in 2009, under the Obama administration this term was replaced with ‘Overseas Contingency Operation’. See Wilson and Kamen 2009). Howell (2006: 123) contends the phrase ‘global war on terror’ embraces ‘the expression of a polarizing vision of the world, which pits modernity against backwardness, civilization against barbarism and freedom against oppression’. The ‘war on terror’ incorporates dichotomies, with one side seen as the global enemy thereby invalidating their narratives and ‘alternative ways of knowing’ (Arrigo 1997b: 33). President George W. Bush painted a frightening picture of ‘tens of thousands’ of al-Qaida-trained terrorists ‘in at least a dozen countries’ and as Beck states it is the powerful states that ‘empower themselves by defining who is their terrorist enemy, their bin Laden’ (Beck 2002: 44). The ‘war on terror’ constructed the global enemy along a religious binary with Bush singling out the Islamic faith (Bush 2001). Terrorism became seen as the ‘dark side’ of globalization’ (Bosworth et al. 2008: 263) with Islam singled out as the major threat to Western democracies and civil society through accelerating and indeed pre-disposing terrorism (Turam 2004; Howell 2006). The recent Nairobi terrorist attacks accentuate the social construction of terrorism, highlighting how terrorism and Islam have become synonymous and how within the ‘war on terror’ discourse Islamic affiliation remains the dominant characteristic of the constructed enemy.

According to Cosgrove (2000: 252) words provide us with ‘a system of categories’ and in the constitutive criminological sense these categories represent ‘symbols’ which when taken together assist in providing a structured discourse (Bak 1999). Henry and Milovanovic write ‘constitutive theory’s view of structure asserts that it is necessary to analyze precisely how these constructions of reality become real enough to harm’ (1996: 65) and ‘how power is come upon and exercised in a manner which creates inequalities’ (Bak 1999: 29). Within the ‘war on terror’ it was the process by which language was used to legitimize state action that construction went from being an abstract discourse to a discourse that was embodied in structure and thus capable of causing subjects harm. Words such as ‘war’ and ‘global’ conveyed, and continue to convey not just the magnitude of threat and risk, but also as already stated the constructed limits of the ‘war on terror’. It was the construction of threat and security actions conveyed as being necessary which made controversial legislation appear imperative and in the quest for victory any limits, such as democracy and the rule of law have been undermined. As Welch (2004: 13) argues government officials argued that such measures were necessary to ensure national security and through doing so diminished and eroded universal values, ‘civil liberties and human rights’. Further, euphemisms such as ‘“collateral damage”, rather than the killing of civilians; “moderate physical pressure” rather than torture’ become part of the normative discourse which serves the purpose of denying ‘the psychological, political, or moral consequences’ that is part of the implied denial (Welch 2004: 11). Measures where efforts to maintain national security are institutionalized, represent the process in which social reality is created and preserved because as Bak (1999: 23) argues social structures maintain discourses through ensuring they continue in ‘everyday discourse’. Concepts of risk and threat were part of the ‘war on terror’ discourse, pervading foreign policy and national security and thereby ensuring the institutionalization of the ‘war on terror’.

Deconstructing the UK ‘War on Terror’

This section of the paper details how counter terrorism legislation was introduced as part of the UK ‘war on terror’. The section explores how in the constitutive criminological sense, British Muslims could be conceptualized as victims of crime because ‘harms of reduction or repression could be based on any number of constructed differences’ (Henry and Milovanovic 1999: 7) and the legislation introduced was based on constructed differences. According to constitutive criminology crime is ‘a phenomenon that focuses upon the reduction and repression of the human subject that is inflicted by way of inequality through the discursive practices of social structures and of other human subjects’ (Bak 1999: 28). Indeed, ‘it is necessary to explore the state, institutional processes and constitutively interrelated sets that bolster and legitimate some individuals or groups to accumulate the power to cause pain whether through cultural hegemony, organizational strategy or personal will’ (Henry and Milovanovic 1996: 174). This section examines the interrelated sets identified in the framework of constitutive criminology, which involves analyzing law and examining how ‘through the guise of law the law legitimizes actions which create harm’ (Bak 1999: 29).

The global ‘war on terror’ had an enormous impact on the UK and was used to create ‘harm, injustice, pain and conflict’ (Henry and Milovanovic 1996: 116). The criminalization of terrorism and the global risk and fear of terrorism were used to expand domestic social control, thereby reinforcing global governance and within the new security agenda, Islamic extremism was defined as the enemy of ‘new terrorism’ (Altheide 2007; Findlay 2007; Poynting and Mason 2007; Mythen and Walklate 2008). One of the notable features of the UK ‘war on terror’ was the exceptional measures taken through the inclusion of pre-crime in counter terrorism legislation. Pre-crime has an enormous capacity to cause harm because it ‘includes measures that expand the remit of the criminal law to include activities or associations that are deemed to precede the substantive offence targeted for prevention’ (McCulloch and Pickering 2009: 1). The institutionalization of pre-crime in counter terrorism legislation marked a deviation from the post-crime orientation of criminal justice (Zedner 2007), with the legislation introduced expanding the remit of the criminal law at the expense of human rights and civil liberties.

Although the UK Terrorism Act 2000 was introduced before the events of 11 September it has been included under what is conceptualized as ‘counter terrorism legislation’ because it has become part of the legislative framework used to counter terrorism. The UK Terrorism Act 2000 criminalized a variety of actions, making it a criminal offence not to disclose to the police as soon as reasonably practicable, any information a person knows or believes might be of material assistance in: (i) preventing the commission of an act of terrorism anywhere in the world, and (ii) securing the apprehension, prosecution or conviction of a person in the UK, for an offence involving the commission, preparation or instigation of an act of terrorism. The Act is primarily concerned with the prevention of terrorism, therefore criminalizing and making illegal a variety of actions which could prevent terrorism.

The Prevention of Terrorism Act 2005 (PTA) is one of the most controversial pieces of legislation to emerge. This Act allows for ‘control orders’ to be made against any suspected terrorist, whether a UK national or a non-UK national, or whether the terrorist activity is international or domestic. Control orders are preventive, designed to restrict an individual’s liberty in order to prevent a possible terrorist attack. Indeed, control orders provide very limited rights of appeal and due process. Liberty (2006) state, control orders substitute long-term punishment based on secret intelligence for charges, evidence and proof. It is for this reason that the UK Institute of Race Relations (2007) argue that control orders are forms of collective punishment, which violate natural justice and international law. The Terrorism Act 2006 was introduced as a response to the 7 July 2005 London bombings. The period of detention that this Act legitimizes, 28 days, far exceeds the period of detention used by any other European state member (Liberty 2007). Like the Prevention of Terrorism Act 2005, this Act also legitimizes punishment, however in the form of detention rather than control orders.

The legislation introduced has received much criticism because first, suspects are stripped of capacity and responsibility. Drawing on Smilansky’s (1994) discussion of ‘pre-punishment’ as Zedner (2007) says:

even if it appears almost certain that the person will commit an offence, respect for the individual as a moral agent must acknowledge a categorical “window of moral opportunity” or chance to remain innocent. To close this window pre-emptively fails to respect the moral autonomy of the individual to choose to do right (Zedner 2007 pp. 273-274).

It could be argued that pre-crime legitimizes punishment on the basis of affording suspects no moral autonomy, thereby exacerbating the differences between counter terrorism legislation and non counter terrorism legislation. The institutionalization of risk in counter terrorism legislation mediates with other forms of risk management, which as Arrigo (2013) states include cultural, symbolic and linguistic mechanisms. It is through the mediation of these various mechanisms that the larger cultural, symbolic and linguistic mechanisms in the ‘war on terror’ make the legal mechanism appear just and necessary. Suspects of terrorism are excluded from the moral community through the construction and implementation of difference (Deutsch 2006) which are based on the threat and risk of terrorism. This is defined as crime under constitutive criminology’s conceptualization of crime.

Crime is the expression of some agency’s energy to make a difference to others and it is the exclusion of those others who in the instance are rendered powerless to maintain or express their humanity… Crimes then are nothing less than moments in the expression of power, such that those subject to them are denied their own contribution… are denied their worth, are simultaneously reduced and repressed. They are… reduced from what they are (reduction) prevented from becoming what they might be (repression) (Henry and Milovanovic 1996: 116).

‘Harms of reduction refer to situations when an offended party experiences some immediate loss/injury because of the actions of others’ (Muncie 2000: 5). Suspects are repressed, they are not able to exercise autonomy because the chance to do the right thing is taken away, and further they are reduced through not being afforded moral autonomy.

Second, the construction of difference continues the dehumanization of those that might experience harm with ‘the psychological, political, or moral consequences’ denied (Welch 2004: 11). Similarly, Kauzlarich et al. (2001: 185) state ‘victimizers often do not acknowledge the degree to which their policies have caused harm’. The ‘war on terror’ discourse defined the terrorist; as Brah (2009: 137) states, a suicide bomber is not a given, but socially constructed and ‘the epistemological drive to differentiate, classify and construct typologies of ‘difference’ is a ruse of power’. It is through constructing terrorism outside the political process and democracy and the suspect dehumanized (Findlay 2007; Tadros 2007; Hudson 2008; Stohl 2008) that principles of liberalism and human rights are legitimized as not existing. In this way suspects of terrorism ‘suffer the pain of being denied their own humanity’ (Henry and Milovanovic 1994: 119). This is not to say that those responsible for terrorist acts are not, in the process denying the humanity of those that are killed or maimed; nor is it arguing that such acts do not invoke sentiments to counter their harms with other harms. However, the addition of harm through a denial of rights corrupts a system that explicitly argues for the protections provided by such rights; without those protections the harms of such denial extend to all those subsumed under the umbrella of the social construction of terrorist, regardless of whether they are in fact a terrorist. Therefore the social construction of terrorism and suspects of terrorism allows harms to be inflicted with moral impunity as illustrated in Bandura’s moral disengagement theory:

Self-censure for cruel conduct can be disengaged by dehumanization that strips people of human qualities. Once dehumanized, they are no longer viewed as persons with feelings, hopes and concerns but as subhuman objects. If dispossessing one’s foes of humanness does not weaken self-censure, it can be eliminated by attributing demonic or bestial qualities to them…. It is easier to brutalize people when they are viewed as low animal forms (Bandura 1999: 179).

In this way, using constitutive criminology it is possible to conceptualize counter terrorism legislation as a crime because the discursive practice of inequality is embedded in the legislation thus creating the dehumanization of the suspect population as the normative discourse.

Third, although a utilitarian premise has been used to justify the introduction of controversial legislation, the counter terrorism legislation has been compared with laws legislated in Zimbabwe and apartheid South Africa, a direct comparison being the detention provisions and South Africa’s apartheid Terrorism Act of 1967 (Islamic Human Rights Commission 2005). Such comparisons have been used because as Mythen and Walklate (2008) argue, the response has been absolute in the lack of rights afforded to terrorist suspects, with risk and suspicion determining punishment, in the form of control orders and detention. Punishment can only be considered reasonable where the court respects the concept of proportionality (Allan 2001), the punishment reflects the severity of the crime committed, not a crime that an individual might commit, and the punishment is both reasoned and reasonable. Therefore as Paye (2005) argues, this legislation places suspicion over fact; house arrest can be imposed not on the basis of what a person has done, but according to what they could do.

In 1998 the Human Rights Act was introduced and it became the most comprehensive system of human rights, detailing legal rights in the UK. The Act was introduced to ensure that the UK, as a European member state incorporated the rights and mechanisms to adhere to the European Convention on Human Rights (ECHR). The acceleration of risk and suspicion under counter terrorism legislation has implications for the suspect community, as risk and suspicion determine the level of rights. Counter terrorism legislation does not apply the Human Rights Act 1998 and therefore those suspected of terrorism suffer a ‘form of deprivation, reduction or repression which another group does not’ through not being afforded human rights (Henry and Milovanovic 1999: 7). In this way inequality, that of rights and justice result in harm because, as Henry and Milovanovic (1999: 7) state ‘reduction occurs when offended parties experience a loss in their standing’. In 2013 the Home Secretary Theresa May said, in a drive to curb the appeal rights of 70,000 people who face deportation every year, the Conservative party is prepared to withdraw from the ECHR after the next election (May 2013). Should the UK withdraw from the ECHR this would mark a further decrease in human rights and would mean that at the very least, foreign nationals suspected of terrorism could be deported and not afforded any rights which exist under ECHR.

Sustaining the ‘War on Terror’ and Policing

The previous section elucidated how, on the UK national level the ‘war on terror’ was institutionalized through the introduction of counter terrorism legislation. This section continues to explore the interrelated sets that constitutive criminology provides, examining how the law, particularly counter terrorism legislation impacted policing. Henry (1989: 9) states ‘institutions of social control, are the organized acting out of discursively produced “control thoughts”, whose very action reflects on the reality of that which they are organized to defend’. Constitutive criminology is particularly helpful in encouraging an analysis which allows one to explore the dialectic relationship between discourses and policing, with one impacting and maintaining the other. However, the approach not only advocates a social constructionist analysis of crime but also incorporates ideas of difference and inequality, which have been the focus of critical criminologists for many years. As Henry and Milovanovic (1991: 306) state, institutions which practice discourses in which differences are amplified, harm and oppress citizens and the police are agents who ‘both produce and sustain deviant categories’.

Although the purpose of the criminal justice system is to maintain social control, it could be argued that the police are the most powerful social control institution since it is the police that are ‘empowered to investigate crime, search for evidence, arrest suspected offenders and question them’ (Allan 2001: 2). The introduction of counter terrorism legislation had an enormous impact on policing, increasing the power of the police because many of the concepts which are embedded in counter terrorism legislation, such as pre-crime and risk became part of counter terrorism policing. Constitutive criminology views crime as a socially constructed category, ‘it is a categorization of the diversity of human conflicts and transgression into a single category “crime”, as though these were somehow the same. It is the celebration of the homogeneous’ (Henry and Milovanovic 1994: 118). Interestingly, due to the preventive nature of this legislation it encourages profiling and the celebration of the homogenous because, as McCulloch and Pickering (2009) argue, the ‘preventive’ counter-terrorism framework is concerned with targeting and managing through restricting and incapacitating those individuals and groups considered being a risk. However, what this has led to is the construction of a ‘suspect community’ (Panthazis and Pemberton 2009), a community which is vulnerable to policing suspicion on the basis of possessing certain ethnic and religious traits. And it is the presence of such traits which determines, as Zedner (2007: 274) puts it, ‘those within and without protection’, leading to the criminalization of those who are believed to commit ‘imaginary future harms’ (McCulloch and Pickering 2009: 629). It follows that because there is a lack of human rights and a pre-occupation with attributing risk, innocent people will suffer (Mythen and Walklate 2008).

In the constitutive criminological sense, can the police be conceptualized as offenders? According to Henry and Milovanovic, (1999: 7) the offender is viewed as an ‘excessive investor’ in the power to dominate others: such ‘investors’ put energy into creating and magnifying differences. Using the definition of Richardson (2004: 14) ‘Institutional Islamophobia may be defined as those established laws, customs and practices which systematically reflect and produce inequalities in society between Muslims and non-Muslims’. Richardson (2004) goes further by stating that it is such inequalities which, when they exist in institutional laws, dictate that the institution will be Islamophobic, whether or not the individuals maintaining those practices have Islamophobic intentions. Therefore, because the ‘war on terror’ introduced legislation which suspended the concept of ‘reasonable suspicion’, it is possible to contend that counter terrorism legislation pre-disposes Islamophobia.

The “Discursive Distinctions” of the ‘War on Terror’

One of the key contributions of constitutive criminology is that it provides the framework for reconnecting crime and crime control with society, seeing each field as a co-production of the other (Henry and Milovanovic 1991). Henry and Milovanovic (1996: 174) write:

We need to understand how, while exercising their own power that denies others, these institutional processes confirm the power to cause pain, and how conceptual and discursive practices allow this process to become pervasive, all-corrupting, undermining of any that seek to counter it.

This section continues to explore the interrelated sets, analyzing the impact of the ‘war on terror’ discourse, counter terrorism legislation (the law), policing (social control institution) on society. In particular, attention is paid to how the discursive distinctions, which as detailed are part of the other relational sets, indeed confirm the discourse of the ‘war on terror’ and thereby the differences that are part of the ‘war on terror’ discourse.

When analyzing the ‘war on terror’, although the UK government introduced counter terrorism legislation, governmental policies were equally as important in contributing to the ‘war on terror’ discourse. Turam (2004: 276) states ‘the key to understanding the relationship between Islam and civil society is the state’. Although the legislative response was an aggressive one, state political policy was also aggressive. In what Blair calls wars of ‘values change’ it was conveyed that ‘Muslim societies need to be forced to abandon ‘their values’ (Blair 2006) thus creating Muslims’ Islamic identities as a problem. According to Kundnani (2007: 30) the role of the state’s own policies have legitimized Islamophobia and those who were once abused as ‘Pakis’ are now also abused as ‘Muslims’. Questions of the compatibility between Muslims’ Islamic identities and British identity emerged. Islam was homogenized and Muslims were constructed as being unable to make a commitment to the nation-state (Johnson 2002; Turam 2004). It could be argued that British Muslims experienced a loss in their standing through being constructed as a threat and not according to their national identity.

Sivanandan (2008) argues that the ‘war on terror’, the loss of civil rights and the erosion of democracy are intrinsically tied to Islamophobia. Interestingly, there are similarities between the construction of the terrorist and Islamophobia because both constructions incorporate the ‘suspect and/or victim’ being dehumanized and lacking moral autonomy. Islamophobia incorporates the belief that those of Islamic faith (Muslims) are of such faith because they have no choice.

The simple idea conveyed is that the Muslim lacks individuality and autonomous existence. Muslims are thus seen as a group that cannot escape the social forces that militate against individual expression and the individual freedoms exercised in liberal democratic states (Lea 2005: 40).

Drawing on the earlier definition of institutional Islamophobia provided by Richardson (2004), which focuses on Islamophobia producing inequalities and this definition, which includes differences existing due to a lack of autonomy, the process of Islamophobia incorporates differences which lead to inequality. Ideas of difference are powerful because as Deutsch (2006) argues, power is derived from the oppressor denying the autonomy of the oppressed, a binary in which the oppressor is afforded autonomy.

The social construction of Islamophobia has been based on a failure to recognize intrinsic diversity because even as groups: ‘Muslim communities can consist of Sunnis, Shiites or Ismailis, who differ greatly in doctrine and principle’ (Lea 2005: 40). The denial of diversity has led to the construction of one identity which is seen as a threat to the nation state and in legislation denied suspects autonomy. It is through the maintenance of the imposed difference, i.e. Islam is a threat which is located in language that Muslims continue to be portrayed as the ‘other’. Islamophobia according to this standpoint is a ‘crime’. Muslims are rendered powerless because they are labeled as potential criminals. ‘They are: ‘reduced from what they are (reduction), prevented from becoming what they might be (repression)’ (Henry and Milovanovic 1996: 116). It is not surprising that ‘60 % of Muslims in the UK have considered leaving the UK since the London bombings’ (Ansari 2005: 83). Therefore, a high percentage of Muslims have concerns regarding their place in British society.

Within the ‘war on terror’ each of the interrelated sets, the international level (where the words ‘war on terror’ were first used); the UK state (introduced counter terrorism legislation and wider political policies to reflect the discourse); and the police (maintain and sustain the discourse) have not only influenced the ‘war on terror’ discourse but also acted to reinforce and thus maintain the discourse. According to constitutive criminology ‘one of the major causes of conflict and harm in societies… results from people investing energy in these “discursive distinctions”, believing in their reality and defending them and imposing them on others’ (Henry and Milovanovic 1999: 5). Therefore through using constitutive criminology it is possible to see how the ‘war on terror’ discourse has become a ‘normative discourse’ that influenced societal relations and indeed led to an increase in Islamophobia (see Sheridan 2006).

Marginalized Discourses

However, although the ‘war on terror’ discourse has become ‘pervasive’, maintains ‘conceptual and discursive practices’ and seeks to undermine ‘any that seek to counter it’ (Henry and Milovanovic 1996: 174), other non state centric discourses do exist. In this way constitutive criminology, whilst providing the framework to explore dominant discourses which cause harm does not discount other, marginalized discourses. Where the ‘war on terror’ is concerned, some critics claim that the war on terrorism is truly a war on Islam itself. According to a Guardian newspaper poll many Muslims see the war against terrorism as a war against Islam (Travis 2004). Internationally it has been stated that when the administration said ‘war’ it meant war in the sense of people being commanded to go and kill other people (Garton-Ash 2006), with critics arguing that the ‘war on terror’ has been used to justify human rights abuses (Amnesty 2009). In March 2009, the International Commission of Jurists said the term had given the Bush administration ‘spurious justification to a range of human rights and humanitarian law violations’ including detention practices, and interrogation methods that the International Committee of the Red Cross has described as torture (Wilson and Kamen 2009: 1). It is for these reasons that Hudson and Walters (2009: 604) state that ‘for numerous commentators, the war on terror has been a political, economical, environmental and humanitarian failure of colossal proportions’. Indeed, some politicians in Britain such as Hilary Benn have observed that the phrase actually empowers the very groups who want to cause harm and the Director of Public Prosecutions Sir Ken MacDonald, said ‘It is critical that we understand that this new form of terrorism…. encourage a fear-driven and inappropriate response… it can tempt us to abandon our values’ (Reynolds 2007).

The ‘war on terror’ has become a dangerous phenomenon both in terms of the terrorist attacks and the reaction to these attacks. However, if 12 years after the creation of the ‘war on terror’, the threat of terrorism is to be reduced or even eradicated, understanding, rather than privileging should be the aim so that we can provide ‘an alternative vision’ (Henry and Milovanovic 1996: 205) to military action abroad, the immense power exercised in labeling ‘rogue’ nations as terrorist nations, and to the violation of due process (presumption of innocence, right to silence, the right to a fair trial) and civil rights.

Discussion

The purpose of this article was to explore the ‘war on terror’ through using constitutive criminology to examine the consequences of the actions of those who govern in order to contribute to critical engagement on the ‘war on terror’. The ‘war on terror’ is a discourse that has impacted foreign policy, UK state policies, social control institutions, human rights… and constitutive criminology provided a framework where it was possible to analyze the dialectic relationship between discourse and structure. Constitutive criminology encourages critical criminologists to deconstruct the process of harm, unravel the mechanisms of how such discourses come to exist and places the impetus on criminologists to explain how discourses develop an ‘ontological neutral status’ that individuals invest in. At a time when the United Kingdom Independence Party is gaining popularity and the Home Secretary is suggesting that the UK withdraw from the European Convention of Human Rights, constitutive criminology has much to offer criminological analysis of emerging discourses that incorporate the categorization of difference and have the capacity to impact social structures. Through merging concepts of power, difference and interrelated sets the approach encourages an analysis where the harmful consequences of discourse can be grounded.

It could be argued that in the ‘war on terror’ crime has become a fluid entity, because the inequality that leads to repression and reduction in not merely present in discourse but also social structures. Through using constitutive criminology it has been possible to reveal the transient nature of crime in the ‘war on terror’ and how this harm producing discourse has in fact legitimized the ‘discursive practices of social structures’ (Bak 1999: 28) and therefore the infiltration of crime through the construction of ‘difference’. As part of this analysis each interrelated set could represent a further step towards the ‘ontological neutral status’ of the ‘war on terror’ whereby the greater the investment in this discourse the greater the marginalization of other discourses.

Constitutive criminology has provided a non state centric perspective to the ‘war on terror’ and through encouraging critical theoretical engagement it has been possible to see how at the macro level the UK state actively manufactured a victim discourse which was used to legitimize the expansion of social control and at the micro level how the state, as instigators of difference and therefore perpetuators of crime and harm created victims that are vulnerable, reduced and disempowered. Therefore the theory through offering a holistic and yet deconstructed apparatus of tools merges non state defined harms, which have been outside the realms of criminology with a progressive critical criminology that is cable of doing what ‘politicians avoid and what academics must’—examining ‘the actions and consequences of those who govern’ in the ‘war on terror’ (Hudson and Walters 2009: 607).

At a time when discourses like the ‘war on terror’ have caused a considerable amount of harm, it could be argued that critical criminology should not only question the social construction of discourses but also state centric discourses since it is the state that has the greatest capacity to impact social structures and implement policies that curtail human rights through the exacerbation of differences. Constitutive criminology is unique in offering a perspective that incorporates the deconstruction of discourse, the social construction of crime, the exercise of social control and thus provides a framework in which it is possible to analyze the core issues that constitute critical criminological enquiry.