The deployment of concepts like ‘uncertainty’ and ‘risk’ have become an important issue on the research agendas for International Relations theory, Political Theory and International Legal theory. In particular since 9/11 and the succeeding ‘War on Terror’ risk analysis has proliferated both in policy circles and academic debates. The debate is further prompted by the shift from reactive security politics to a precautionary politics. This shift has also affected the traditional law-enforcement paradigm, since the precautionary logic seeks to legitimise the use of coercive power and taking extraordinary measures beyond conventional politico-legal procedures.

The political role of the varying conceptions of uncertainty in itself is not a new phenomenon. Indeed, questions of uncertainty and its relation to responsibility go to the heart of politics and law. The urge to master uncertain futures and traumatic pasts has always been a powerful incentive to reformulate political and legal responsibility. After all, articulations of uncertainty offer a chance to open up new political and legal spaces. However, any attempt to master or manage uncertainty (in the name of security and stability) not only creates particular horizons of possibilities, it can also close them off. In both ways, recognising uncertainty as a precondition for political, legal, and ethical decision-making challenges conventional categories and analytical distinctions between politics and law.

Whereas much risk research has analysed the blurring of borders of key concepts as well as security practices and public-private distinctions within International Relations,Footnote ² much less attention has been paid to the effects of the mobilisation of uncertainty on politico-legal orders. Taking a cue from Derrida's claim that uncertainty is the condition of possibility for responsibility, the articles in this Special Section address how conceptions of uncertainty encompass shifting notions of accountability and practices of (de)responsibilisation in politics and law. Together, the articles explore contemporary and historical constellations in which uncertainty is mobilised and linked to strategies of government(ality) and law. The focus hence is not on what uncertainty is, but what it does in constituting, reproducing, and transforming politico-legal orders.

Overall, the general research focus can be divided into four subthemes, which run as a red thread through this Special Section. One theme derives directly from the constitutive reading of uncertainty, and concerns the shift from what Oliver Kessler dubs as ‘ontological uncertainty’ to ‘epistemological uncertainty’.Footnote ³ Whereas all articles in this section can be identified as post-positivist readings, three contributions explicitly address the limits of positivist readings of risk and uncertainty as an objective effect or an independent reality out there. From different angles, Kessler and Bartholomew Paudyn both engage with game- and contract theory, and show how this literature takes risk to be an objective phenomenon. Moreover, rationalist modelling unduly reduces uncertainty to ‘risk disguised by cognitive limitations’Footnote ⁴ (for example, lack of information or unsophisticated computational systems). Uncertainty then is reduced to choice options between fixed categories where epistemological questions – if raised at all – are secondary to ontology. As such, game theory does not provide us with many tools to analyse contemporary systemic changes and the emergence of post-national constellations that transform the very categories of politico-legal order (public/private, domestic/international, inside/outside, legal/illegal). This reconfiguration can only be understood in the context of knowledge production. By taking particular calculative frames as the given starting point for the analysis, positivist readings and rational choice models cannot capture the importance of framing and (re)presentation itself in defining the horizons of possibilities and framework for decision-making.

This point is also elaborated by Erna Rijsdijk, who further problematises the politics of representation related to the premediation of large scale violence in her analysis of the Srebrenica investigations. Whereas many policies are informed by a desire to eliminate uncertainty and risk and base decision-making on a presumed certain knowledge of given facts, she argues that uncertainty in social live cannot be mastered by techniques that replicate the technologies of the hard sciences: ‘The isolation of “facts” that are supposed to be part of a rather (military) technical chain of events in which one action is supposed to cause the next … denies the dependence of “relevant facts” on the schemes of interpretation that make them into relevant facts or not’.Footnote ⁵ She shows how analyses that rely on such positivist notions of certain knowledge, calculability and causality unduly conclude that the room for political decision-making (and responsibility) is limited. Quite the opposite, as both Kessler and Rijsdijk argue: politics can only happen in the very face of uncertainty and ultimately concerns the management of contingency. The precautionary principle that has increasingly informed decision-making as an alternative way to master the environmental and terrorist risks and tame the uncertain yet catastrophic future is only the most obvious and recent example.Footnote ⁶

This relationship between knowledge and power also informs the second theme, the shifting modes of governance in the context of the mobilisation of uncertainty. The notion of governance here does not just indicate the contemporary post-national constellation of world politics, with shared or pooled sovereignty amongst a variety of actors. Such developments beyond ‘statism’ are the point of departure for Anna Leander's exploration of the increasing privatisation of security. Public/private boundaries lose their conventional meaning as private military markets grow and risk experts gain important roles in decision-making and the execution of security tasks. However, her article at once problematises how this shift towards governance by risk professionals unduly reduces risk management to a crucial technical, scientific expertise which not only is apolitical, but also ‘best kept aloof of politics’.Footnote ⁷ Contrary to such an apolitical understanding of risk, all contributions in this Special Section argue that uncertainty and risk can be identified as a particular governmental rationality. In this modality, uncertainty does not just indicate a lack of knowledge about reality out there (as in rationalist models), but is a ‘problematising activity’ to govern and construct social order in relation to unknown, dangerous, and contingent futures.

The articles in this section thus hook up to critical approaches to (risk) governance, inspired by authors such as Beck, Luhmann, and notably Foucault's governmentality lectures. In the first article, Kessler provides an insightful discussion of what these analytics entail and how they differ. The other contributions explore shifting modes of governance in world risk society through discursive practices. It is shown how uncertainty is mobilised through a new regulatory apparatus which seeks to discipline member-states into compliance with regard to for instance UN counterterrorism measures (Tanja Aalberts and Wouter Werner) and EMU fiscal policies (Paudyn). The interesting point in relation to the section themes is not that there is more uncertainty per se, but rather how the perception of contingency (as ‘fluid art of the possible’)Footnote ⁸ informs a particular governmental rationality, which Paudyn identifies as ‘creative entrepreneurialism’. Analysing uncertainty as a specific modality of governance enables us to scrutinise how ‘the realm of the possible is structured by a net of actors, instruments, techniques and language’. In this context many articles also address the role of professional and disciplinary expertise in managing uncertainty (Leander, Rijsdijk, Paudyn, Gelev, and Kessler). As such, uncertainty language lays bare how discursive practices at once open up new horizons, and close off alternative options and interventions. These processes of ‘sense and thus world making’ constitute the politics of governance.Footnote ⁹

This politics of governance/governmentality is further explored through a third theme, which concerns how uncertainty as a particular modality of governance – which is increasingly informed by a precautionary logic – impacts on the configuration of accountability and responsibility. As both Aalberts and Werner, Kessler, and Filip Gelev argue in their contributions, the late-twentieth century risk and uncertainty paradigm projects imageries of potential catastrophic futures into present decision-making, and as such transforms the conditions of politico-legal order. Crucial is that the risk and uncertainty paradigm is more future-oriented than traditional rule-based orders. This temporality has important implications for the attribution of responsibility and accountability. Whereas traditional rule enforcement by definition deals with past behaviour, risk involves the prevention of potentially harmful behaviour. In terms of the ascription of responsibility and accountability within legal discourse, this means that it is no longer based on ‘hard knowledge’ and ex post facto responses to unlawful acts as in the traditional State Responsibility paradigm, but is reconfigured, notably via non-compliance procedures to manage uncertainty and discipline member-states (Aalberts and Werner, Paudyn). Both contributions in turn show that these practices of uncertainty as a new modality of governance do not entail a reduction of sovereign power, but rather reconstitute and transform sovereign subjectivity through the responsibilisation of sovereign actors as objects of governmentality.

The combination of risk rationality with the increasing enmeshment of public/private domains, including the outsourcing of traditional sovereign tasks, creates a whole different problem with accountability, as Leander shows in her analysis of the privatisation of security. Not only do military markets escape the usual accountability mechanisms, but the ‘preventative imperative’ of risk thinking also hampers politicisation. It presents marketisation as a technical necessity to avoid catastrophic futures. Here, we find a parallel in the turn to intelligence as an antidote to ‘surprise attacks’ and as a cover up for political accountability and responsibility (Rijsdijk). Moreover, both Leander and Gelev argue that the juridical domain is not of much help to solve the problem of accountability. Not only is it based on conventional categories of the separation of public and private – which renders their enmeshment the ‘blindspot’ of legalisation,Footnote ¹⁰ but the check and balances system fails as the risk paradigm has permeated judicial decision-making too. Rather than counterbalancing the suspension of law in risk management, Gelev's analysis of four common law cases shows that the judiciary takes pains to make precautionary measures fit the old legal categories and courts even ‘adapt’ existing legal concepts to assist the executive in preventing terrorism or crime. Likewise, as Rijsdijk demonstrates, at the international courts ideas of predictability and premeditation in case of large scale crimes against humanity are more and more represented in the rather technical discourse of military tactics and intelligence studies.

This latter point brings us to a more general discussion that forms the background to Special Section, namely the interplay between the two domains of politics and law. This discussion does not only concern the interplay of established political and legal orders, but also the politics of sense making that constitutes those orders as separate orders in the first place (Kessler and Rijsdijk). The articles in this section elaborate how various conceptions of uncertainty and responsibility play an important role in those processes. Aalberts and Werner demonstrate how through uncertainty and a process of responsibilisation, sovereignty as a core concept of international politics and international law is being redefined. Rijsdijk analyses how positivist (re)formulations of uncertainty have led to political and juridical reconstructions of the mass violence in Bosnia that give way to a process of (international) political and juridical de-responsibilisation for the crime of genocide.Footnote ¹¹ Reconstructions from each domain are interrelated by their logic of explanation. Gelev demonstrates how other legal concepts are adapted to changing ideas about uncertainty too. He speaks of a new ‘precautionary justice’ originating in a ‘politics of fear’ that ‘frees courts from accountability and responsibility as traditionally understood’. Although law is usually seen as a force that serves to check the political domain, through its precautionary politics it is less so.Footnote ¹² The borders of politics and law are also moving as a result of the marketisation of uncertainty. According to Leander, ‘risk driven governmental rationalities have contributed to the development of “apolitical” military markets’ that place the use of force outside the boundaries of politics and law resulting in a process of depoliticisation and a reduced accountability.

Overall, the articles in this Special Section demonstrate the productive power of the conceptualisations uncertainty and responsibility within and through political and legal categories and scrutinises its implications for international institutional constellations.