From Exceptions To Rules to Exceptions Without Rules?

by iyusufphd

Every since the events of 11 September 2001, things have just never been the same. Or so we have been told. Apparently the sun no longer rises from the east. Rumour has it that politics and law are no longer what they used to be.

We’ve been told by pundits and politicians that we are now in a new kind of war. Exceptional times require exceptional measures. Ordinary rules now have a greater number of exceptions. Our political, legal and anything else related to “national security” is now in a state of exceptional discourse.

We used to think torture was a nasty thing, to be avoided at all costs. Now even legal academics are seeking justification for torture. You don’t need to have a trial date or even charges to detain people. Arguments about human rights sit on the fringe. Civil liberties? What are they? And who cares as long as national security is protected?

Here are some difficult questions about exceptionalism that Dr AW Neal raises:

What makes an event or situation exceptional? Are there certain recognizable qualities and conditions that mark something out as being so? Does the exception bring about certain necessities and imperatives? Does the exception dictate an exceptional response? What is the relationship between the exceptional event and practices of exceptionalism? How do claims about exceptions work? How are they received? What gives discourses of exceptionalism authority? Who designates the exceptional? How do they overcome political contestation? How is an imperative and mobilizing link made between exceptional events and exceptional practices? What is at stake in the discourse and practice of exceptionalism? What are the politics of the exception?

These questions go to the heart of the relationship between liberty and security in the new world of exceptions. Indeed they challenge the whole notion and discourse of exceptionalism. Neal argues that the liberty/security dichotomy challenges the very idea of the liberal “subject” i.e. the individual having rights and freedoms. The central notion of “liberty” both protects the individual from illiberal security practices as well as to legitimate them.

The political implications of liberal principles are being heavily contested. Judgements are put into play about who is liberal and who is illiberal, who is modern and who is pre-modern, and who is normal and who is exceptional. Liberal societies must be defended, we hear, but by and from whom?

… Exceptionalism problematizes not only the liberal subject, but also liberal society and the principle of liberty itself. How do liberal societies defend themselves, and what is the relationship between their liberal identity and their security practices? How do liberal political authorities make sovereign decisions about who and what is exceptional? How can the sovereign state make exceptions to liberty in the name of liberty, or exceptions to the law in the name of the law?

Neal notes an increasing interest in the work of Nazi jurist Carl Schmitt.

In 1922, Schmitt proclaimed that ‘Sovereign is he who decides on the exception’. Schmitt argued that there is always the ‘real possibility’ of an existentially threatening exceptional event or situation that falls beyond the limits of law, liberty, rights and constitutional government. The exception, according to Schmitt, brings about a more fundamental range of imperatives and necessities that can only be answered by unlimited, unconstrained and unmitigated exceptional sovereign power. For Schmitt, security always trumps liberty and liberal politics; the exception always trumps the norm.

The increasing presence of Schmitt-type arguments is perfectly logical when exceptionnalism becomes the rule and what we understood previously as the rule of law is relegated to the exception.

AW Neal, Exceptionalism and the Politics of Counter-Terrorism: Liberty, security and the War on Terror (2010) Routledge, Oxon