Reasoning about Exceptions – Editorial for Political Theology 15.5

[Ted Smith has graciously permitted us to share here his guest editorial from the new issue of the Journal Political Theology (15.5); it will be available here for a limited time only.]

One of the most important tasks for political theologians today is the cultivation of capacities for democratic reasoning about exceptions to the rule of law. The task is important because liberal societies face – or at least believe they face – a number of threats that seem to require exceptional measures in response. The pressure to make exceptions grows stronger, even as we find ourselves with fewer and weaker resources for thinking about them.

Our capacities to reason together about exceptions have eroded with the rise of worldviews that feature networks of perfectly regular laws. These worldviews gained strength from early modern natural sciences that depended on a vision of the universe as ordered by a set of exceptionless rules. As Charles Taylor has argued, these visions of a regular natural order fit closely with emerging visions for politics that emphasized norms of fairness, equality, and the rule of law – norms that had power exactly because their logic pressed them towards universal application. Justified exceptions to these norms became as difficult to imagine as miracles that suspended the laws of nature.[1]

This drive to eliminate exceptions in political orders produced some of the greatest achievements of the modern era. Reforms like the abolition of slavery, the expansion of the franchise to all adult citizens, and the elaboration of means to hold powerful people accountable to laws all gained strength from a wariness of exceptions. Any attempt to restore exceptions or singularities to political imaginations should seek to extend these reforms rather than undermine them.

But the elimination of exceptions has also come with some cost. When exceptions become intolerable, then extraordinary actions need to be justified in relation to exceptionless rules. Justified in this way, extraordinary actions set precedents. They come to define a new normal. Understanding this process helps make sense of Walter Benjamin’s observation in 1940 that “the ‘state of emergency’ in which we live is not the exception but the rule.”[2] In recent years Giorgio Agamben has traced some of the ways that states of exception continue to be normalized and the ways these normalizations degrade both communal and individual lives.[3]

These dynamics are visible in the Obama administration’s efforts to reform the national security practices of the Bush administration. Where the Bush administration made a case for executive powers to declare exceptions to law, the Obama administration has stressed the importance of operating within the rule of law.[4] Sometimes the administration has pulled practices that went beyond the law back within the law, as in its renunciation of “enhanced interrogation techniques” that tortured detainees. But the Obama administration has also reconciled extralegal practice with law by expanding the law to cover the practice. It has, for instance, continued detentions at Guantánamo Bay and used drone strikes to kill at least three US citizens without trial – and developed policies to enfold these practices in a kind of legitimacy. Wrapped in rules, actions that once were exceptions become new norms.[5]

Accountability to the rule of law can provide a crucial check on executive power. But when exceptional actions get justified in relation to the generalizable criteria of law, they change from singularities into precedents. Such misshapen fidelity to the rule of law serves to expand and normalize emergency measures. Supreme Court Justice Robert H. Jackson warned against this danger in his dissent from the court’s decision in Korematsu v. United States (1944). The majority defended the constitutionality of the executive order that directed the detention of US citizens of Japanese descent. Jackson refused to comment on whether the detentions were necessary for military reasons. Instead, he focused on the problem with declaring the detentions to be constitutional. A military order might involve actions that went against the Constitution, but whatever legitimacy it had would evaporate with the situation to which it tried to respond. “But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution,” Jackson argued, “or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.” That principle, Jackson wrote, then “lies about like a loaded weapon,” ready to be picked up at a later time for any number of purposes. To keep the exception from becoming the rule, Jackson wrote, liberal societies might need to develop an uneasy tolerance of actions outside the law.[6]

Making room for such exceptions involves grave risks. Exceptions can become occasions for arational assertions of power, like the ones seen as tragedy in Carl Schmitt’s “decisionism” and then as farce in George W. Bush’s understanding of himself as “the Decider.” The form of exceptions tempts decision-makers to leave behind reason – and so anything like democratic deliberation. A true exception cannot be justified by appeals to generalizable principles without losing its quality as an exception and turning into a further elaboration of a complex code. But appealing to generalizable principles so dominates prevailing understandings of what it means to reason about something that it can be hard to imagine what it would be like to reason without them. We need, therefore, not only a tolerance of exceptions, but also a renewal of our capacities to reason together about them in ways that do not turn them into precedents. We need to cultivate modes of giving and evaluating reasons that are neither law-like nor decisionist, but radically singular. These modes of reasoning would be attentive to particularities of person, place, time, and situation. They would be like the reasoning of lovers who can explain why they love some one particular person without relying on standards that can be generalized.  They would be like the reasoning of preachers who discern a word for a particular people on a particular day without slipping into generalities and platitudes. They would be like the reasoning of poets who can give accounts of why they chose a particular word – and argue about the choices of others – without appealing to criteria that apply without exception to every possible poem.

Cultivating capacities for this kind of reasoning about politics will involve theoretical reflections like those of Schmitt, Benjamin, and Agamben on the exception. These reflections can be enriched by placing them in conversation with Anglo-American traditions like the one that runs through John Locke and Alexander Hamilton to make a case for executive prerogative. They can also be enriched by a deeper dive into distinctly theological traditions – on the ways Jesus is and is not unique, for instance – that provide some of our richest resources for thinking about singularities.

Renewing our abilities to think about exceptions will also involve work that gets beyond theory to history, ethnography, and other disciplines for paying attention to particular places, moments, people, and situations. If attention to such particularities is always valuable for politics, it is indispensable for attempts to think about exceptions in ways that do not assimilate them to more abstract modes of thought.  Political theologians therefore need to attend to particularities in ways that are never less – but always more – than rigorously empirical.

And, as Immanuel Kant saw, the kind of judgment involved in these modes of thinking about particular moments practically requires some wider vision of history in which those moments have whatever meaning they have. Reasoning about singularities opens onto philosophies and theologies of history.

Political theologies that pursued these lines of inquiry would not see themselves as spinning the straw of religious traditions into the gold of enlightened public policy. They would not see their first task as finding religious reasons for norms of justice, love, or other goods. Such work has contributed enormously to the reforms that came with worldviews structured by laws that applied equally and without exception to every person and situation. And such work needs to continue, as these reforms are far from complete. But they are also fragile, imperiled in part by our inability to imagine the exceptions that mark their limits. That fragility marks the need for political theologies that can reason about the exception in ways that redeem the rule.

Ted A. Smith’s most recent book is Weird John Brown: Divine Violence and the Limits of Ethics.

Notes

[1] Charles Taylor, A Secular Age (Cambridge, Mass.: The Belknap Press of Harvard University Press, 2007), 542-43.

[2] Walter Benjamin, “Über den Begriff der Geschichte,” in Gesammelte Schriften, edited by Theodor W. Adorno, Gershom Scholem, Rolf Tidemann, and Hermann Scweppenhaüser, 7 vols. (Frankfurt: Suhrkamp, 1972), I.2:697. English translation: Benjamin, “On the Concept of History,” in Selected Writings, edited by Marcus Bullock and Michael W. Jennings, 4 vols. (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1996-2003), 4:392.

[3] See for example Giorgio Agamben, State of Exception, transl. Kevin Attell (Chicago: University of Chicago Press, 2005).

[4] For one of the Bush administration’s most notorious assertions of executive power to act against the law, see this “torture memo” prepared by the Bush Justice Department: Memorandum from Jay S. Bybee, Assistant Attorney General, Department of Justice, to Alberto Gonzalez, Counsel to the President (August 1, 2002) at http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf

On the Obama administration’s emphasis on the rule of law, see, for example, John O. Brennan, “Strengthening Our Security by Adhering to our Values and Laws,” remarks at the Program on Law and Security, Harvard Law School, Cambridge, Massachusetts (September 16, 2011) athttp://www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an (accessed February 8, 2013).  At the time of these remarks Brennan served as Assistant to the President for Homeland Security and Counterterrorism. He became Director of the Central Intelligence Agency in 2013.

[5] I make a more thorough version of this argument in Ted A. Smith, Weird John Brown: Divine Violence and the Limits of Ethics (Stanford, Calif.: Stanford University Press, 2014), 46-51.

[6] 65 S.Ct. 193 (1944), at 245-46. Again, I make a more complete version of this argument in Weird John Brown, 49-50.