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  • IntroductionTaking Exception to the Exception
  • Jason Frank (bio) and Tracy McNulty (bio)

“The exception,” Carl Schmitt wrote in Political Theology, “is more interesting than the rule. The rule proves nothing; the exception proves everything. In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition” [15]. Embracing the extraordinary vitality of “the event,” while decrying the pale repetition of the norm, contemporary theoretical discourses across multiple fields and disciplines—law, political theory, theology, history, literature, and philosophy—would seem to concur with Schmitt’s high estimation of the exception “in its absolute purity.” And this high estimation has assumed an obvious and global political urgency in the wake of 9/11 and the ever-expanding “War on Terror.” This special issue of diacritics is motivated by our sense that the contemporary theoretical and political imagination is captivated by the dramatic logic of the exception. A certain picture of law and normativity seems to hold us captive, to paraphrase Wittgenstein, and our theoretical vocabularies seem to repeat this picture inexorably. The essays that follow offer critical analyses of this captivation, while also providing resources—theoretical, theological, literary, and technical—for diminishing its hold (if not definitively refuting its claims). Without retreating to a lost normativity, foundationalism, formalism, or legalism, the essays in this special issue raise a number of pressing political and theoretical questions: What conceptual rubrics are maintained and reiterated by the seemingly inexorable logics of norm and exception? What kinds of theoretical investigation are authorized and precluded by this preoccupation? How do they structure our political discussions, and direct and constrain our political options?

The timeliness of these questions is suggested by a familiar anecdote. In April of 2006 George Bush, responding to the growing criticisms of Donald Rumsfeld’s planning and execution of the Iraq War, said, “I hear the voices, and I read the front page, and I hear the speculation. But I’m the decider, and I decide what’s best” [qtd. in O’Neil]. This was not the only time that Bush identified with decision and the concomitant category of the exception; his administration’s embrace of the theory of the “unitary executive” and its unprecedented expansion of presidential power both domestically and internationally has been widely criticized for suspending the rule of law in the name of the higher law of “national security.” Bush’s invocation of the presidential “decider” was predictably lampooned by some in the media. Others, however, saw darker forces at work in this awkward invocation of sovereign decision. Alongside the often-mentioned, though seldom theoretically elaborated, influence of the work of Leo Strauss on neoconservatives within the Bush administration, some saw the influence of Strauss’s interlocutor Schmitt somewhere behind Bush’s remarks [see, for example, Scheuerman; Wolf].

“Sovereign is he who decides on the exception,” Schmitt wrote in Political Theology [5]. Sovereign is he who decides when formal law must be suspended to meet the [End Page 3] exigencies of extraordinary circumstances, especially those that pose “existential threats” to the identity of the state. There could be no doubt that in the wake of 9/11, not only the administration itself, but also large sections of the public, accepted that we were living in exceptional times, and times of exceptional danger and threat. This exceptionality was recognized both formally and informally in a myriad of legal and political developments. It was, for example, legally inscribed in the opinions placing accused terrorists outside of the Geneva Convention’s category of “legal enemy combatants” and in the emergence of a stunning array of discretionary executive powers to conduct the “War on Terror.” It underwrote the unwarranted surveillance of domestic telephone calls and financial transactions and the CIA’s creation of black site prisons in Thailand, Afghanistan, and Poland. The state of exception was also written into the National Security Strategy, with its invocation of an underspecified providential enemy, one that called for entirely new forms of warfare and defense. This exceptional state justified engaging in preemptive war, and, according to Ron Suskind’s account of the administration’s “one percent doctrine,” abandoning rational decision making practices based on evidence and...