Marcuse’s brief comments on the “defense society,” if suitably elaborated with selected works by Giorgio Agamben and Judith Butler, offers an unparalleled analysis of the current social and political dilemmas confronting the United States. Marcuse’s notion of a “defense society” implies a provocative framework from which to understand the way in which the “society of total mobilization” works via increased neoliberal emplacements in which all citizens’ lives are determined to be not worth living in the eyes of capitalism and in (...) which all life needs to be framed within contexts of violence and aggression. (shrink)

In this paper, I shall make the following propositions: in order to conceptually capture and represent the acts of political protest in a state of exception, we will need to reorient and supplement our representational apparatuses and also our theoretical frameworks for thinking about the gendered modes of protest under emergency laws and political abandonment. Through an analysis of the ‘naked protest’ of the Meira Peibis in Manipur, a ‘state of exception’ in democratic India, I shall (...) argue that a series of supplementations to our current thinking on intersectionality, bare life and political subjectivation are required if we are to make sense of political acts of resistance, refusal and disavowal of the law of exception. (shrink)

Most contemporary political theories of sovereignty – from Giorgio Agamben to Achille Mbembe – have argued that the emergency powers claimed by the Bush administration under the auspices of the War on Terror epitomized what Carl Schmitt calls a state of exception. If so, I argue, perhaps it is time for new visions of sovereignty to emerge, ones attendant to the eccentricities of the present conjuncture. Occupy Wall Street and the Arab Spring are but two obvious examples of (...) counterpublics that seem to have presented new modalities of sovereign life worth reflecting upon. Hardly states of exception, these are scenes of sovereignty that are more fraught and precarious, more democratic. I argue that the theories of sovereignty of George Bataille and Frantz Fanon may hold clues for coming to terms with these new sovereign scenes. Though often under-emphasized in the scholarly literature on Bataille and Fanon, for both thinkers sovereignty is a condition of existence, an expression of a surreal mode of esthetic experience and poetic beauty. I argue that drawing attention to the comparison of the political thought of Bataille and Fanon, and especially to the value of surrealism for contemporary political theory generally, holds promise for those of us interested in challenging the Schmittian consensus. At stake is a refreshed understanding of sovereignty, not as norm or exception, but as a condition of political life lived by everyday subjects caught in a surreal state in-between. (shrink)

Resumo: Alguns eventos políticos transcorridos em um passado recente de uma nação, como uma ditadura militar, que perdurou durante vinte e quatro anos, produzem sequelas aparentemente invisíveis, com sintomas cuja origem é difícil de ser diagnosticada. A dificuldade desse diagnóstico está na razão de que, para muitos, a ditadura militar ocorrida em solo brasileiro se aproxima do não-Ser de Parmênides: impensável e indizível, algo que simplesmente deve ser esquecido. Mas como reconciliar-se com o nosso passado e construir bases sólidas de (...) uma nova democracia se não falamos e refletimos sobre nossas mazelas fomentadas, fundamentalmente, em “nossos campos”, nos porões dos DOPS? O presente artigo tem como objetivo refletir acerca de algumas características constitutivas da ditadura militar brasileira, transcorrida entre os anos de 1964 a 1988, balizada pelos conceitos de estado de exceção, vida nua e campo do filósofo italiano Giorgio Agamben. A pesquisa se justifica, uma vez que, em nosso entendimento, aproximar a ditadura militar brasileira com tópicas da filosofia política de Agamben, nos dota de importantes ferramentas argumentativas que nos auxiliam na compreensão do que se passou no Brasil em seus “anos de chumbo”.: Some political events passed in the recent past of a nation, as a military dictatorship, which lasted for twenty-four years, produce aparently invisible sequels, with symptoms whose origin is difficult to be diagnosed. The difficulty of this diagnosis is the reason that, for many, the military dictatorship that took place on Brazilian soil approaches the not-Being of Parmenides: unthinkable and unspeakable, something that should just be forgotten. But how to reconcile with our past and build solid foundations of a new democracy if we do not talk and reflect on our ills fostered mainly on "our fields", the holds of the Departments of Political and Social Order? This article aims to reflect on some constitutive features of the Brazilian military dictatorship, elapsed between the years 1964 to 1988, buoyed by the state of emergency concepts, bare life and field of the Italian philosopher Giorgio Agamben. The research is justified since, in our view, approaching the Brazilian military dictatorship with topical political philosophy of Agamben, endows us with important argumentative tools that help us understand what happened in Brazil in his "years of lead". Key words: Brazilian military dictatorship, Giorgio Agamben, state of exception, bare life, field. (shrink)

If we are looking for an Ur-explanation for the persistence of the Ur-myth, or any other myth, in our literature, could we not more directly find it in the structure of a mind which does not have to remember in order to imitate? The occasion of both myth and literature is the social life of the species which, in Starobinski's sense, is a history of continual eviction; but as regards the apparatus of thought by which this social life is reflected (...) in art it is more a history of assimilation and repetition. "The work of the brain," to cite a recent article in Scientific American, "is to create a model of a possible world rather than to record and transmit to the mind a world that is metaphysically true…Different worlds are presumably constructed by similar species."1 And, presumably, similar worlds are constructed by similar species. Weisinger hints briefly at something like this in his essay "The Mythic Origins of the Creative Process," but one has the clear impression, as his title suggests, that he would like to have the [myth/ritual] cart before the creative horse.2 However much this may satisfy our longing to crown our literature, if not creativity itself, with a mythic genealogy, it seems a wistful hypothesis. One might just as well look upon the remains of early man's shelters, marvel that they too had roofs, just like ours, and conclude that therefore our roofs have their origin in theirs.· 1. Harry J. Jerison, "Paleoneurology and the Evolution of Mind," Scientific American, January 1976, p. 99.· 2. Herbert Weisinger, The Agony and the Triumph: Papers on the Use and Abuse of Myth , p. 250.Bert O. States, professor of dramatic arts at the University of California at Santa Barbara, is the author of Irony and Drama: A Poetics and The Shape of Paradox: An Essay on "Waiting for Godot.". (shrink)

This paper defends a principle I call Equal Treatment, according to which the rationality of a belief is determined in precisely the same way as the rationality of any other state. For example, if wearing a raincoat is rational just in case doing so maximizes expected value, then believing some proposition P is rational just in case doing so maximizes expected value. This contrasts with the popular view that the rationality of belief is determined by evidential support. It also (...) contrasts with the common idea that in the case of belief, there are two different incommensurable senses of rationality, one of which is distinctively epistemic. I present considerations that favor Equal Treatment over these two alternatives, reply to objections, and criticize some arguments for Evidentialism. I also show how Equal Treatment opens the door to a distinctive kind of response to skepticism. (shrink)

I argue that the exception must be a legitimate possibility within law as a revolutionary project, in much the same way that civil disobedience is. In this sense, the exception is not outside law if by "law" we mean not positive law as defined by extant legal documents (statutes, legislative committee reports, written judgments, etc.) but law as a living tradition consisting of both abstract norms and a concrete historical understanding of them. So construed, the exception is (...) what can be exemplary - a law unto itself that best interprets and creatively extends (and transcends) the law that already exists, in order to make it inclusive of the other. In the final analysis, immigration law forces us to consider both the concrete individuality and abstract humanity of refugees, asylum seekers and other homeless persons who have been displaced by global economic underdevelopment. When combined with the "statelessness" of desperate classes of immigrants, this fact about immigration law reveals a revolutionary possibility for future development and perfection leading to its own transcendence: from an inhospitable immigration law that is administered exclusively by the nation state to a cosmopolitan law of universal citizenship under the auspices of a global human rights regime. (shrink)

Non-uniformed combat morally infringes on civilians’ fundamental right to immunity and exacts an impermissible form of unofficial conscription that is morally prohibited even if the civilians knowingly consent to it. It is often argued that revolutionary groups burdened by resource disparities relative to the state or who claim alternative sources of political legitimacy (such as national self-determination or the constitution of a political collective) are justified in using unconventional tactics such as non-uniformed combat. Neither those reasons nor the provision (...) of public goods, however, are sufficient to justify such rights violations and this form of conscription, and it calls into question the suitability of current international legal protections for the non-uniformed. (shrink)

Introduction Paul Boshears The following excerpt from Paul Amitai's In Between States: Field notes and speculations on postwar landscapes (2012) confounds its reader. Presenting an alternate history of the State of Israel as a space station orbiting Earth, the excitement of possibilities crackles across the texts and images. Like Chris Marker's La Jeteé , the accompanying static images distort the viewer's temporality: are these archaeological items, images from a past, or a future? Why isn't this our future? In Between (...) States can also be seen as complementing Larissa Sansour's provocative science fiction works, Space Exodus (2009) which "documents" the Palestinian space program, and her Nation Estate (2012), in which Palestine is relocated into a skyscraper. Amitai's vision opens onto an intergalactic diaspora, wherein the refugees of World War II are given the stars as Western Europe continues to fight over terrestial colonies. —PFB Auditorium, Hoechst AG headquarters, Industriepark-Höchst, 2011. In 1941 an investigation by the US Justice Department exposed a marriage cartel between John D. Rockefeller’s Standard Oil (now ExxonMobil) and I.G. Farben. The two corporations had formed a joint operation in 1927 called Standard IG Farben. It was revealed that the two had shared patents in order to control prices and markets in their respective regions. Standard was accused of hiding patents from the US Navy and supplying fuel to German submarines, which lead to charges of criminal conspiracy. The Pentagon intervened, requesting that President Roosevelt stop the investigation in order to protect war production and oil supply. Roosevelt agreed, and the Senate committee investigating the matter, headed by Senator Harry Truman, was halted. Standard Oil paid a fine of $5000 and promised to stop supplying fuel to the enemies. Auditorium, Hoechst AG headquarters, Industriepark-Höchst, 2011. Furious at the decision to terminate the investigation of acts he considered treason, Truman initiated a new inquiry into Standard Oil’s war-time practices after succeeding Roosevelt as president in 1945. With the chief executives of I.G Farben simultaneously on trial at Nuremburg, Truman brokered a deal with the Allies that reduced or withdrew criminal charges leveled against both corporations in exchange for Standard Oil and I.G. Farben’s sponsorship of one of Truman’s most ambitious postwar projects—the relocation of the Jewish people. Detail, Sanofi-Aventis advertisement, 2011. The third critical player in this bold experiment was the nascent North Atlantic Space Agency. Formed by Allied forces using the seized assets and engineering expertise of Hitler’s hitherto classified space program (conquer Earth, then the stars), the North Atlantic Space Agency was a pre-NATO foray into interstellar nation building, with orbital occupation as the first point of order. By 1947, NASA was nearly ready to deploy the first manned space station. Standard Oil and I.G. Farben’s advanced fuel refinement capacities and deep, war-enriched financial resources allowed NASA to speed up their launch schedule significantly. Detail, Sanofi-Aventis advertisement, 2011. Diplomatic efforts to establish a Jewish homeland in Palestine were failing to gain traction, while post-colonial England held its ground on immigration restrictions and bands of Jews and Arabs battled over territory on the ground. More immediate was the issue of temporarily housing Holocaust survivors and refugees across scorched Europe. Leaders of the continental nations demonstrated, at best, reluctance to accommodate the Jews, who in turn were, at the least, resistant to returning to the same bloody cocktail from which they had fled. Truman used the impasse to advance a plan for NASA’s space station to be put to use as a temporary Jewish outpost, an orbital displaced persons camp, to be operated by the US Army. Detail, Infaserv Höchst advertisement, 2011. Final preparations advanced rapidly. Viewing the orbital displaced persons (ODP) camp as a solution to their immigration problem both at home and abroad, England came on board as a willing partner. Spaceship Exodus was positioned for takeoff on German farmland 20 kilometers southwest of Frankfurt. On December 30, 1947, one month after the UN General Assembly voted down the separation plan for Palestine, Exodus rocketed into the atmosphere hauling the first module of barracks designed to house 1,500 refugees. Transport vehicles arrived shortly thereafter, loaded down with leftover wartime military rations and 3,000 Jews of Russian and Polish origin. Detail, Infaserv Höchst advertisement, 2011. "The camp is the space that is opened when the state of exception begins to become the rule."—Giorgio Agamben, Homo Sacer , trans. Daniel Heller-Roazen, (Stanford: Stanford University Press, 1995), 96. Detail, Infaserv Höchst advertisement, 2011. The ODP camp proved to be a longer-term solution than originally envisioned. Additional installations were positioned to form swollen clusters of interlocking units – sleeping quarters, schools, clinics, canteens. The UN was brought in to monitor the camp following two chaotic years of US Army control in which food shortages, pandemic diseases, and rampant black market trade had brought the camp to near total collapse. No less bureaucratic or ineffectual, the UN relief agency at least had prior experience facilitating contexts of a similar magnitude and could potentially predict outcomes. Detail, Infaserv Höchst advertisement, 2011. What had been unexpected was the degree to which the camp would evolve into its own self-regulated, hive-like ecosystem where previously accepted rules of conduct were not applicable. The ODP camp was an exceptional space, a riverboat casino, an offshore research lab of social experimentation and entrepreneurial innovation. No longer Earth-bound, touching soil knotted by prescripts of Talmudic law, the camp residents were able to rationalize loopholes and detonate barriers standing in the way of absolute production. The Jewish archipelago was renamed Israel after the ancient homeland. If the temple couldn’t be rebuilt in the motherland, a post-national rhizome would sprout up in its stead. Eyes everywhere, beyond all borders. More information on the project at the author's site. (shrink)

In this highly topical book, Agamben ultimately arrives at original ideas about the future of democracy and casts a new light on the hidden relationship that ties law to violence.

Susanna Rinard has recently offered a new argument for pragmatism and against evidentialism. According to Rinard, evidentialists must hold that the rationality of belief is determined in a way that is different from how the rationality of other states is determined. She argues that we should instead endorse a view she calls Equal Treatment, according to which the rationality of all states is determined in the same way. In this paper, I show that Rinard’s claims are mistaken, and that evidentialism (...) is more theoretically virtuous than its opponents sometimes give it credit for. Not only does evidentialism not make an exception for belief, but it fits naturally into a unified, explanatorily powerful account of the rationality of intentional mental states. According to such an account, the rationality of all intentional mental states, including belief, is determined by the right kind of reasons for those states. Since the right kind of reasons for belief just are evidential considerations, this unified account entails evidentialism. I conclude, contra Rinard, that evidentialism can be situated within a general account of rationality that is at least as theoretically virtuous as pragmatism, if not more so. (shrink)

This text focuses on the grounding of the legal and political structure of the modern state and starts from the Hobbesian conception of power as absolute and unlimited power. For their part, Spinoza and Bentham argue, against Hobbes, for the need to set certain limits to power, although they each based it on radically different grounds. Spinoza's political ontology makes it easy to carry out to the end what was permitted by a factual conception of power, which opens up (...) the possibility of thinking about power in a different way, namely, normatively. The difference between the utilitarian approach and that of Spinoza is his special conception of natural law, which leads him to maintain that it can only be defended where men have rights in common, that is, where there is civil order, making the preservation of our being the justification and limit of the institutionalization of the civil order. Bentham, however, remains true to his empiricist conception and a prisoner of its shortcomings, so that he cannot conceive of the limit of power except as self-limitation. The reason is that he does not have a sufficiently consistent concept of natural rights. Bentham's conception of them as “nonsense upon stilts” makes it impossible. (shrink)

How much surveillance is morally permissible in the pursuit of a socially desirable goal? The proportionality question has received renewed attention during the 2020 Coronavirus pandemic, because governments in many countries have responded to the pandemic by implementing, redirecting or expanding state surveillance, most controversially in the shape of collection and use of cell-phone location data to support a strategy of contact tracing, testing and containment. Behind the proportionality question lies a further question: in what way does a (...) class='Hi'>state of emergency affect the proportionality of morally permissible surveillance? On the qualitative difference view, a state of emergency has the effect of suspending or altering at least some of the constraints on morally permissible action that apply under ordinary circumstances. On the quantitative difference view, the only difference between states of emergency and ordinary circumstances is that the stakes are greater in a state of emergency. If the qualitative difference view is true, then there are situations, perhaps such as the current Coronavirus pandemic, during which the proportionality condition employs a much less demanding ratio between social goods achieved and the badness of the surveillance performed. The overall objective of this article is to argue against the qualitative and for the quantitative difference view. I proceed by first setting out in somewhat greater detail how we must understand the qualitative difference view (section two). I then present a series of problematic implications of adopting the qualitative difference view and argue that jointly these give us sufficient reason to reject it (section three). This entails that our account of morally permissible surveillance should be unexceptional, i.e. the quantitative difference view: there is no morally significant difference between proportionality in ordinary circumstances and proportionality in emergencies, simply a spectrum of smaller to greater potential goods and bads of surveillance. In order to flesh out the implications of the quantitative view, I briefly sketch an unexceptional theory of proportional surveillance in exceptional circumstances (section four). The last section (five) summarises and concludes. (shrink)

For obscure reasons, courts exclude some statutorily patentable inventions (‘judicial exceptions’) from patent protection. These exclusions have been criticized for impeding innovation, contrary to the purpose of patent law. I argue that freedom requires these exclusions even if they impede innovation. Patents, like property, can be unilaterally acquired, limiting others’ freedom without their consent. Kant explains why, to reconcile property with equal freedom, only rivalrous objects in acquirers’ first possession can be unilaterally acquired. States can rightfully authorize unilateral acquisition of (...) only these objects. Drawing from Kant, I explain how patent protection conflicts with equal freedom unless patented inventions involve inventive uses of rivalrous objects external to human bodies. Enabled by inventive concepts, these uses would be impossible without these concepts, and are thus in the first possession of their inventors. I then show how the most recent United States Supreme Court judicial exception decisions limit patent protection to inventive uses of rivalrous external objects. (shrink)

Two months after the attacks of 9/11, the Bush administration, in the midst of what it perceived to be a state of emergency, authorized the indefinite detention of noncitizens suspected of terrorist activities and their subsequent trials by a military commission. Here, distinguished Italian philosopher Giorgio Agamben uses such circumstances to argue that this unusual extension of power, or "state of exception," has historically been an underexamined and powerful strategy that has the potential to transform democracies into (...) totalitarian states. The sequel to Agamben's _Homo Sacer: Sovereign Power and Bare Life, State of Exception_ is the first book to theorize the state of exception in historical and philosophical context. In Agamben's view, the majority of legal scholars and policymakers in Europe as well as the United States have wrongly rejected the necessity of such a theory, claiming instead that the state of exception is a pragmatic question. Agamben argues here that the state of exception, which was meant to be a provisional measure, became in the course of the twentieth century a normal paradigm of government. Writing nothing less than the history of the state of exception in its various national contexts throughout Western Europe and the United States, Agamben uses the work of Carl Schmitt as a foil for his reflections as well as that of Derrida, Benjamin, and Arendt. In this highly topical book, Agamben ultimately arrives at original ideas about the future of democracy and casts a new light on the hidden relationship that ties law to violence. (shrink)

Two months after the attacks of 9/11, the Bush administration, in the midst of what it perceived to be a state of emergency, authorized the indefinite detention of noncitizens suspected of terrorist activities and their subsequent trials by a military commission. Here, distinguished Italian philosopher Giorgio Agamben uses such circumstances to argue that this unusual extension of power, or "state of exception," has historically been an underexamined and powerful strategy that has the potential to transform democracies into (...) totalitarian states. The sequel to Agamben's _Homo Sacer: Sovereign Power and Bare Life, State of Exception_ is the first book to theorize the state of exception in historical and philosophical context. In Agamben's view, the majority of legal scholars and policymakers in Europe as well as the United States have wrongly rejected the necessity of such a theory, claiming instead that the state of exception is a pragmatic question. Agamben argues here that the state of exception, which was meant to be a provisional measure, became in the course of the twentieth century a normal paradigm of government. Writing nothing less than the history of the state of exception in its various national contexts throughout Western Europe and the United States, Agamben uses the work of Carl Schmitt as a foil for his reflections as well as that of Derrida, Benjamin, and Arendt. In this highly topical book, Agamben ultimately arrives at original ideas about the future of democracy and casts a new light on the hidden relationship that ties law to violence. (shrink)

Quality-adjusted life years (QALYs) are used to determine how to allocate resources to health programmes or to treatments within those programmes in order to gain maximum utility from those limited, shared healthcare resources. However, if we use those same population- based QALYs when faced with individual treatment decisions we may act unjustly in relation to that individual or in relation to the wider population. A treatment with a population-based incremental cost-effectiveness ratio beyond our willingness to pay threshold may be denied (...) to a patient even if, for that particular patient, the QALYs gained for the cost would fall within that threshold. When considering individual cases, it is proposed that we should take an individualised approach to the cost of treatment and response to treatment (‘individualised QALYs’) and a personalised approach to the valuation of health states (‘personalised QALYs’). Only if we do this, can we maximise utility and give the patient a fair opportunity to benefit. Individualised and personalised QALYs also allow us to express patient choice and religious treatment preferences in terms of utility. Individualised and personalised QALYs are explored in the context of individual funding requests in the National Health Service. In preference to the concept of ‘clinical exceptionality’, individualised and personalised QALYs provide the potential for better and more consistent decisions and improved utility. Rather than treating unequal patients as if they were equal, individualised and personalised QALYs promote fair and unequal access to resources for some of our most unequal patients. Potential challenges are also considered. (shrink)

States of exception cannot be understood in the terms of any otherwise prevailing rules or discourses. They are, after all, exceptional. They mark, by definition, special cases, anomalies, irregularities. And, because of this special status, we may of course take exception to them. Now this is not a new insight, we can all think of exceptional people for whom the rules just do not seem to apply, and exceptional situations where the normal rules just do not seem able (...) to help. (shrink)

There has been little considered reflection by Catholic theologians on the concepts of gender identity, gender dysphoria and gender transition. Seeking inspiration in the Scriptures, some Catholic thinkers have interpreted the first three chapters of Genesis and especially the text ‘male and female he created them’ (Gen. 1:27) as requiring all human beings to live in the gender role congruent with their biological sex, and have viewed the biology of sex as self-evident. This article argues that these chapters constitute an (...) appropriate locus for reflection on theological anthropology but that they need to be taken together with other texts and especially with the explicit teaching of Jesus Christ. In the Gospel according to Matthew, the one occasion in which Jesus invokes this passage from Genesis is when he draws attention to exceptional examples in nature and, in a striking phrase, states that some ‘have made themselves eunuchs for the sake of the kingdom of heaven’ (Matt. 19:12). If the Genesis text is interpreted in the light of the words of Christ, the binary division of the sexes, while ordained by God and the basis for a vocation to marry and procreate, admits of exceptions both natural and supernatural. (shrink)

At the time of writing, the multicultural ideal, if there had ever been one, within North America and Western Europe appears to be in a state of unprecedented precariousness, given recent political developments. The term "multicultural" here, and in fact in the rest of this paper, refers not to a description of the prevailing state of affairs, but to a normative attitude, reflected in public policy, that seeks a relatively pluralist approach to "culture." Apparently confirming political pronouncements by (...) then-UK Prime Minister David Cameron and German Chancellor Angela Merkel that multiculturalism has failed,2 "far-right" sociocultural politics in North America and Western Europe has achieved several popular... (shrink)

One of the most significant, incontestable, and relatively ignored aspects of modernity is the new role states play as generators and facilitators of disasters, on the one hand, and as authors — or at least facilitators, sponsors, and coordinators — of survival and relief operations, on the other hand. The relation of the modern state to disaster has played an important role in the emergence of the state as a "totalizing totality" and in the constitution of its image (...) as a historical subject. This Article argues that state’s relation to disaster and its unfolding consequences has developed in two opposite directions that should be distinguished carefully. In line with these two opposite relations to disaster, I suggest a theoretical distinction between two state formations: a providential state and a catastrophic state. This distinction is based on Agamben’s concept of "bare life," which a sovereign may forsake by declaring an exception but which it may also save by taking extraordinary measures of protection or relief. The Article examines two aspects of the difference between the two state formations. From a formal point of view, it distinguishes and discusses two different notions of sovereignty, its authority, foundation, and legitimacy, along with two different understandings of the subjectivity of the state. These two conceptions involve and are intimately related to two distinct sets of theological presuppositions and two different conceptions of the political. From a chronological point of view, the Article sketches two diverging genealogies that go back to distinct, even if related, moments in the history of the modern West. Recognizing the fact that in certain historical moments these two genealogies were intertwined and that in our time this intertwinement has yielded a rapid process of hybridization, the Article claims that this process is not dialectical, and that the difference between the two genealogies should be maintained for theoretical and political reasons alike. (shrink)

The Warring States period was without doubt a time when reason thrived. The Confucians, Mohists, and Daoists, respectively, displayed three of its intellectual inclinations. One was reason with an exceptionally prominent moral flavor, and the cultivation of human character as its object. It calls on men to uphold the dignity, tranquillity, and loftiness of their inner selves. One was reason with a very strong practical flavor, and the realization of beneficent profit as its object. It leads men to address ways (...) of maintaining the stability of society, material wealth to support men's livelihoods, and individual survival. Apart from these two, there was reason that has spiritual transcendence and human immortality as its object, and which was manifested as a tendency toward anti-intellectualism. It tries to protect individual survival and freedom of the spirit, despite social pressures. As for those mystical ideas and techniques that seemed absurd, they gradually regressed into simplistic ceremonies, fables, and symbols among the cultural workers who pursued reason. The psychological attitude of "sacrificing to spirits as if they were present" led many cultural aristocrats to distance themselves from mystical ideas and techniques. Mysticism gradually disappeared from among men of culture, especially once it became increasingly difficult for those divination methods and technical arts, used merely to satisfy concrete needs, to avoid the scrutiny of reason. Some late Warring States period texts can help us understand the direction this way of thinking took. "Xian xue" in the Hanfeizi says,When the shaman priests pray for someone, they say, "May you live a thousand autumns and ten thousand years!" But the "thousand autumns and ten thousand years" are only a noise dinning on the ear: No one has ever proven [zheng] that such prayers add so much as a day to anyone"s life. For this reason people despise the shaman priests.". (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Women on the Global Market: Irigaray and the Democratic StateNicole Fermon (bio)Best known for her subtle interrogation of philosophy and psychoanalysis, Luce Irigaray clearly also conducts a dialogue with the political, proposing that women’s erasure from culture and society invalidates all economies, sexual or political. Because woman has disappeared both figuratively and literally from society [see Sen, “More Than 100 Million Women Are Missing”], Irigaray conceives the contemporary ethical (...) project as a recall to difference rather than equality, to difference between women and men—that is, sexual difference. She characterizes relations between men and women as market relations in which women are commodities, objects, but never subjects of exchange, objects to men but not to themselves: women do not belong to themselves but exist “to keep relationships among men running smoothly” [TS 192]. Women under these conditions require imaginative ways to reconfigure the self, to subvert the melancholy and regression of masculinist economies and envisage a future in which women would not be ashamed of the feminine, would experience it as a positivity worth emulating.Irigaray contends that after the gains of egalitarian politics are carefully examined, the inclusion of women in the political arena has failed to take into account women’s distinct and different position from men, and from each other, as well as perpetuating the fiction of the “neutral” citizen, the ahistorical individual citizen of the nation-state. It is that fiction Irigaray dispels in her critique of liberal democratic politics and its creation, “citizens who are neuter in regard to familial singularity, its laws, and necessary sexual difference” [SG 112] in order to benefit the State and its laws. The subject is male; the citizen is neuter. Who is the female citizen in contemporary society? What is the ethical elaboration of the contractual relations between women and men, and between sexed individuals and the community? How do women imagine a distinct set of rights and responsibilities based on self-definition and autonomy, given the particular strictures of contemporary politics—that is, the market-driven, antidemocratic nature of the current economic national and global forces? Irigaray suggests that “the return of women to collective work, to public places, to social relations, demands linguistic mutations” and profound transformations, an embodied imagination with force and agency in civil life [TD 65].Irigaray warns that if civil and political participation is construed in overly narrow terms, if focus is on economic or judicial “circuits” alone, we overlook the symbolic organization of power—women risk losing “everything without even being acknowledged” [TD 56]. Instead an interval of recognition can expand the political to include the concerns and activities of real women, lest silence imply consent to sexual neutrality, or more likely, to women’s obliteration under men’s interests and concerns. Women’s insistence on self-definition and wage labor, on love and justly remunerated work, [End Page 120] testifies to the obduracy of women’s difference, one that is not likely to disappear. The patriarchal family is still the legal norm, even when certain exceptions are made, while enduring questions regarding women’s health and children’s physical welfare as priorities beyond market considerations are consigned to legislative obfuscation, still a political afterthought. Instead, in the US the liberal state removes the slender welfare net specific to women and children, Aid to Families with Dependent Children, and fails to provide medical coverage to those who are among the most vulnerable of its citizens. Women without access to the legal protection of sex-neutral citizenship, poor working women without language (the money for an effective “mouthpiece” to represent their distress in a court of law), are further disempowered by liberal politics’ insistence on sexual neutrality—that is, on repression or amnesia regarding the lived experiences of women.Sexual difference is key to any project of self-definition by women. Irigaray insists on the sexual nature of this self-definition, not solely for its obvious procreative necessity, but because the natural world is a source of renewal and fecundity which requires attentive interrogation and respect [SG 15]. This rebirth seems alien to the structure of male politics, which instead seem to provoke disasters (Bhopal, Chernobyl, or the current runaway... (shrink)

§ . As a corollary to the proposition that all institutions must be subordinated to the law of equal freedom, we cannot choose but admit the right of the citizen to adopt a condition of voluntary outlawry. If every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man, then he is free to drop connection with the state - to relinquish its protection and to refuse paying toward its (...) support. It is self evident that in so behaving he in no way trenches upon the liberty of others, for his position is a passive one, and while passive he cannot become an aggressor. It is equally self evident that he cannot be compelled to continue one of a political corporation without a breach of the moral law, seeing that citizenship involves payment of taxes; and the taking away of a man's property against his will is an infringement of his rights. Government being simply an agent employed in common by a number of individuals to secure to them certain advantages, the very nature of the connection implies that it is for each to say whether he will employ such an agent or not. If anyone of them determines to ignore this mutual safety confederation, nothing can be said except that he loses all claim to its good offices and exposes himself to the danger of maltreatment - a thing he is quite at liberty to do if he likes. He cannot be coerced into political combination without a breach of the law of equal freedom; he can withdraw from it without committing any such breach, and he has therefore a right so to withdraw. (shrink)

This thesis examines the key moral principles that should govern decision-making by police and military when using lethal force. To this end, it provides an ethical analysis of the following question: Under what circumstances, if any, is it morally justified for the agents of state-sanctioned security institutions to use lethal force, in particular the police and the military? Recent literature in this area suggests that modern conflicts involve new and unique features that render conventional ways of thinking about the (...) ethics of armed conflict, and the use of lethal force, as inadequate or redundant. In particular, there is an increased concern with the moral difficulties created by “non-standard” cases. This is where the police or military are obliged to operate outside their conventional contexts. In such non-standard cases, on what moral basis can (or should) state actors – especially the police and military – use lethal force? One approach argues that there is nothing morally exceptional about the use of lethal force by police or military. This says the only available moral justification for using lethal force is killing in self-defence or defence of others. In contrast, I use an institutional approach to develop a moral framework for the state’s morally exceptional use of lethal force. The institutional approach is concerned with the ends (telos) or purpose of a social institution. It says that the moral purpose of a social institution alters the moral responsibilities of its agents; what is referred to as role morality. My analysis demonstrates that there is an important moral distinction between justified killing in self-defence and state-sanctioned uses of lethal force. My claim is that police and military uses of lethal force are not morally justified in the same way as the average person’s use of lethal force (i.e. self-defence or defence of others). Instead, I argue that the state-sanctioned institutional role of police and military give these state actors special moral duties, and therefore exceptional moral justification, for using lethal force. I argue that the institutional end of the police is the preservation of public safety. This includes using lethal force where it is necessary to protect life and prevent serious injury to jurisdictional inhabitants. In contrast, a morally responsible state uses military force to defend the “common good.” That is, when it is necessary to defend the peaceful functioning of a state from armed threats or other forms of political violence. I then conclude that non-standard cases require the addition of jus ad vim (or the just use of military force short-of-war) as a hybrid element to the moral framework for the state-sanctioned use of lethal force. This provides a better way of applying ethics to the use of military force when defending the common good against serious threats in non-standard cases. This is because jus ad vim complements the conventional military paradigm by permitting the use of military capabilities to defend the common good. But, at the same time, it inhibits the move towards the more destructive levels of violence characteristic of conventional warfighting. (shrink)

Against a backdrop of non-ideal political and legal conditions, this article examines the health capability paradigm and how its principles can help determine what aspects of health care might legitimately constitute positive health care rights—and if indeed human rights are even the best approach to equitable health care provision. This article addresses the long American preoccupation with negative rights rather than positive rights in health care. Positive health care rights are an exception to the overall moral range and general (...) thrust of U.S. legal doctrine. Some positive rights to health care have arisen from U.S. Constitutional Eighth Amendment cases and federal and state laws like Medicare, Medicaid, the State Children’s Health Insurance Program, the Emergency Medical Treatment and Active Labor Act, and the Patient Protection and Affordable Care Act. Finally, this article discusses some of the difficulties inherent in implementing a positive right to health care in the U.S. (shrink)

Belgian sociologist Jean-Claude Paye has collected several of his recent essays about the suspension of the rule of law, the emergence of a permanent state of exception, abuses of authority, and the generalized condition of restriction of freedom in Western societies since 9/11 in a single volume, La fin de l'état de droit,1 now translated, updated, and published by Telos Press under the title Global War on Liberty. Paye's essays over the past five to six years have positioned (...) him as one of the leading critical voices of the post-9/11 era. His critique of the so-called democratic state—from the United…. (shrink)

As assisted reproductive technologies become increasingly popular, debate has intensified over the ethical justification for restricting access to ART based on various medical and non-medical factors. In 2010, the Australian state of Victoria enacted world-first legislation that denies access to ART for all patients with certain criminal or child protection histories. Patients and their partners are identified via a compulsory police and child protection check prior to commencing ART and, if found to have a previous relevant conviction or child (...) protection order, are given a “presumption against treatment.” This article reviews the legislation and identifies arguments that may be used to justify restricting access to ART for various reasons. The arguments reviewed include limitations of reproductive rights, inheriting undesirable genetic traits, distributive justice, and the welfare of the future child. We show that none of these arguments justifies restricting access to ART in the context of past criminal history. We show that a “presumption against treatment” is an unjustified infringement on reproductive freedom and that it creates various inconsistencies in current social, medical, and legal policy. We argue that a state-enforced policy of restricting access to ART based on the non-medical factor of past criminal history is an example of unjust discrimination and cannot be ethically justified, with one important exception: in cases where ART treatment may be considered futile on the basis that the parents are not expected to raise the resulting child. (shrink)

The uniform halting problem (UH) can be stated as follows:Give a decision procedure which for any given Turing machine (TM) will decide whether or not it has an immortal instantaneous description (ID).An ID is called immortal if it has no terminal successor. As it is generally the case in the literature (see e.g. Minsky [4, p. 118]) we assume that in an ID the tape must be blank except for some finite number of squares. If we remove this restriction the (...) UH becomes the immortality problem (IP). (shrink)

Responses to COVID-19 have been characterized by rapid border closures that have transformed the pandemic from a crisis of health to a crisis of mobility. While Canada was quick to implement border restrictions for non-citizens like refugees and asylum seekers, exemptions were made for some migrant groups like temporary workers. The pandemic marked a departure from who is considered worthy of admission to Canada. In fact, the border through restricted and securitized measures has filtered desirable versus non-desirable migrants, creating a (...) hierarchy among migrants within Canada’s immigration system by categorizing groups into those deserving versus non-deserving of admission. Deeply embedded societal discrimination and structural inequalities means that COVID-19 has exacerbated the vulnerabilities of migrant groups more than others. COVID-19 has placed an uneven burden on refugees who face increased border restrictions, significant health and safety risks, and limitations in accessing human rights. This paper documents the challenges, social and economic impacts, and exacerbated vulnerabilities border closures have imposed on refugees, asylum seekers and temporary migrants. We assess the many challenges that COVID-19 has created at the intersection of border studies, security resilience and human rights. We employ the conceptual frame of security resilience to critically analyse the dynamics of how and why border strategies have restricted migrant groups in times of crisis and amounted to an unjustified weakening of refugee rights. Finally, we argue that social resilience, which is rooted in rights-based strategies, not only ensures that societies are prepared to meet external shocks and disruptions, but that policy responses mitigate societal discrimination and inequalities. We highlight these strategies as effective mechanisms for reconciling both public health concerns and the rights of migrants to create more cohesive societies in times of crisis. (shrink)

Agritourism activities have gained importance as a mechanism for some farmers to broaden their sources of income. As businesses have pursued agritourism activities, they have been concerned about liability for personal injuries of participants. In some states, providers of agritourism activities have presented legislators with ideas for an agritourism statute to limit liability for injuries resulting from inherent risks. Four new agritourism statutes have been enacted, while six other states have adopted alternative liability provisions that may apply to some agritourism (...) providers. The agritourism statutes provide an affirmative defense to providers to eliminate liability for inherent-risk injuries. An analysis of the statutory provisions shows legislatures making choices on the assignment of liability for accident injuries and the ability of providers to obtain releases from negligence. Because the agritourism statutes impose prerequisites and do not stop meritless lawsuits, they do not offer much assistance to agritourism providers. An evaluation of policy issues suggests that legislatures might consider additional options to address agritourism providers’ concerns. (shrink)

Cet article se propose de rapprocher deux notions venues prendre une place non négligeable dans les réflexions contemporaines portant sur le droit : celle de « non-droit », construite pour penser la nature spécifique du « droit nazi », et celle d’« état d’exception », qui se voit désormais souvent associée à l’idée d’anomie juridique. Par cette confrontation, nous nous proposons de prolonger les réflexions notamment ouvertes par le concept même de non-droit : celles qui visent à penser la (...) possibilité d’un « droit monstrueux » en des termes non pas substantiels, mais bien fonctionnels. En retour, ce nouvel éclairage nous permettra de penser les discontinuités entre un « état d’exception » et un « état de non-droit ». (shrink)

Purpose This paper aims to outline how destructive communication exemplified by ransomware cyberattacks destroys the process of organization, causes a “state of exception,” and thus constitutes organization. The authors build on Agamben's state of exception and translate it into communicative constitution of organization theory. Design/methodology/approach A significant increase of cyberattacks have impacted organizations in recent times and laid organizations under siege. This conceptual research builds on illustrative cases chosen by positive deviance case selection of ransomware attacks. (...) Findings CCO theory focuses mainly on ordering characteristics of communication. The authors aim to complement this view with a perspective on destructive communication that destroys the process of organization. Based on illustrative cases, the authors conceptualize a process model of destructive CCO. Practical implications The authors expand thoughts about a digital “corporate immune system” to question current offensive cybersecurity strategies of deterrence and promote resilience approaches instead. Originality/value Informed by destructive communication of cyberattacks, this theory advancement supports arguments to include notions of disorder into CCO theory. Furthermore, the paper explains where disruptions like cyberattacks may trigger sensemaking and change to preserve stability. Finally, a novel definition of ‘destructive CCO’ is provided: Destructive Communication Constitutes Organization by disrupting and destroying its site and surface while triggering sensemaking and becoming part of sensemaking itself. (shrink)

In what sense might the authoritarian practices and suspension of legal norms as means to combat the supposed threat of “terrorism,” within and by contemporary western democratic states, be understood as a problem of and not for democracy? That question lies at the heart of this article. It will be explored through the theoretical frame offered in the work of Giorgio Agamben on the state of exception and the example of British state collusion in non-state violence (...) in the North of Ireland. The North of Ireland provides a particularly illuminating case study to explore how the state of exception—the suspension of law and of legal norms and the exercise of arbitrary decision—has increasingly become a paradigm of contemporary governance. In so doing it brings into question not only the traditional conceptualization of the “democratic dilemma” of liberal democratic states “confronting terrorism” but also challenge dominant paradigms of transitional justice that generally fail to problematize the liberal democratic order. After outlining Agamben’s understanding of the state of exception the article will chart the development of “exceptional measures” and the creation of a permanent state of emergency in the North, before critically exploring the role of collusion as an aspect of counter-insurgency during the recent conflict. The paper will argue that the normalization of exceptional measures, combined with the need to delimit the explicitness of constitutional provision for the same, provided a context for the emergence of collusion as a paradigm case for the increasing replication of colonial practices into the core activity of the contemporary democratic state. (shrink)

Since at least the second half of the 19th century, the U.S. federal government has enjoyed “plenary power” over its immigration policy. Plenary power allows the federal government to regulate immigration free of judicial review and thereby, with regard to immigration cases, minimize the Constitutional protections afforded to non-citizens. The justification for granting the U.S federal government such broad powers comes from a certain understanding of sovereignty; one where limiting sovereign authority in cases like immigration could potentially undermine its legitimacy (...) and thereby lead to something like a Hobbesian “state of nature.” One of the potential downsides of allowing the federal government to have such broad powers, however, is the potential to place non-citizens in a situation analogous to what Giorgio Agamben has called the “state of exception.” This situation appears to leave us with the following dichotomy: without something like the plenary power doctrine a political community will end up with a state of nature, but with something like the plenary power doctrine they end up with a state of exception. This essay offers a two-part response to this dilemma. First, it argues that the plenary power doctrine goes against the spirit of the U.S. Constitution, specifically the Fourteenth Amendment. Non-citizens, even undocumented immigrants, are entitled to more Constitutional protections than they currently enjoy. Second, since extending these protections is more consistent with the spirit of the Constitution, I argue that curtailing the federal government’s power over matters of immigration does not undermine its sovereignty, but promotes it. In short, with regard to immigration, it is a false but seductive dichotomy that constitutional democracies must choose between a state of nature and a state of exception. (shrink)

Carl Schmitt contends that liberal constitutionalism or the rule of law fails because it neglects the state of exception and the political, namely politics viewed as a distinction between friend and enemy groups. Yet, as a representative of liberal constitutionalism, Locke grapples with the state of exception by highlighting a magistrate prerogative and/or the right of the majority to act during a serious political crisis. Rather than neglecting the political, Locke’s state of war presupposes it. (...) My thesis is that Schmitt’s assault against Locke’s liberal constitutionalism is one-sided, and hence Locke’s militant liberalism can disarm it. In support of my thesis I shall argue (1) that Schmitt overlooks Locke’s distinction between liberty and license; (2) that, ironically, Schmitt’s conception of politics resembles Locke’s state of war; and (3) that Locke’s liberalism is militant rather than neutral because it excludes extremists from enjoying equal civil and political rights, as reasonable citizens do, to compete for political power. (shrink)

This article analyzes Giorgio Agamben’s state of exception and evaluates its implications for understanding the crisis in Nicaragua in 2018. The lens of exception fails to encourage critical questions about the complicated social and historical dynamics of Nicaragua’s contentious politics. Conflict transformation and global civil society could open a space for the social forces struggling to redefine state power and resolve the crisis.

The state of exception is mostly considered within the context of the modern sovereignty. Although the state of exception is thought within the modern paradigm of state governance, it carries a Christian context. The Christian context represents an eschatological way of power that comes in a miracle which cannot be interiorized by present. This divine way of governance therefore refers to a power which occurs as a threshold. The theological-political form of governance, which is also (...) called the divine oikonomia, shows the power of governance in creating an exception which cannot be foreseen by any current contexts. That is why the power of modern sovereignty resembles its archaic model in which the divine power of God is designated as a pure potentiality which cannot be limited within any contextuality. This article aims to explore the theological source of modern sovereignty in order to understand the very meaning of governance. (shrink)

Do extraordinary crisis situations requiring life-and-death decisions create a “state of exception” in which ordinary social, political, and ethical norms must be altered or suspended altogether? Daniel Sulmasy contends that the extraordinary circumstances of a pandemic do not require abandoning or altering ethical values and principles. Rather, “ethics as usual” ought to guide policy formation and clinical decision-making. One critical question raised by the current pandemic, and which stresses ordinary ethical standards, is whether ventilators or other scarce life-sustaining (...) resources may be unilaterally withdrawn from a patient in order to be reallocated to another who is estimated to have a superior chance of survival or better satisfies other triage criteria. In this type of situation, it is unclear what constitutes “ethics as usual.”. (shrink)

My response to Tyson Lewis’s book concentrates on two themes, seemingly peripheral to the book’s explicit content: the pertinent question of (educational) violence and the related problem of instrumentalism. I try to tackle both of them by outlining the dispute between Walter Benjamin and Carl Schmitt. The choice of Schmitt as the background for these peripheral commentaries is not accidental. The premise of Lewis’s book is that there is a link between fascism and 21st century populism and authoritarianism (in the (...) US, France, and Germany, but – as I would argue – much more prevalent in Hungary and Poland). The European version is, if not intellectually connected, then at least somehow coincident with the renaissance of the thought of the German jurist of the Weimar and Nazi era. Benjamin’s antifascist potential depends also on his power of de-potentializing Schmitt’s political theology, concepts of sovereignty and state of exception. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Miracle of MetaphorRethinking the State of Exception with Rosenzweig and SchmittBonnie Honig (bio)For the word is mere inception until it finds reception in an ear and response in a mouth.—Franz Rosenzweig, The Star of RedemptionThe legal anthropologist Carol Greenhouse opens her book on time, A Moment’s Notice, with a story recorded by Goethe, who, when traveling through Italy, observed a trial and took note of its (...) peculiar timekeeping practices. A man seated at a desk held in his hand a glass sand bottle, a timepiece. It was not immediately clear what his purpose was. But Goethe soon noticed that as the prosecutor spoke the man kept the bottle lying on its side, its sands inert, and whenever the defense began to speak the man would turn the bottle upright and restart its sand flow. When the state spoke, time stopped. The defense, however, was subject to time.The story accords well with the views of state sovereignty propounded by Carl Schmitt, who identifies sovereignty as such with the power to legally suspend law for a time by declaring a state of exception. For Schmitt, as for Giorgio Agamben, who works in his wake, the state of exception is that paradoxical situation in which the law is legally suspended by sovereign power. The ensuing condition is one in which we—or, rather, sovereign powers—are neither subject to law nor free of it but rather both, since the state of exception is itself a legal condition of alegality. Grounded in paradox—the legal suspension of law—and seeming well positioned to explain elements of the current political landscape that liberal and deliberative democratic theorists only criticize, Schmitt’s “state of exception,” I think it is fair to say, has captured the imagination of contemporary political theory.I seek to loosen its hold on our imagination by pluralizing the particular political theology on which Schmitt’s account is based and from which it draws sustenance. And I do so with the intent of highlighting the dependence of the so-called state of exception upon democratic energies and its vulnerability, therefore, to democratic action and resistance.I begin by devoting sustained attention to Schmitt’s metaphor for the state of exception—the miracle, noting that we may accept his metaphorization and yet be drawn by it to very different conclusions. Alternative conceptions of miracle, as we shall see, point not to singular sovereign ruptural power but rather to receptivity, popular power, and the importance of orientation in everyday life to divinity or sovereignty. For this alternative, I turn to Franz Rosenzweig’s theology. Another implication of the work begun here is to lay the groundwork for questioning contemporary identifications of action with event and politics with singularity. I ask whether the metaphor of miracle, normally taken to mark extraordinary, ruptural, or inaugurative politics (as, for example, by Hannah Arendt), might not license instead a turn to the ordinary, away from rupture to the everyday, from transcendence to immanence (though, as William Connolly points out, the immanent can also be ruptural [Pluralism] and, as Eric Santner points out, the rupture sought by Rosenzweig’s new thinking is one that would return us to a different ordinary [On the [End Page 78] Psychotheology of Everyday Life and “Miracles Happen”]). Motivating this exploration is an intuition: that contemporary political theory’s debates about whether political action is best seen as ordinary or extraordinary, ruptural or rule-governed, may be a reiteration of earlier debates in political theology about the status of the extraordinary—god and miracle or divine agency—in the ordinary human world. Mindful of that reiteration, and with the help of Rosenzweig’s “new theology,” we may rechart our course and see opportunities to rethink emergency politics in the state of exception in more democratic terms.A Secret Conversation?In Political Theology, Carl Schmitt, the soon-to-be-lapsed Catholic legal thinker who would later become jurist to the Nazi party in 1930s Germany, claimed that all significant political concepts are reinhabitations of theological concepts and should be treated as such. In The Enemy, an intellectual biography of Schmitt, Gopal Balakrishnan points out this is an overstatement... (shrink)

At IAPS Ljubljana conference (September 2007) Dag Vidar Hanstad and Sigmund Loland presented a paper on elite-level athletes' duty to provide information on their whereabouts, to decide between two opposing positions: is this WADA demand justifiable anti-doping work or an indefensible surveillance regime? They concluded that on moral grounds this regime is conditionally acceptable, the condition being the acceptability of a general framework and objectives embodied in anti-doping global legislative foundations (the World Anti-Doping Code). But, as they said, principled objections (...) against the system have more universal relevance, which has to be taken seriously . To take this ambiguous and intriguing conclusion a step further, I propose a legal rather than ethical approach, from the aspect of constitutional and international human rights law, and the possible clash of two legally acknowledged values - the concept of elite sport without doping, and the concept of individual human rights. This conflict between ideological or moral values and the legality of individual rights is not a novelty. This paper presents three instances of this conflict: Bernard de Mandeville's differentiation between public and private values; Eug ne Sue's parallel legal and civil morals; and the contemporary moralisation of law which conflates legality into morality. The subordination of legality to morality has potentially dangerous consequences: here, Agamben's 'state of exception' comes to mind, with his analysis of potestas and auctoritas. However, in the case of sport and the war against doping, the origin of power is not in the nation state; it originates in civil society's non-governmental national and international bodies recognised as autonomous sources of legal order. (shrink)

The paper begins with analysing Schmitt’s essential work Political Theology, 100 years after its publication. In it, the German legal philosopher formulated the concept of political theology, which indicates the relationship between the state of exception and decisionism as a form of legal-political thinking. The contribution of the paper is reflected in its emphasis on the importance of a twofold understanding of the concept of the state of exception: in the first place, as a notion of (...) the exception that funds the philosophy of law and legal theory, and in the second as the state of exception that marks the constitutional category of the state of emergency. Schmitt will insist that the question of the state of exception is not a question of a mere state of necessity or emergency but a broader philosophical-legal concept based on the metaphysical origin of voluntary decision. The sovereign is not the one who decides “in” but “on” the state of exception, which means that, according to the decisionist model, he is just establishing it. Schmitt’s controversial book rarely left anyone indifferent, so it was supported by both right-wing and left-wing political theorists and philosophers, and it must be reconsidered today as a warning about the danger of the concept of the state of exception (state of emergency), which is increasingly becoming a political issue. (shrink)

Dietrich Bonhoeffer and Knud Ejler Løgstrup were WWII contemporaries: Lutheran theologians and religious figures in their respective German and Danish communities; both active in the anti-Nazi resistance. Being involved in the resistance, Bonhoeffer and Løgstrup were required to rethink what it meant to be ethical, in particular in relation to disclosure and the telling of truth, in a situation of war. In this paper, we consider the grounds on which both Løgstrup and Bonhoeffer acted, their belief in a duty or (...) requirement to resist, in light of the more general problem presented by resistance as action undertaken in a state of exception. We investigate the distinction between the normativity of ordinary or stable time, and action required in a state of exception, using the specific example of truth-telling as a normative demand and its conflict with the exceptional imperative to lie. The example of truth-telling raises important questions about the role of agency and phronetic judgment in a state of exception. In order to determine a foundation for such judgment, we turn to the framework adapted by both Bonhoeffer and Løgstrup to ground their requirement to lie: Luther’s concept of three estates. We consider how their respective concepts of mandates and laws of life/sovereign expressions of life both illuminate and highlight the more general problem of the relation between norm and exceptional action. (shrink)

n his account of the state of exception, Agamben repeatedly relies upon what Hegel would have called emWesenslogik/em or #39;transcendental thinking#39;. Because of this reliance, the state of exception appears in Agamben#39;s account as the hidden ground of modern liberal democracies. When conceived as such a ground, it appears to be a condition of possibility that inexorably persists in the modern state. Moreover, within the state of exception all juridical order is suspended, leaving (...) no normative or juridical criteria on the basis of which to decide what the structure of any emergent political order should look like. This means that from the state of exception we can just as easily land in a totalitarian as we can in a liberal democratic or democratic socialist state. Without such criteria - lacking due to the total suspension characterizing the state of exception - Agamben#39;s own alignment with Benjaminian revolutionary messianism over Schmittian authoritarianism is arbitrary, and he leaves us with no basis for making any such decision ourselves. Drawing upon Hegel#39;s dialectic of freedom and his critique of transcendental thought, this paper argues that within the state of exception there is an implicit logic that points the way out of it. Furthermore, it does so in such a way that the state of exception is neither annexed by the structure of a predetermined juridical order along the lines proposed by Schmitt on the one hand nor posited it as a transcendental structure underlying or always preceding modern liberal democracies on the other. This alternative is overlooked by Agamben precisely because of his own insistence upon conceiving of the state of exception in a transcendent way. (shrink)