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...this article different notion of exception is examined. It refers to a particular method of conceptualizing the nature of international political order. The exception defines political order by means of constitutional-legal reasoning in which different understandings of the nature and status of international law and its political transgressions describe competing visions of international political order. The focal point of this international politics of exception is not the traditional distinction between liberal and realist views of international politics but the constitutionalist triad of normativism, decisionism, and institutionalism. KEYWORDS: exception, international law, normativism, decisionism, institutionalism.
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For many, the acts of violence on September 11, 2001, in the United States created exceptional times in international politics. The prime minister of the United Kingdom, Tony Blair, marked a moment of millennial change: "In retrospect, the Millennium marked only a moment in time. It was the events of September 11 that marked a turning point in history, where we confront the dangers of the future and assess the choices facing humankind." (1)
Two years later, during the legitimacy crisis over the war on Iraq (March 2003), Kofi Annan, the Secretary General of the United Nations, similarly spoke of the end of the global security order that was institutionalized after World War II: "We have come at a fork in the road.... This may be a moment no less decisive than 1945 itself, when the United Nations was founded." (2)
But what does it mean to speak of exceptional international politics?
In one sense the concept of exception is a descriptive category referring to a radical change in the systemic conditions of international politics. References to a fork in the road and a turning point in history are used to describe a factual situation that may have made it impossible to continue as before. In this article I examine a different concept of exception. Here exception refers to a method of conceptualizing the character of international political order by means of constitutional-legal reasoning. (3) This method combines a particular philosophical understanding of the relation between order and exception with constitutional accounts of the question of political order at the interstice between the rule of law and the transgression of law.
Philosophically, exception refers to the idea that order is constituted in the definition of what is exceptional to it, what is seemingly its outside. (4) The exception is not a secondary phenomenon that identifies challenges to an established order that exists independently of its exceptions; rather, order is rendered through the articulation of exceptions. (5) Order is thus not constituted by declaring basic normative, cosmological, and/or religious principles against which one can measure exceptional events, but the other way around. Order-defining principles are constituted by means of declaring and identifying exceptions. In other words, the norm does not define the exception but the exception defines the norm.
This philosophical concept operates at a high level of generality. It reaches across or can be applied to different areas of human practice, including art, politics, love, and religion. (6) As a concept in the theory of political order, this philosophical perspective mostly translates into a method that defines international politics by means of identifying the nature and status of an international rule of law and the legitimate conditions of its political transgression. The concept of "international politics of exception" refers to competing definitions of this relation between law and politics. In this understanding, debates about the ordinary or extraordinary nature of events such as those of September 11, 2001, are traversed by competing visions of international political order that rest on different interpretations of the international rule of law and the nature and legitimacy of its political transgression.
This particular conception of the exception is at work in some of the central interpretations of the political significance of the events currently signified as "9/11." Moreover, as I argue, debate about these events is not primarily structured along the traditional distinction between liberal and realist views of international politics but by the difference between the constitutional theories of normativism, decisionism, and institutionalism. In this article, I propose to develop this argument by reading some of the prominent European legal and political constitutional theories of the 1920s and 1930s into debates about international order, security, and law after September 11, 2001.
Why is this concept of exception and the theoretical triad of normativism, decisionism, and institutionalism of interest for international studies? Since 1989 "fantasizing about how to order international politics" has been very much in vogue. (7) Sociological and legal debates about the extraordinary nature of situations, the status of international law, and the legitimacy of the suicide pact rule ("the exceptio for that very small group of events that warrant or even require unilateral action when the legally designated institution or procedure proves unable to operate" (8)) have played an important role in framing international politics since the end of the Cold War. (9) Debates about the legitimacy of humanitarian intervention, the constitution of an International Criminal Court, the crisis of the United Nations, and the legitimacy of pre-emptive warfare are just a few examples of cases in which constitutional-legal reasoning has played a prominent role.
The concept of exception that is examined in this article also opens an important question for security studies. Constructivist and poststructural analyses of insecurity have emphasized that the rendition of enmity has constitutive effects; that it is an order-constituting device. (10) The concept of international politics of exception shows that the ordering effects of security policy do not simply follow from identifying threats and from role-taking as enemies. (11) They also depend on the specific method of framing the interaction with and between enemies. (12) Constitutional-legal reasoning is such a method, one that is currently playing a prominent role in the debates about international politics and insecurity.
The argument is developed in four sections. The first introduces two ways in which the constitutional-legal concept of exception has been used in international studies and how they differ from the notion of "international politics of exception" that is developed here. The following sections introduce the three main constitutional-legal approaches to the question of exception--normativism, decisionism, and institutionalism--and how they go beyond the distinction between liberal and realist theories that has come to inform many accounts of international relations. These approaches are discussed with reference to some of the central competing interpretations of the political significance of international developments post 9/11.
Exception: A Concept in the Theory of International Political Order?
The exception is a complex concept in the theory of state, but for the purpose of this article I focus on a constitutional-legal concept of exception. (13) The latter identifies the tension between rule of law and the political practice that seeks to transgress it as the central problem of political order. This notion of exception embraces two issues: (1) the principle of legality and its limits, and (2) a constitutional concept of sovereignty.
The principle of legality is one of the defining principles of liberal democracy. It refers to the subordination of political decisions to the rule of law. (14) The latter restrains the arbitrary exercise of political power by means of a generalized system of rules and a system of checks and balances between the authoritative functions of the state (i.e., executive, legislature, and judiciary). Only exceptional conditions can legitimize a disproportionate increase of executive power and other transgressions of the rule of law beyond what would be normally acceptable within the constitutional framework. Among the classic examples of such transgressions are rule by emergency decree, state of siege, and suspending parliamentary decisionmaking in case of war.
The constitutional notion of sovereignty identifies a constitutional boundary issue. It refers to a highest form of political authority that is reined in by a legal system but that is also constitutive of this system. The concept of sovereignty thus names the boundary between legally circumscribed political practice and political practice that transgresses these circumscriptions. (15) In the name of sovereignty, concepts of political order are constituted by means of working these two conflicting notions of politics into one another. The "politics of exception" refers here to contexts in which the question of sovereignty, that is, how to conceptualize the boundary between constitutionally defined political authority and transcendent political authority, is a political stake.
Although the constitutional-legal concept of exception is formulated most explicitly within theories of the state and has been worked out mostly within the context of domestic politics, it also operates in theories of international relations. First, international crises and, especially, wars provide archetypical grounds for the politicization of the limits of legality in domestic politics. This aspect of the exception is, for example, central to the theorization of security developed by Ole Waever, Barry Buzan, and their colleagues at the former Copenhagen Peace Research Institute in the 1990s. (16) They theorize security as a speech act that makes the survival of the constitutional order the stake of the political game. Securitizing moves are a rhetorical device that seek to legitimize exceptional policy measures. Securitization implies a move from "normal" politics contained within constitutionally defined rules of political engagement to exceptional politics, for which the constitutional rules do not hold (or at least do not provide the restraint one would normally expect). Conceptualizing security practice in these terms thus makes the exception a key concept in the theory of security politics.
This way of introducing the concept of exception in international studies does not really relocate it from domestic politics to the international system. The international system hosts the crisis situation that triggers domestic debates about the limits of legality and the legitimacy of radical increases in executive power. The political debate about the legitimacy of exceptional politics thus remains focused on the impact of securitizing moves on the nature of liberal democracy within states.
The concept of exception is also present in international studies in another modality. It functions sometimes as a foundational category that separates domestic from international politics. One of the historical functions of the concept of sovereignty has been to territorialize the legal boundary problem I have referred to above. (17) Sovereignty identified a split between the inside of a territorial state in which politics is firmly embedded in the rule of law and an outside or interstate world in which politics largely operate arbitrarily, that is without being tightly circumscribed by rule of law. (18) In this reading, sovereignty constitutes the international as a realm in which the exception (the exercise of political power unrestrained by rule of law) is the rule. The exceptional nature of international politics is one of the bases upon which international studies claims a separate disciplinary status, one that makes it different from political science and law.
In this reading the exception is a concept that bears more directly upon understandings of the character of international political order as such. However, it has only a limited use in the theory of international politics. It identifies two forms of politics (politics within the rule of law and politics as the arbitrary exercise of power) and locates them in separate realms (domestic and international). It thus introduces a boundary question for international and political studies. But as a result it suggests that the question of exceptional politics (that is, the limits of...
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