The Inertia of the Exception

Abstract

This chapter critically examines Carl Schmitt’s theory of the sovereign exception and its emphasis on order in the contemporary context of extended war and suspended law. Schmitt’s description of the necessity of the exception for the preservation of the state counterproductively puts legal order in crisis by creating a powerful incentive pull to extend states of emergency. Emergencies highlight perceptions of insecurity in liberal constitutional states, creating a supposedly necessary suspension of the normal legal order. While special powers and accelerated procedures seem to enhance security, they also construct new legal norms that ultimately jeopardize expectations about both the internal and external legal order. In the era of globally franchised violence, the expanding crisis of ubiquitous states of emergency as extra-legal normative orders has become critical. The sovereign suspension of law, repeated many times since the attacks of 9/11, has begun to alter the meaning of liberal democracy because the decision on what constitutes a security emergency is not subject to external review. This chapter will review US legal practice in declared states of emergency and the suspension of rights and track the evolution of expectations, starting with the assumption of a return to normalcy despite the current unchecked practices of perpetuating exceptions. This never-ending state of emergency places international order in crisis by ensuring strong incentives for sovereigns to maintain the exception—the extra-legal (and by now global) state of emergency—indefinitely.