State of the Non-Exception: Sovereign Creativity Beyond the Juridical

According to theorist and American University in Cairo professor Graham Harman, “one of the most important decisions made by philosophers concerns the production or destruction of gaps in the cosmos. That is to say, the philosopher can either declare that what appears to be one is actually two, or that which seems to be two is actually one” (Harman 2). This paper examines the philosophical gap created by the state of exception, recognized as distinct yet instrumental in the definition of the sovereign expression of power, as identified by German political theorist Carl Schmitt. From this recognition, the paper proposes a subsequent closure or destruction of an aspect of the Schmittian gap through the analysis and claim that the framing of the exception is implicit to the epistemological construction of creative sovereign power. The paper furthermore claims that, through a reading of Schmitt’s Political Theology, this epistemological non-exception — a quantum indeterminancy of the possibility for exception that resides at a superposition of radical potentiality outside the instantiation of materialized exceptions (as non-geometry would be to the instantiated model of Euclidian Geometry) expressed through juristic decision — already resides within Schmitt’s exception but is subsequently de-emphasized in the 1922 analysis. Through the analysis of contemporary explorations of the exception, particularly informed by an epistemological opening brought forth by Agamben and consequentially interpreted through the loosely described radical meta-epistemologies of “possibility or fiction becoming real” of Laruelle and Negarestani, the claim is advanced for a model of a non-exception that is latent across the epistemological power-production system. The non-exception, it is therefore argued, is the consequence of the creative fiction-writing act of the sovereign in the construction and exercise of exception and law.
Fenrir and Tyr
Exceptional Topology
In a topological map of sovereign expression, where does the exception reside? In response to the rationalists’ exclusion of the exception, a reaction to the seeming irrationality of the exceptional terrain that exceeded analytical and scientific measure, Schmitt’s analysis constructed a conceptual Venn diagram that carved sovereign expression into two: codified law and exception. Instead of rejecting the exception as an incoherence or error in the law, Schmitt recognized a situational law from which both exacted and excepted expression was included: “The sovereign produces and guarantees the situation in its totality” (Schmitt 15). By dividing sovereign law into codification and exception, Schmitt illuminated the fabric that binds them both.
Of even greater importance was Schmitt’s recognition of the exception as event, within the durationality of sovereign engagement in the law. Beyond the static representation of sovereign code and non-code in a sociological Venn-space, the law was thrown into time and observed to be functioning particularly at the moment of juristic decision. “It would be a distortion of the schematic disjunction between sociology and jurisprudence if one were to say that the exception has no juristic significance and is therefore ‘sociology.’ The exception is that which cannot be subsumed; it defies general codification but it simultaneously reveals a specifically juristic element – the decision in absolute purity” (Schmitt 13). It is this accounting for chronos, specifically in the recognition of the exception as an occurrence at the moment of decision after the formation of the law, that requires calling into question. While Schmitt acknowledges the capacity for the exception to exist beyond codification, particularly in its totalizing occupancy, he suggests its most manifest appearance is in the expression of sovereign authority through the juristic narrative of the decision. Specifically, “the exception appears in its absolute form when a situation in which legal prescriptions can be valid must first be brought about. Every general norm demands a normal, everyday frame of life to which it can be factually applied and which is subjected to its regulations” (Schmitt 13). The most pronounced expression of sovereign authority is in its judgment, according to Schmitt: the citizen stands awaiting law or exception before the seated sovereign resting upon his throne.
Yet while the intent of the exception is the rule over chaos through the construction of normative narratives manifest in contract and law, Schmitt appears to recognize that the problem is further upstream in epistemological navigation. Requiring homogeneity in normative narration for legal order, “a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists” (Schmitt 13). Yet normativity cannot be constructed at the tail end of the process; it is an ingredient implicated in the epistemological soup from which an instantiated politics is nourished. Juridical determination and judgment certainly informs society, particularly as an expression of sovereign-epistemological interpretation through the laughter, scowl or condemnation of the sovereign at the interpretive application of the law, this trailing action is much too late: the moans and organic leakages of the recently-impaled citizens marking the path toward the castle of the penultimate sovereign, Wallachia ruler Count Vlad III, conveyed a confirmation of imperial Potestas as a strong power understood through acts and edicts, but leaves insufficient understanding of the fictional writing of sovereign Auctoritas. Vlad the Impaler, like all good sovereigns, was first and always a great writer of fiction.
Hyperstitional Author
In the etymological indications latent within the Latin Auctoritas, from which Agamben notes a connection to the root Latin auctor (author) and authorship, the auctor is “the person sui iuris (the pater familias) who intervenes – pronouncing the technical formula auctor fio (I am made auctor) – in order to confer legal validity on the act of the subject who cannot independently bring a valid act into being” (Agamben 76). From this authorship of construction and bringing-into-being, the possibility for topological reunification of Schmitt’s opening definition of the sovereign as the author of the decision-exception may be radically reconstructed into a new claim that:

Sovereign is he who narrates the law from the hyperstitional potential of the non-exception.

Given that this assertion may take some unpacking in order to digest, one should first assume a topological “concept space” of all potentiality. This lumpy plane of pregnant conceptual chaos is the epistemological fabric, hyperreality or superposition from which all combinations expressible at any time are realized. Numerous poststructural philosophers have contributed to this topological space of unrealized epistemological potential, from Michel Serres and a sea of chaos from which islands of order may emerge (the author’s approximation of Serres Genesis) and Francois Laruelle’s radical superposition of non-philosophy and the concept of the One, to German poststructuralist Niklas Luhmann’s conception of autopoiesis and autoemergence, from chaos into order.
Connecting to the gap Schmitt recognizes in the Venn diagram of “exception and law,” we can subsequently place the exceptional-codified duality firmly within instantiated space of the realized and actualized. As a construct that is no longer unimagined, the exception is instantiated through the construction of the sovereign, driven perhaps by the state of emergency or crisis, but also by opportunity for the realization and formation of new powers: rarely is sovereign expression solely constituted by mere reaction.
Within the topological space of all potentiality, the pregnant void, the sovereign must certainly effectuate a construction of the law from this raw epistemological fabric. But how does this assemblage of the law occur? While Schmitt provides us with an account of the exception’s application following the law’s formation, its ancestry is left unquestioned. How did the law arise and who authored its interpretation? From what fabric is the narration cut? What deals were made and lies told to negotiate its insertion? Beyond the interpretation of an already-written law, what is absent in both Schmitt and Agamben’s analysis of epistemological creation is a linkage that connects the radical framework of potential realization to the political movements of the sovereign
It should subsequently be proposed that the greater role of the exception is in the framing and maintaining of the law itself. This is a matter of writing new fictions, or more specifically, fictions that are intended to be hyped, experimented with, and considered for their utility in becoming real interpretations that construct meaning. For the sovereign, Negarestani’s hyperstition, understood as “a fictional work or belief system that somehow gradually takes on the appearance of reality” (Szulborski) is a new interpretation of that which may become law but isn’t yet. From this conceptual appropriation, the sovereign borrows from the archives of the non-exception (the not-yet-realized exception that lurks awaiting extraction from the void) and presents a new fiction outside of the codified law, creating and experimenting with the potentiality of the radical construction. This is the Happy Hunting Grounds on the sovereign’s private estate, the grounds for game and sport that are limited to sovereign privilege, for the construction of new narratives which may, if useful, become law and/or exception. New powers, certainly those necessary due to Schmitt’s unforeseen contingencies but also those which adapt and advance sovereign influence commensurate with social and technological advancement.
As Agamben examines Schmitt’s exception in its contemporary application in the Guantanamo detention camps of then United States President George W. Bush, the non-exception finds itself illuminated in the drone warfare of his successor, President Barack Obama. Confronted with campaign commitments to conclude the extra-legal detention camps and equally constrained by a pragmatic realization of the depletion and exhaustion of neo-liberal terror-eliminating idealism, the necessity for creative narration was immanently realized as the Obama administration sought solutions from the archive of the non-exception. Classified target lists constructed and executed without juristic intervention, kill lists reviewed and ‘actioned’ by a select executive panel and approved by the sovereign himself, actualized a technocularcentric hunting ground for the play of new sovereign authority.
Sovereign power rarely rests, evolving and radicalizing as necessitated for its survival. Schmitt’s conception and Agamben’s advancement of the theory of the exception appropriately unites the exceptional and codified law into a common topology and furthermore propels it into the durationality of sovereign event-space. Residing on the inheritance of a structuralist past from within which the law is always previously written, the prior interpretation lacked sufficient acknowledgement of the creative authorial power of the sovereign, particularly in the engagement and play with the potentiality of the non-exception that, given hyperstitional treatment, becomes juristic material for a not-yet-codified law.

Works Cited

Agamben, Georgio. 1998. Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen. Stanford University Press.

Agamben, Georgio. 2005. State of Exception, trans. Kevin Attell. University of Chicago Press.

Foucault, Michel. 1969. The Archaeology of Knowledge, trans. A. M. Sheridan Smith. London and New York: Rutledge, 2002.

Foucault, Michel. [1975-1976] 2003. “Society Must Be Defended: Lectures at the Collège de France, 1975-1976”, trans. David Macey. Picador, reprint edition.

Harman, Graham. [1922] 2012. Weird Realism: Lovecraft and Philosophy. Winchester UK and Washington DC: Zero Books.

Kara, Ashok. 2001. Ghosts of Justice: Heidegger, Derrida and the Fate of Deconstruction. iUniverse.

Kelly, Kevin . 1995. Out of Control: The New Biology of Machines, Social Systems, & the Economic World. Basic Books.

Laruelle, François. 2011. Philosophies of Difference: A Critical Introduction to Non-philosophy, originally published in French as Les philosophies de la difference by Presses Univeritaires de France, 1986. London and New York: Continuum.

Negarestani, Reza. 2008. Cyclonopedia: Complicity with Anonymous Materials (Anomaly). Melbourne: repress.

Rescher, Nicholas. “Process Philosophy.” Stanford Encyclopedia of Philosophy, 2010. accessed April 21, 2012.

Robinson, Keith. “Between the Individual, the Relative and the Void: Thinking the Event in Whitehead, Deleuze and Badiou,” in Event and Decision: Ontology and Politics in Badiou, Deleuze and Whitehead, ed. Roland Faber, Henry Krips and Daniel Pettus. Cambridge Scholars Publishing, 2010.

Schmitt, Carl. 1985. Political Theology: Four Chapters on the Concept of Sovereignty, originally published as Politische Theologie: Vier Kapital zur Lehre von der Souveranitat, trans. George Schwab. Chicago: University of Chicago Press.

Szulborski, Dave. 2005. This is Not a Game: A Guide to Alternate Reality Gaming. Incunabula.

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State of the Non-Exception: Sovereign Creativity Beyond the Juridical by James R. Saker Jr. is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.


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