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)

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)

Abortion is now "banned" in fourteen US states. Fetal personhood—the notion that fetuses should be considered equal persons—has been invoked in many anti-abortion laws. Yet none of the states actually ban abortion completely. Some states allow exceptions in cases of rape or incest, and at the very least, every state so far permits abortion if the pregnancy threatens the life of the pregnant person. However, it is impossible to uphold the validity of these exceptions while maintaining a position of (...) legal equality between fetuses and pregnant people. The authors argue that this logical inconsistency should persuade supporters of near-total abortion bans to abandon their position entirely. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Exception or EkklesiaSolution to a Girardian Dead EndAnthony Bartlett (bio)The 2023 Colloquium on Violence & Religion conference held in Paris on the centenary of Girard's birth had as its theme "The Future of Mimetic Theory," suggesting both taking stock and a forward perspective. Lucid historical moments do not coincide necessarily with centenaries, but the pressures of our present time are great and the prompt of a hundred-years anniversary (...) marks an opportune point to take a reckoning in a certain crucial aspect. This aspect—which presents at the moment as a kind of practical and theological impasse—has always been there, but the centennial inflection serves to lift it to deserved prominence as a central, if neglected, issue of the Girardian world-disclosure. I was struck at the conference by what seemed to me the profound inadequacy of a conversation that seemed to hasten on—by passivity of response—the very horror it discloses. The often-voiced complaint that Girard lacks the full academic recognition that is his due should perhaps be inverted as the absence of the theological breakthrough that will carry mimetic theory to the epochal value that its analysis truly calls for. [End Page 129]The collection of essays edited by Robert Hamerton-Kelly and entitled Politics and Apocalypse was published by Michigan State University Press in 2007, the same year Girard's final book came out in its initial French, Achever Clausewitz, later translated and published in English as Battling to the End (2008).1 In many ways this collection serves as prologue for the dramatic statement that Achever/Battling was to represent, and it provides essential context for that climactic book of Girard's career. The essays were actually papers delivered at a conference in Stanford, California, in 2004, a select affair as Hamerton-Kelly's preface tells it—a group of eight participants conversing over a period of six days to give the opportunity for a "leisurely" conversation. The conference took place against the feverish background of post-9/11 politics under the George W. Bush administration. Hamerton-Kelly quotes affirmingly from Peter Thiel's essay in the book, "The brute facts of September 11 demand a reexamination of the foundations of modern politics."2 As such, the papers probably represent a high-water mark of Girardian reflection on the possibility of politics in the light of mimetic crisis and analysis. Girard's conversations with Benoît Chantre, which were to become the content of Achever Clausewitz, were likely happening concurrently, or perhaps realized soon after the Stanford conference. Girard's own piece in the Stanford collection gives little hint of the Achever tone and content—it is in fact a tour de force exegesis of the gospels, displaying their unique clarity in revealing the foundational victim of culture—so the feeling must be that Girard was keeping his revelatory powder dry for his final book. While the other contributors were hotly preoccupied with questions of political theology, especially as developed by the twentieth-century theorists Carl Schmitt and Leo Strauss, Girard, with Chantre, focuses almost solely on the nineteenth-century theoretician of war, Clausewitz, and with that a version of biblical apocalyptic within the determining framework of mimetic theory. In effect, Girard sidesteps political theology and heads, as he sees it, to the heart of New Testament revelation. As may often be the case with Girard, attempts by collaborators to frame him within more standard theological and intellectual contexts were ever exceeded by the original thinker's more daring and provocative biblical vision.Carl Schmitt was a German jurist (and prominent member of the Nazi party) who argued the necessity of the friend–enemy distinction for the cohesion of a given society or state. In his paper for the conference, Wolfgang Palaver devotes considerable space to Schmitt, demonstrating his proximity in certain respects to mimetic theory. Palaver quotes a letter from Leo Strauss to Schmitt summarizing the latter's viewpoint: "The ultimate foundation of the Right is the principle of the natural evil of man; because man is by nature evil, he therefore [End Page 130] needs dominion. But dominion can be established, that is, men can be unified, only... (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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

In lieu of an abstract, here is a brief excerpt of the content:Legal Self–Help on Private Property in Classical AthensMatthew R. ChristA remarkable feature of litigation in classical Athens was the high degree of responsibility private citizens bore for initiating, conducting, and executing the judgments of legal actions.1 In the absence of a public prosecutor or an active police force, Athenians engaged in a level of legal self–help that would shock most modern Westerners. While Athenians strongly preferred private to public (...) initiative in legal matters, aspects of legal self–help troubled even them. I focus here on contemporary tensions surrounding the use of legal self–help on private property, whether carried out by the master (kurios) of a household defending his realm or by outsiders crossing onto others' property under the authority of the city's laws. Legal self–help of either sort raised questions for Athenians concerning the boundaries, both spatial and conceptual, between private and public spheres. In particular, to what extent did a household and its property, including land and home—all of which could be subsumed by the word oikos—constitute an inviolable state within the state?2Discussion in these pages explores the legal regulation of self– help on private property and the social attitudes toward private space that determined how, and even whether, legal rules were enforced by courts. We begin with evidence that the Athenians granted considerable license to a kurios to exercise legal self–help in defense of his oikos. We may then consider how the authority granted by the city to outsiders exercising legal self–help to cross the boundaries of this private realm represented a problematic challenge to the ideal that the oikos should be inviolable under the democracy.Legal Self–Help in Defense of the OikosIn classical Athens, as in many societies, a man was permitted to defend his home from intruders, even up to the point of exercising lethal force.3 This license of a kurios to use force in his own realm, which scholars sometimes describe as his "Hausgewalt," was not formally articulated as a right in Athens.4 Its reasonable exercise was, however, consistent with both legal regulation and community norms.Although Athens' laws did not, as far as we know, specifically address defense of the home from intruders, they allowed the use of lethal self–help in two circumstances, theft and moicheia, that could well involve incursion upon a man's property (cf. Lys. 1.36). In the case of theft, one law stated, "If a man should steal anything whatsoever at night, it is permitted that his victim in pursuit, kill him, wound him, or lead him by apagōgē to the Eleven if he wish" (Dem. 24.113). According to another law, "If one kills immediately in defense of one's property a man carrying or leading it away by force and unjustly, he is killed with impunity" (Dem. 23.60). Although both laws could apply outside, as well as within, the boundaries of a man's property, MacDowell is probably right that the first law would apply especially to housebreakers, "who would not necessarily use force and so would not be covered by the second law."5An Athenian might also legally kill an intruder caught in illicit sexual relations (moicheia) with one of his female dependents: "If a man should kill another... in intercourse with his wife, mother, sister, daughter, or concubine kept for procreation of legitimate children, he shall not go into exile as a manslayer on that account" (Dem. 23.53; cf. [Arist.] Ath. Pol. 57.3; Lys. 1.30).6 Although this law, like the laws permitting the killing of a thief, did not limit the exercise of this license to the bounds of the home, a man was most likely to discover and take [End Page 522] vengeance on a moichos here. If he did not wish to kill a moichos caught in his home, he could restrain and even abuse and humiliate him until receiving recompense or promise of it.7 This license to restrain even a citizen in one's home for an indeterminate length of time constituted a striking exception to the general rule under the democracy that imprisonment of... (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)

While praising Agamben for his attempt to formulate a radically immanentist conception of redemption, Negri nevertheless points out that Agamben’s novel vision of redemption, according to which the world in which we live is also a source of possibility, remains singularly unproductive. This is because in Agamben’s universe, according to Negri, productive power is attributed to sovereign power alone, thus leaving no room for a radically inventive and transformative activity – except in the guise of passive marginal resistance. In this (...) article, I will discuss how the dialectic of immanence and transcendence implied in Agamben’s identification of the irreparably profane world with God throws into relief what is at stake in his singular conception of redemption. If nothing is more urgent in the contemporary state of exception in which we allegedly live today than finding a way to wrench from it a potential for transformation, as Agamben claims, this is because the present regime of mastery succeeds in creating through this very lawlessness an interminable status quo, immune to all change. In examining the implications of Agamben’s analysis of the self-generating immanentism of the state of exception, I explore the possibility that his commitment to redemption might make a contribution to contemporary theorisations of resistance by identifying the difficulties of contemporary immanentist theories of resistance, such as Negri’s, in finding a way out of the present impasse and by developing the basis for an explanation of how the restoration of the possible is given only through the restoration of always-already missed opportunities. (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)

AA 180& 'What has to be accepted, the given, is, so one could say, forms of life'. (PI p 226) Compare with Nietzsche. Nietzsche works out a theory of demoralisation. Understanding of the logic of language games makes a difference to those one will play. Compare Heraclitus. The form of life as the will, prana, that which determines whatever it is that is said or believed. The language is merely the medium. Yet this is not something to be set up (...) as a metaphysical theory. It is too particular, and any motive for demolishing it is likely to be sufficient to do so. There is no one way which is true over and above all others. To be able to talk on this plane we need a kind of higher logic. There are those who are desperate to discover the one explanation which is in a sense true. For them, an philosophy which focus on the nature of explanation itself, and thus dissolves the problem will appear irrelevant. Henceforth what is needed is not philosophical statements but logical tools. What we do with these tools is not the business of philosophy. 'one wonders what philosophy would have been like in Britain and the United States if it had not been for the accident of Wittgenstein, for he might not have been on the scene at all…. I meant that he became known to the world of philosophy through the very special circumstances of making a strong impression on Bertrand Russell, and being accepted into the world of philosophy through the bold initiative of Cambridge. Nature is wasteful, and if one wants to get something exceptionally good, one must take great risks about having a great deal that is simply wild. I am sure that both Russell and Cambridge were right to adopt such a policy. Cambridge is possibly the only university in the world that would have touched Wittgenstein at any price. Had it not been for Cambridge, and had it not been for Russell, - and some people would hold that he made an error of judgement- almost certainly nothing more would have been heard of Wittgenstein'.. (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)

In the triumvirate of personalities and motives—from Wright and Baldwin to Coates—we encounter the essential elements of the “crisis” that configures black passage in the New World. These lines of kinship, both consanguineous and ineffable, travelling from father to son, from uncle to nephew, from one generation to the next, lend us a figurative rhythm that grasps the notion of the processional —the traversal of time and space that remains fundamentally mysterious, just as we can put our finger directly on (...) the problem—black life is still as endangered and precarious as it ever was. If one regards such passage as a “crisis,” then it is precisely because it is riddled with turning points, sudden ruts and rifts in the road when the way seemed smooth and clear—those moments when decisions must be made—and from that perspective, African-American cultural apprenticeship offers, by definition, crisis not as a state of exception, but rather, as a steady state, given historical pressures that bear in on it and that become, as a result, intramural pressures. What I wish to do in these remarks is to clarify one of the questions engendered by this predicament, and that is to say, the riddle of identity and how it matters, but even more than an inquiry into the identitarian, I am searching for a protocol through intramural space. (shrink)

This paper examines the paradoxical transparency involved in training machine-learning models. Existing literature typically critiques the opacity of machine-learning models such as neural networks or collaborative filtering, a type of critique that parallels the black-box critique in technology studies. Accordingly, people in power may leverage the models’ opacity to justify a biased result without subjecting the technical operations to public scrutiny, in what Dan McQuillan metaphorically depicts as an “algorithmic state of exception”. This paper attempts to differentiate the (...) black-box abstraction that wraps around complex computational systems from the opacity of machine-learning models. It contends that the degree of asymmetry in knowledge is greater in the former than the latter. In the case of software systems, software codes are difficult to understand as only software experts with sufficient domain knowledge are equipped to formulate a sound critique. In contrast, the meanings of trained parameters in a machine-learning model are obscure even to the data scientists who configure and train the model. Hence, the asymmetry of knowledge lies only in how data examples are collected, the choice and configuration of machine-learning models, and the specification of features in model design. Under the trend of algorithmic decision-making proliferating with machine-learning heuristics, the paper contends that the more symmetric distribution of knowledge in machine learning could lead to a more transparent production process if proper policies are in place. (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)

Spinoza viewed the book of Ecclesiastes, in its original Hebrew and thus cleared of the interpretations imposed upon it in the guise of translation, as a powerful critique of the two most important variants of the superstition that taught human beings to regard both nature and themselves as degraded expressions of an unattainable perfection. The first was organized around the concept of miracle, the divine suspension of the actual concatenation of things, as if God were an earthly sovereign declaring a (...) state of exception. The second was the apparent opposite of this first, the idea that the concatenation of things has an origin and an end, that is, an order decreed by God. Spinoza reads Ecclesiastes through the lens of Epicurus and Lucretius, as if it were an attempt in the Hebrew idiom, an idiom in certain ways perhaps better suited for this task than either Greek or Latin, to shatter the decrees of destiny and to regard with pleasure those singular things (both human and non-human) that cannot and need not be made straight. (shrink)

In his book Political Theology, Carl Schmitt compared the freedom of God over and beyond the laws of nature to sovereign power, understood as transcending the laws of the state. Philosopher Jacques Derrida has argued that such a Schmittian political theology undermines the possibility of democracy from within. Yet in this paper I would like to develop Derrida’s understanding of justice in order to show that it functions in a similar way to Schmitt’s understanding of sovereign power. Because justice (...) is always singular for Derrida, it transcends politics and is identified with a transcendent alterity beyond the iterability of the law. If Schmitt’s understanding of power as a State of Exception undermines democracy from within, by placing justice in a dimension beyond politics and the law, Derrida’s notion of justice also functions as a State of Exception and undermines the democratic project from without, depriving it of its performative power. (shrink)

In his collection of articles, "Where Are We Now - The Epidemic as Politics", Giorgio Agamben appears to make some very startling (if not downright outrageous) claims concerning the political situation in Italy and elsewhere in Europe during the Covid-19 pandemic. In this piece [in German] I analyse how these claims are rooted in the philosophy of Agamben's "Homo sacer" project. Focussing on three central notions (Schmitt's "state of exception", Foucault's "biopolitics", and Agamben's very own "bare life"), I (...) show how Agamben's illegitimate identification of the bare life with the subject of biopolitics leads to the derailment of his theory as well as to some of the grave political misjudgments he makes regarding the pandemic. (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.

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)

In lieu of an abstract, here is a brief excerpt of the content:Visual EmpireSusan Buck-Morss (bio)1 The Sovereign IconThe Question of SovereigntyJust when the nation-state appeared to be waning in significance, national sovereignty is back in the spotlight. The issue takes on special urgency in the United States, where sovereign right has been proclaimed persistently by the president in an attempt to justify policies of military aggression and violations of international and domestic law, executing these policies with disregard for (...) traditional judicial and constitutional procedures.1 Giorgio Agamben’s recently translated book State of Exception has touched off a small case of collective hysteria among American academics by claiming that by their intrinsic nature, democracies undermine themselves, that dictatorship is an ontological necessity of modern politics, and that the sovereign’s power to declare a state of emergency and with it a state exception to the law places potentially the whole world under the sign of the concentration camp.Agamben’s revelation, however, is not the scandal. It is a logical truism that something cannot be a member of its own set, that constituting power (pouvoir constituens) cannot be synonymous with constituted power (pouvoir constituent).Plato in the Timaeus described a self-eating, circular being as the first living thing in the universe–an immortal, perfectly constructed animal [image 1]. Agamben seems shocked to find that such an animal does not exist. If democracies could be self-constituting and self-reproducing, if they could realize the perfect closure of the Oroborus (snake consuming its tail), there would be no decay and no history—but also no hope, no escape from the magic circle of power that is capable of mystifying any political regime, no matter how democratically conceived. The historical event that ruptures the circle’s mythic repetition is also the possibility of a better future.Unlike both Walter Benjamin and Carl Schmitt, upon whom he relies, Agamben uses history ahistorically, in order to abstract from it a timeless ontology of power. In contrast, Benjamin is attentive to historical concreteness, as is Schmitt—this attention is their common bond. But when Benjamin criticizes the parliamentary democracy of the early Weimar Republic, it is not, as it is for Schmitt, out of yearning for a strong executive to cut through parliamentary legalism and compromise.2 Rather, it reminds twentieth-century [End Page 171] parliaments of their own violent origins. A present-day executive leader who, in using the emergency powers of his office, fails to be reminded of the historical origins of representative governments no longer feels It necessary to submit to democratic rule. Benjamin believed that the watered-down versions of democracy in his own time had become little more than bourgeois governing cliques, and for that reason, he might have appreciated Thomas Jefferson’s suggestion that every generation needs a new revolution. The sovereign who declares a state of exception would then be the citizens themselves.The question we need to ask is why Thomas Jefferson’s call for permanent revolution is not predictive of the history of democracies in modern times—why it is so difficult to cut off the head of the king so that it stays off, why popular sovereignty consistently resurrects an aura of quasi-mystical power around the sovereign figure—which since Hobbes’s Leviathan has been recognized as a human artifact, a merely mortal god [see image 2]. In a democracy where only the citizens have the legitimate right to declare a state of exception to the law, the real scandal occurs when an executive branch usurps that power and is allowed to get away with it.More than the sum of merely empirical individuals of which Hobbes’s Leviathan is composed, sovereignty is a transcendent category. The sovereign is an icon in the theological sense. He (or she) embodies an enigma—precisely the power of the collective to constitute itself. The sovereign figure as personification of the collective demonstrates the power of the visible image to close the circle between constituting and constituted power, explaining why even when the illegalities of an individual sovereign are exposed, the faith of the believer is still not shaken. As long as the circle appears closed, sovereign power remains intact; likewise, and... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:“Unauthorized Propositions”The Federalist Papers and Constituent PowerJason Frank (bio)The PEOPLE, who are the sovereigns of the State, possess a power to alter it when and in what way they please. To say otherwise is to make the thing created, greater than the power that created it.—Anonymous, Federal Gazette, March 18, 1789The we of the Constitution’s “We the People” was as much of an artificial construct as the Constitution (...) itself, it was its creature, not its creator.—Sheldon Wolin, The Presence of the PastIn Federalist No. 40, James Madison engaged the vexing question of whether the Philadelphia Convention of 1787 had been properly authorized “to frame and propose” the new Federal Constitution of the United States [83]. Madison explored there “the ground on which the Convention stood” [264], which he identified as the purportedly solid foundation of the people themselves [Morgan 272]. Federalist No. 40 offers a theoretically probing yet avowedly practical reflection on the availability of foundations and on dilemmas of popular authorization in times of constitutional crisis; it may be productively read as an exemplary eighteenth-century American reflection on a state of exception. As such, Federalist No. 40 provides helpful orientation to how the popular constitutionalism of the revolutionary and postrevolutionary years confronted and navigated—if never fully resolved—some of the most insistent paradoxes of modern democratic theory.In No. 40, Madison was preoccupied with the theoretical and historical dilemmas surrounding the eighteenth-century American conception of the people’s constituent power—that is, the ultimate power of the people to alter fundamental law “when and in what way they please.”1 However, in contrast to most contemporary theoretical approaches to constituent power—whether influenced by the political theology of Carl Schmitt or the immanentist optimism of Michael Hardt and Antonio Negri—Madison’s navigation of the attending dilemmas of popular authorization resisted the turn to metaphysical abstraction and the appeal to a transcendent or immanent absolute. In his approach to the problem of constituent power, Madison insisted on the productive irreducibility of institutional mediation and the performative elicitation of a retrospective authorization by the people. While accepting the absence of a firm ground of legal authorization (the unbroken authority of law), Madison also rejected a wholly extralegal or unmediated appeal to the people themselves (the transcendental appeal to spirit beyond the letter of the law). Instead, he endorsed a political navigation of these dilemmas in medias res. Confronting [End Page 103] the dilemma of constituency—how does the people give birth to itself as a self-authorizing subject?—Madison shifted the register of discourse away from the formal and juridical and toward the informally ethicopolitical. Doing so, he was able to affirm a rupture in law while simultaneously enlisting another register of normative continuity. This essay outlines Madison’s productive encounter with these dilemmas in The Federalist, and suggests the relevance of his example for recent debates in democratic theory, too often captivated by the formal rubrics of “norm” and “exception.”1The government which [the Federalists] are so enthusiastically fond of is as yet an ideal phantom, a chimera, a mere theory detested and execrated by every true friend to government.—“One of the People,” Carlisle Gazette, January 9, 1788Madison wrote Federalist No. 40 as a response to widespread and persuasive Anti-Federalist claims that the Philadelphia Convention had exceeded the mandate granted to it by the Annapolis Convention of 1786 and the Congressional Act of 1787, both of which authorized the meeting of the Philadelphia Convention “for the sole and express purpose of revising the Articles of Confederation” [259]. While the Philadelphia Convention was, in Bruce Ackerman’s words, “expressly subordinated to existing institutions and procedures” [Ackerman 43], it had nonetheless produced an entirely new constitutional text and—theoretically more problematic for Madison—an entirely new procedure for its popular ratification [see also Ackerman and Katyal]. Under Article 13 of the Articles of Confederation, constitutional reform could come about only through the unanimous assent of the thirteen state legislatures.2 Under the Philadelphia Convention’s plan, the ratification of the proposed constitution would bypass the constituted power of the state legislatures and appeal instead to the... (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)

To see "democracy as a tragic regime", as Cornelius Castoriadis did, is to recognize the ever-present risk of democracy’s cancellation, but it also means to emphasize the anti-democratic nature of such cancellation, thus its incompatibility with democracy. In the context of this understanding of democracy, the article takes the political to consist of those relations among people and among institutions within the polis, which aim at deciding about the polis’ fate. It takes the social to be those relations among people (...) and among institutions within the polis, to whom such decisions about the polis’ fate apply and whom they create. If democracy is understood as tension between the two, then the relation between those who decide and those who are subject of the decision is never entirely pacified – hence, always contested and in need of specification. Using the examples of the state of exception and totalitarianism (temporary and permanent self-cancellation), the article argues that these situations are outside a linear continuation with the democratic phenomenon and are due to a displacement, which is akin to the hubristic displacement. (shrink)

There are many problems of universals, at least the four distinguished by Jenny Teichmann. Consider her second one. ‘How can we form a general term when we are faced with easily distinguishable, widely differing examples?’ The term ‘blue’, for example, covers a wide range of—well, what does it cover a wide range of? A wide range of the colour blue? This is nonsense. What it covers is a wide range of blues —shades of blue. But we do not form a (...) general term when faced with or referring to these items. We distinguish them: cerulean, ultramarine, cyan, cobalt, navy blue and so on. ‘Blue’ is not the name of any of these shades of blue. It does not ‘cover’ anything except the colour , of which it is the name. ‘Blue’ is the name of the colour blue. There are no widely differing, easily distinguishable examples of that . The colour blue cannot differ widely or easily be distinguished from the colour blue. Leibniz's law prevents it. It is shades of blue which differ and are easily distinguishable. The moment we try to say, ‘But this differs from that’, the question will be, ‘This and that what? ’ If the answer is, ‘This colour ’ and ‘That colour ’, then a mistake has been made. For there is no differing and distinguishing in this case. Teichmann's problem cannot even be stated. If we say that what differ are this blue and that blue, which is the right thing to say, then we have two count nouns which mean ‘shade of blue’. There is no general term for these different shades. There is no answer to the question, ‘What is the name of all these differing shades?’ Certainly they are all blues, but each has its own name, and it is not ‘blue’. Teichmann's question cannot arise here either. The question, ‘What do blues have in common in virtue of which they are blue?’ is either elliptical or bad logical grammar. Which it is depends on the construal, or misconstrual, of ‘are blue’. The question should be either, ‘…in virtue of which they are blues ’ in the plural— they are not identical with the colour blue—or ‘…in virtue of which they are shades of blue.’ The plural agreement must come somewhere. (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.

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)

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)

This article examines the interplay between contemporary algorithmic security technology and the political theory of the state of exception. I argue that the exception, as both a political and a technological concept, provides a crucial way to understand the power operating through machine learning technologies used in the security apparatuses of the modern state. I highlight how algorithmic security technology, through its inherent technical properties, carries exceptions throughout its political and technological architecture. This leads me to (...) engage with Theodor Adorno’s negative dialectics to interrogate the question of ‘ground truth’ in machine learning. I conclude that most machine learning technology asserts identity between itself and bourgeois reality – and thus inherently reinforces and reproduces the relations of domination entailed in that image of the world. However, space still exists for machine learning to operate within spaces of political non-identity, or exceptions to the bourgeois totality, and aid in liberatory politics. (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)

Despite a vast amount of research into school bullying and the widespread implementation of anti-bullying policies and programs, large numbers of students continue to report that they are routinely subjected to bullying by their peers. In this theoretical article, I argue that part of the problem is that there has been a lack of critical discussion of the theoretical foundations upon which such studies are based. Drawing on recent theoretical contributions within the field of school bullying, the work of anthropologist (...) James C. Scott, and the work of philosophers Michel Foucault and Giorgio Agamben, I take particular issue with the notion of power that has long been a foundational pillar of bullying definitions. Utilizing a Foucauldian understanding of power, I argue that rather than focusing on the power imbalance involved in bullying relations, focus instead needs to shift onto the role that bullying plays in power relations. Reimagining Agamben’s figure of homo sacer as a victim of school bullying, I consider the ways in which some individuals are reduced to bare life and forced into a state of exception whereby social laws are no longer deemed applicable. The article concludes with a discussion of how this state of exception might be challenged. (shrink)

Theologian. Conspirator. Martyr. Saint. Dietrich Bonhoeffer was killed in the waning days of World War II, having been implicated in the July 20th assassination attempt on Hitler. Since his death, Bonhoeffer’s life and writings have inspired contradictory responses. He is often seen as a model for Christian pacifist resistance, and more recently for violent direct political action. Bonhoeffer’s name has been invoked by violent anti-abortion protestors as well as political leaders calling for support on a ‘war on terror’ in the (...) aftermath of 9/11. Petra Brown critically analyses Bonhoeffer’s writing preceding and during his conspiracy involvement, particularly his recurring concept of the ‘extraordinary.’ Brown examines this idea in light of ‘the state of exception,’ a concept coined by the one-time Nazi jurist and political theorist, Carl Schmitt. She also draws on the existentialist philosopher Sören Kierkegaard to consider what happens when discipleship is understood as obedience to a divine command. This book aims to complicate an unreflective admiration of Bonhoeffer’s decision for conspiracy, and draws attention to the potentially dangerous implications of his emerging political theology. (shrink)

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)

The public health crisis caused by the COVID-19 pandemic led to a rapid surge in activity in biomedical and social science. The pandemic created a need for new scientific knowledge specifically related to the new, emerging infectious agent and it quickly showed huge gaps in knowledge in relation to social and policy responses to pandemics. Governments all over the world accepted the COVID-19 pandemic as a significant public health crisis and went into crisis mode in order to end the crisis (...) and mitigate its impacts. One area in which rapid policy changes occurred was in relation to research ethics. Research ethics systems and guidelines were changed in many countries. The COVID-19 crisis also led to a flurry of philosophical and bioethical work arguing that traditional research ethics rules and principles should be suspended, rethought, or abolished. This essay will analyze whether a public health crisis justifies changing research ethics principles and policies and, if so, what the scope of justified changes is. (shrink)