Normalizing the State of Exception
Elgar Monographs in Constitutional and Administrative Law series
Chapter 3: Constellations of law-rule and the state of exception
The methods that constitute the technology of governing and the mindset they presuppose are mainly characterized by their more or less ambivalent relationship to law and their security agenda. How the exercise of political power deals with legal constraints will be discussed with regard to the most prominent variations of law-rule ñ the Anglo-American rule of law and the German Rechtsstaat. In particular, it will be shown how these methods oscillate between legality and the extra-legal exception and thereby privilege specific paradigms of political technology. Both the rule of law and the Rechtsstaat have come of age, but they still do not enjoy a corresponding universal and unanimous appreciation. Despite ñ or because of ñ their operative versatility and semantic indeterminacy, they remain controversial. As thoroughly sober rhetorical figures, their ëpathos of distanceí from popular passion and political scheming withstands all present-day translations into catchy metaphors. Although the ëeye of the lawí follows the logic of organicist embodiment, this metaphor captures only one, albeit important aspect of law-rule: the desacralizing and depersonalizing reification of rule-guided government on its way ëfrom god to the earthly god of the prince, from there to the mortal god of the Leviathan and from there to deified law, which in turn finds its culmination in the constitutioní. This partial embodiment remains intact even if one adds the ëarm of the lawí as executive extension of the ëeye of the lawí.
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