Normalizing the State of Exception
- Elgar Monographs in Constitutional and Administrative Law series
Chapter 4: The state of exception as mindset and doctrine
Democratic law-rule and the method Locke as its corresponding technique of governing entail two projects linked to the liberal paradigm. The first is the ambitious attempt to legally programme state practice with acts of parliament. Accordingly, the legislature has to define what is right and what is wrong, what should be done and what can be expected by dint of general statutes. The statutes, and in the final analysis constitutional law, are charged with regulating all essential aspects of life in society. For this purpose, state authorities are given powers that allow them to intervene in the citizensí spheres of action demarcated by civil and political liberties ñ or, to put it technically, to coordinate actions and their consequences. First under the banner of rule of law, then of democracy, self-government through self-legislation was to resolve everyday conflicts once society had entered into the civic state (Kant). Consequently, the techniques of governing that are oriented towards the expedient become in the liberal paradigm ñ theoretically ñ less important as rationalist concepts of the state gain acceptance, and always have an interest in effective legal steering and the smooth functioning of the executive within legal barriers. In this way, effectiveness and normativity enter a tension-ridden relationship as standards for the resolution of societal situations of conflict.
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