When the Exception Becomes the Rule

When the Exception Becomes the Rule

Photographer: Jan Genge | Source: Unsplash

A Terrible Beauty

Listen:

It’s come to your attention that Virustan is fake newsing the COVID19 crisis. Virustan's president for life isn't importing masks and isn't testing his population because he thinks it's a hoax. Meanwhile Virustan’s citizens are posting videos on Instagram of their grandparents dying in isolation. Wait a minute…. they don’t have money to eat, but they have smartphones? You have no idea, my friend. There’s a hierarchy of deprivation: people with no money to eat buy Android while people who have enough for a daily meal flaunt iPhones.

Now that you’re suitably shocked, lemme ask you a question:

Would you support an invasion of Virustan for humanitarian reasons?

Of course you would. You're a human rights campaigner at heart, even if you haven't paid your maid for three months and those migrants deserve every beating they get. It’s time the planetary police set the house in order. Here’s the rub: who is going to lead the invasion?

Not the US, whose president has declared you're better off injecting detergents. Not China, whose offer to do so will likely set off WW-III. Every country is pointing fingers at everyone else. Boris Johnson says it's a continental attempt to end the British Empire, the continent thinks it's caused by African immigrants, the Americans are blaming the Chinese and the Chinese are being told by their fearless leader that it was caused by Yankee devils.

Rashomon

Reminds me of Rashomon, the great Kurosawa movie in which the same event was experienced in different ways by everyone involved. Or to use an Indian metaphor, we are all like the seven blind men identifying the elephant variously as a systemic failure of capitalism, a Chinese lab experiment gone rogue, an attempt by the West to defeat the Middle Kingdom and if you are a real lateral thinker, preparation for aliens to make contact later this year.

I am tilting towards the last option; otherwise why is the U.S Navy releasing video after video of UFOs?

Photographer: Erik Mclean | Source: Unsplash

But the blind men weren’t wrong in thinking something big is in front of them – we are living in exceptional times with downstream consequences for years.

What terrible beauty is being born?

The State of Exception

In answering that question, we should start with the (unfortunately Nazi) political theorist Carl Schmitt's idea of the 'state of exception,' which Wikipedia pithily describes as:

A state of exception (German: Ausnahmezustand) is a concept in the legal theory of Carl Schmitt, similar to a state of emergency (martial law), but based in the sovereign's ability to transcend the rule of law in the name of the public good.

Carl Schmitt

Schmitt's ideas have been greatly expanded by the (decidedly non-Nazi) thinkers Giorgio Agamben and Achilles Mbembe. Agamben wrote a controversial essay about the exceptions created by the COVID19 crisis. Both are concerned with how the sovereign has the capacity to strip a person of their membership in a political society and turn them into 'bare life' (Agamben’s term) that can be extinguished on a whim. The slave plantation (for Mbembe), the concentration camp and the detention center (for Agamben) are archetypal 'places of exception' whose logic goes as:

  1. Identify an ‘exceptional’ population.
  2. Create a space – a ‘camp’ for isolating that ‘exceptional’ population
  3. Turn screws

I am using ‘population’ and ‘camp’ in quotes because they are being used as technical terms. Nevertheless, today’s exception isn’t like the exceptions of the past; no specific population is being identified and only temporary camps are being created. We have a revolution in the history of exception which has escaped the confines of the detention center and occupied Main Street. The theory explaining today’s exception has to go beyond Agamben and Mbembe’s formulations.

I could try explaining Mbembe, Agamben and Schmitt’s ideas further for they are subtle thinkers well worth engaging but I am going to do something different instead: explain the logic of exception as a bug of political life. Or is it a feature? You decide.

Came across these kitschy babushka made for the Trump visit to Russia.
Photographer: Jørgen Håland | Source: Unsplash

Being with Others

Hamlet’s most famous lines appear in a soliloquy: ‘to be or not to be; that is the question.’ He’s talking to himself, and while Hamlet’s indecision drives the narrative forward, it’s the talking to himself that concerns me here.

Hamlet is the archetypal modern individual: living in the cave of his own mind first before engaging with the world. In that cave, all existential questions are directed at oneself and not at others – hence the soliloquy. For that individual, the most important decision is to take one’s life. Or not. Suicide is elevated to a matter of existential importance. Albert Camus gave that thought its fullest expression in the first line of the Myth of Sisyphus:

There is but one truly serious philosophical problem, and that is suicide

I used the phrase ‘cave of the mind’ with some intention, for it should remind you of Plato’s cave and its play of shadows. There’s no escaping that cave as long as you are trapped within yourself; it’s only in being with others that there’s the prospect of political freedom. Of course, if others can free you, they can also turn your life into an earthly hell.

There is a deep metaphysical question combining the paradoxes of self-reference and the nature of (human) beings: when I talk to myself, am I talking necessarily to the same person or is it just a matter of accident that I am talking to the same person and could easily be talking to someone else. The difference between the two choices:

  1. ‘I’, ‘me’ & ‘myself’ necessarily refer to the same person. I am always me.
  2. ‘I’, ‘me’ & ‘myself’ only accidentally refer to the same person and could easily refer to someone else.

In saying “I went to the grocery store earlier this morning” is the ‘I’ who is writing these words the same as the ‘I’ who went to the grocery store? What is the criterion of identity? These questions may seem like logical or linguistic quibbles but have enormous consequences for how we live – together or alone. To understand why, let’s go back to Hamlet. Or rather, another man caught in the web of indecision. I am, of course, referring to Arjuna at the brink of the great battle.

The Calm before the Storm

Unlike Hamlet, Arjuna is not alone; he’s with Krishna. He’s not in the cave of his own mind, but in a ‘moral commons,’ a space he shares with one other being, even if that being is Being itself if you are a believer. Arjuna doesn’t contemplate suicide. Instead he seeks the counsel of another being. If Hamlet runs the risk of alienation and isolation, Arjuna runs the risk of poor counsel or deception. Was Krishna right in advising Arjuna to fight? A war that started with 20 million combatants and ended with seven (yes, seven!) might strike the unbiased observer as disastrous for winner and loser alike.

Each mode of existence runs its own existential risk:

  1. Solitude – alienation.
  2. Sociality – deception.

The Buddha is still right: every mode of existence is radically impermanent, even if the form of impermanence switches from isolation to misinformation. Or to express it as two Shakespearean alternatives:

  1. To be or not to be
  2. To be is to be with

To not be (suicide) or to be with (politics): which one is it?

The Political Community

Let’s go with the second, that as social beings we are always with others. There’s no possibility of genuine soliloquy. Even when talking to oneself, we are talking to others. Isn’t that what’s happening: ‘Hamlet’ is a play and when the Prince of Denmark is talking to himself within the play, he’s also performing for an audience – whether a concrete theatrical audience or an abstract audience if it’s a rehearsal. Talking always presupposes others, or as Wittgenstein put it, there’s no such thing as a private language.

Aristotle

Our sociality predates agriculture, villages and cities, but at least from the time of Aristotle and his Politics, a particular vision of sociality has taken on an ever more important role: that human well being requires membership in a political community. It’s a teleological view of humanity, where certain institutions and only those institutions help us become fully human. It’s only in this context that Fukuyama’s “End of History” hypothesis makes sense – that we have found the set of institutions (roughly, liberal democratic institutions) that achieve the fulfillment that Aristotle sought in principle.

What’s the alternative? Fulfillment in God of course; that history ends not with liberal democracy but with the day of judgment. It’s no surprise that the major founder driven religious traditions (Buddhism, Christianity, Islam) and conceptions of human fulfillment in a political community arose at about the same time.

If you agree that religious and secular fulfillment are parallel tracks, the clash between the two is less about the clash between faith and reason and more about two visions of human fulfillment. Or a clash between two technologies of freedom. Incidentally, of the major religious and political traditions, it’s Islam that goes furthest in unifying the two conceptions of liberation, with the concept of the Ummah, a human community that’s simultaneously political and religious. There’s the further claim that the early Caliphates actually achieved this unification. The demand to recreate the Caliphate has to be understood within this context – there’s something compelling about a community fulfilling both transcendental and worldly paths to liberation.

We are almost to the point where the exception steps on to the stage, but not quite yet. Only some political communities are capable of throwing an exception: communities ruled by law. To use a Hindu analogy, Ramrajya can’t have exceptions but Dharmarajyas can.

A Brief History of Exception.

Imagine an absolute monarch of the past. When faced with a bad review of his submission to the Royal Journal of Divine Rule, he could have called the editor and said ‘off with the reviewer’s head’ and the referee would be dispatched to critique heavenly reason. The king didn’t have to provide reasons for beheading his critics because he wasn’t subject to the law. Ibn Battuta says this about Muhammed bin Tughlaq:

The Sultan was far too free in shedding blood… [He] used to punish small faults and great, without respect of persons, whether men of learning or piety or noble descent. Every day there are brought to the audience-hall hundreds of people, chained, pinioned, and fettered, and are…executed…tortured or…beaten.

MbT might have been a particularly mercurial sultan, but others before him and after him were no different. Ashoka killed ninety nine of his hundred brothers. Might be an exaggeration to make his subsequent conversion to the Buddhadharma look even more awesome but still, the king’s authority is personal and so are his enemies. Outside that realm of personal authority, premodern states were weak – imprinting their authority upon the central parts of the big cities and towns. The country side was too far away to control.

The modern state is way more powerful. Not only can it take life away, it can also improve it. In fact, progress at population scale is the name of the game. As Michel Foucault pointed out, the modern state exerts power through its capacity to better the lives of its citizens; what Foucault called biopolitics. In the pursuit of biopolitics, modern societies cultivate new forms of knowledge whose purpose is to raise the material standards of the population. The state of exception has to be understood against this background of law governed biopolitics, i.e., a ‘normal state’ in which the government is in the business of increasing trade and GDP.

Consider how modern probability arose as a result about thinking about populations (Ian Hacking’s The Taming of Chance is a lovely read). Population thinking has its challenges – it works best when the population obeys a ‘normal’ probability distribution. As a result, population thinking doesn’t like deviations from the Bell Curve – if your growth projections depend on the Bell Curve, you don’t want an epidemic that kills off a huge percentage of your population or stops production for months on end. Mass unemployment is bad for the rule of law. Put another way, the statistical ‘outlier’ maps on to the political exception.

https://www.flickr.com/photos/53272102@N06/16597948915

Further, the processes of reward and punishment are enacted in the name of the people, not the king. The suspension of the law during an emergency or an exception is also justified in the name of the people. The exception exists precisely because the rule is the norm. In a reversal of the personal enmities of kings, modern brutality is impersonal and industrial. The US president can’t and won’t assassinate his political rivals but it’s perfectly OK for him to rain bombs and reduce an ‘enemy’ country to ruins.

Because of the sources of its legitimacy are no longer tied to the royal family but to the welfare of the people, by raising their material standards for example, and because of the complexity of modern society and the technologies that underpin it, the modern state hasn’t been able to break free of the demands of the law – for the most part. When it did so – in fascist and totalitarian countries – it caused such damage that those societies were permanently harmed.

But the exception of 2020 isn't the exception of 1945, just as the exception of 1945 has no counterpart in 1045. We don’t live on the Bell Curve anymore, which means that earlier ideas of ‘normal’ and ‘exception’ don’t work the way they used to. That’s why I believe the information revolution offers today’s sovereigns the ability to stage a permanent state of exception by:

  1. Identifying suspect populations on the fly – Muslims yesterday, migrants today
  2. Creating places of exception on demand

We are close to being able to 3D print the dungeon of the day and stuff it with the enemies of the week. More on the ‘dungeon on demand’ in future essays.

The Instantaneous Exception

If you’ve been reading so far, you might be able to guess where I am going: that the identification of the exception with certain ‘places’ – concentration camps and slave plantations for example -is a limited understanding of that concept’s possibilities. The modern era invented two concepts that came together in the logic of exception: ‘population’ and ‘camp.’ Population thinking helps reason about people as a mass with a Bell Curve of possible states. The camp is the place where certain populations are interned or executed. The two come together in the holocaust and the slave plantation as Agamben and Mbembe have pointed out.

To be honest, this combination of Bell Curve thinking and physical boundary setting seems so crude at a time when every startup founder can tell you about Black Swans and large corporations routinely test statistical models that have nested exceptions. Instead, consider a contemporary form of exception: the lynching. Identifying one individual and declaring a state of exception around just that one person has the capacity to terrify an entire community. All you need is a combination of state indifference (or active support), the technological means to gather a crowd on the fly, the media infrastructure to record and publicize the violence and bingo: behold the instantaneous exception.

We don’t need populations any more. Or camps. The exception can be declared anywhere at any time and to anyone.

The logic of exception has been refined and is capable of universal applicability.

The Exception Escapes

If lynchings are fine grained exceptions at the level of individuals rather than populations, the COVID19 crisis demonstrates exceptions at the other end of the scale. For the first time in human history, the entire world is in a universal state of exception for exactly the same reason.

Photographer: Lianhao Qu | Source: Unsplash

What's equally exceptional is how the case is being made – through the intensive use of data and knowledge. Only the sovereign can claim comprehensive knowledge of the prevalence of the disease, the speed at which it's spreading and the potential medical and economic consequences of doing too much or too little. When Colin Powell stood before the UN General Assembly and claimed they had proof of Saddam producing weapons of mass destruction, he too was claiming specialized knowledge. However, that was just one data point. In contrast, the ever-morphing state of exception today – from continuing the lockdown to partial removal to the labeling of hot spots – is based on integrating a diverse set of data sources and decision-making capacities that only the sovereign can reasonably expect to access. The only competitors are large technology companies such as Facebook that are behaving like sovereign nations in this crisis. They too are arbiters of exception – once again for the first time in our species' history.

It's a massive expansion in state power that could just as easily end in state failure if the disease continues to spread, the economy collapses or the virus comes back for round two or three. The awesome power and the fragility of the modern system have never been in such simultaneous display. The strengths and the weaknesses of this 'system of exception' have a history that I believe is best traced to 9/11.

The Two Towers

While we have never experienced anything quite like the COVID19 pandemic, the attack on the twin towers on 9/11 comes close to being a shock event that was universally experienced. Not because we were all in danger but because the US's supremacy made any attack on America a matter of concern for everyone else.

We know how that turned out: a massive expansion in intelligence gathering and a surveillance infrastructure, rampant Islamophobia, a disastrous war on Iraq and the longer war in Afghanistan. It's the US invasion of Iraq that pioneered the international deployment of the 'state of exception' with the US explicitly citing the human rights of Iraqis and the brutality of Saddam Hussein's dictatorship as one of the reasons to invade the country. In other words, the apparatus of automated and universal data gathering, the use of media to create a 'human rights spectacle' and the robust assertion of state power as the appropriate response to a shock event were all set into motion after 9/11.

G.W Bush's policies made states of exception acceptable at the highest levels of international power and they laid the institutional and technical foundations to carry out such exceptional interventions. Those technologies of control are now being deployed in the 'normal' world. All of us are subject to contact tracing, restrictions on movement etc. As a result, there are no citizens anywhere, only subjects. What mark will this universal exception leave after it’s revoked?

The Rule of Humanity?

The Archduke just before he was assassinated. Karl Tröstl? / CC BY-SA (https://creativecommons.org/licenses/by-sa/3.0)

I can think of at least three ways the world could go from here:

  1. A repeat of the first world war, when an inciting incident draws belligerents into different camps and there's uncontrollable violence. Trump is likely to make his re-election campaign be "China, China, China" which the Chinese aren't going to take lying down. Meanwhile there's a Pentagon assessment that says the US will lose any war with China in the Pacific. Whether that's a real threat or just a gambit to increase the US defense budget, it's likely to increase the possibility of violence.
  2. A permanent state of exception in which nations unleash an authoritarian state in the name of public security, especially when such measures have public support. Of course, that permanent state will exclude profit making economic activity, but we may see the institutionalization of restrictions on other forms of civic engagement. This is particularly likely if the Chinese model of complete lockdown, criminalization of dissent and authoritarian state intervention are widely seen as a successful response to the viral outbreak.
  3. Recognition that this crisis is caused by patterns of consumption and commerce that can't be sustained any longer, followed by a positive commitment to creating an alternative. Why not? Most of us would benefit from a global food & health regime that gives all access to nutrition and well being. Most of would benefit from a global green new deal that changed what, how and where we produce.

This crisis has made these dystopias and utopias plausible since business as usual is not working. If the holocaust prompted the U.N Charter of Human Rights but didn't give us a global model of governance because the US was too powerful in 1945 to let the rest of the world infringe upon its sovereignty, the COVID19 crisis and the weakness of the major powers might spur the creation of public services that benefit every human being wherever they might be. Or so we can dream.

Dream or nightmare, the exception has become the rule.

The Exception becomes the Rule

Photographer: Nikola Jovanovic | Source: Unsplash

Despite their influence and the various 'regime changes' they induced, exceptional interventions in the last two decades were limited in scope, being restricted to particular geographies or particular communities. They had not embraced the logic of the permanent exception that comes with non-normal distributions and fat tails. What the COVID19 crisis has done is to universalise the exception. It’s not one population or one aspect of our lives – it’s full spectrum exception at every scale from our bodily activities to the larger voluntary and professional associations that constitute public life.

The long tail

Consider the spaces of exception of the 19th and 20th centuries, or even from earlier this year: the concentration camp, the slave plantation, the gulag or the detention centre. In those situations, walls and boundaries were used to declare the interior of that space an exception to the usual law governed rule that citizens enjoy as a matter of right. What was frightening about totalitarian governments was (is?) that your neighbors or your relatives might rat you out for an innocent remark and you would find yourself in a state of exception, exiled to Gorky if you were an intellectual or hauling rocks in Siberia if you were not.

What's new about our current situation is that the exception has become the rule – public spaces are off limits for everyone, we are confined to our homes or if you're less fortunate, you are hosed down with chemicals on the main road.

Whether it's a viral epidemic or climate change, the great challenges of the future showcase our inability to cordon off the exceptional. Rising oceans and blistering summers affect everyone all the time. The virus kills celebrities. Yes, in both cases it helps to be rich but even the rich aren't exempt. While we were fighting each other about borders and citizenship, the greatest boundary of all is being obliterated: that between humans and the rest of the natural world. We can no longer pretend to be the exception to the rule of nature.

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