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International politics of exception: competing visions of international political order between law and politics.

Both political leaders and academics often claim exceptional times. But what does it mean to speak of exceptional politics in international relations? In one sense exceptionality is a descriptive category referring to a radical change in the systemic conditions of international politics. In this article a different notion of exception is examined. It refers to a particular method of conceptualizing the nature of international political order. The exception defines political order by means of constitutional-legal reasoning in which different understandings of the nature and status of international law and its political transgressions describe competing visions of international political order. The focal point of this international politics of exception is not the traditional distinction between liberal and realist views of international politics but the constitutionalist triad of normativism, decisionism, and institutionalism. KEYWORDS: exception, international law, normativism, decisionism, institutionalism.


For many, the acts of violence on September 11, 2001, in the United States created exceptional times in international politics. The prime minister of the United Kingdom, Tony Blair, marked a moment of millennial change: "In retrospect, the Millennium marked only a moment in time. It was the events of September 11 that marked a turning point in history, where we confront the dangers of the future and assess the choices facing humankind." (1)

Two years later, during the legitimacy crisis over the war on Iraq (March 2003), Kofi Annan, the Secretary General of the United Nations, similarly spoke of the end of the global security order that was institutionalized after World War II: "We have come at a fork in the road.... This may be a moment no less decisive than 1945 itself, when the United Nations was founded." (2)

But what does it mean to speak of exceptional international politics?

In one sense the concept of exception is a descriptive category referring to a radical change in the systemic conditions of international politics. References to a fork in the road and a turning point in history are used to describe a factual situation that may have made it impossible to continue as before. In this article I examine a different concept of exception. Here exception refers to a method of conceptualizing the character of international political order by means of constitutional-legal reasoning. (3) This method combines a particular philosophical understanding of the relation between order and exception with constitutional accounts of the question of political order at the interstice between the rule of law and the transgression of law.

Philosophically, exception refers to the idea that order is constituted in the definition of what is exceptional to it, what is seemingly its outside. (4) The exception is not a secondary phenomenon that identifies challenges to an established order that exists independently of its exceptions; rather, order is rendered through the articulation of exceptions. (5) Order is thus not constituted by declaring basic normative, cosmological, and/or religious principles against which one can measure exceptional events, but the other way around. Order-defining principles are constituted by means of declaring and identifying exceptions. In other words, the norm does not define the exception but the exception defines the norm.

This philosophical concept operates at a high level of generality. It reaches across or can be applied to different areas of human practice, including art, politics, love, and religion. (6) As a concept in the theory of political order, this philosophical perspective mostly translates into a method that defines international politics by means of identifying the nature and status of an international rule of law and the legitimate conditions of its political transgression. The concept of "international politics of exception" refers to competing definitions of this relation between law and politics. In this understanding, debates about the ordinary or extraordinary nature of events such as those of September 11, 2001, are traversed by competing visions of international political order that rest on different interpretations of the international rule of law and the nature and legitimacy of its political transgression.

This particular conception of the exception is at work in some of the central interpretations of the political significance of the events currently signified as "9/11." Moreover, as I argue, debate about these events is not primarily structured along the traditional distinction between liberal and realist views of international politics but by the difference between the constitutional theories of normativism, decisionism, and institutionalism. In this article, I propose to develop this argument by reading some of the prominent European legal and political constitutional theories of the 1920s and 1930s into debates about international order, security, and law after September 11, 2001.

Why is this concept of exception and the theoretical triad of normativism, decisionism, and institutionalism of interest for international studies? Since 1989 "fantasizing about how to order international politics" has been very much in vogue. (7) Sociological and legal debates about the extraordinary nature of situations, the status of international law, and the legitimacy of the suicide pact rule ("the exceptio for that very small group of events that warrant or even require unilateral action when the legally designated institution or procedure proves unable to operate" (8)) have played an important role in framing international politics since the end of the Cold War. (9) Debates about the legitimacy of humanitarian intervention, the constitution of an International Criminal Court, the crisis of the United Nations, and the legitimacy of pre-emptive warfare are just a few examples of cases in which constitutional-legal reasoning has played a prominent role.

The concept of exception that is examined in this article also opens an important question for security studies. Constructivist and poststructural analyses of insecurity have emphasized that the rendition of enmity has constitutive effects; that it is an order-constituting device. (10) The concept of international politics of exception shows that the ordering effects of security policy do not simply follow from identifying threats and from role-taking as enemies. (11) They also depend on the specific method of framing the interaction with and between enemies. (12) Constitutional-legal reasoning is such a method, one that is currently playing a prominent role in the debates about international politics and insecurity.

The argument is developed in four sections. The first introduces two ways in which the constitutional-legal concept of exception has been used in international studies and how they differ from the notion of "international politics of exception" that is developed here. The following sections introduce the three main constitutional-legal approaches to the question of exception--normativism, decisionism, and institutionalism--and how they go beyond the distinction between liberal and realist theories that has come to inform many accounts of international relations. These approaches are discussed with reference to some of the central competing interpretations of the political significance of international developments post 9/11.

Exception: A Concept in the Theory of International Political Order?

The exception is a complex concept in the theory of state, but for the purpose of this article I focus on a constitutional-legal concept of exception. (13) The latter identifies the tension between rule of law and the political practice that seeks to transgress it as the central problem of political order. This notion of exception embraces two issues: (1) the principle of legality and its limits, and (2) a constitutional concept of sovereignty.

The principle of legality is one of the defining principles of liberal democracy. It refers to the subordination of political decisions to the rule of law. (14) The latter restrains the arbitrary exercise of political power by means of a generalized system of rules and a system of checks and balances between the authoritative functions of the state (i.e., executive, legislature, and judiciary). Only exceptional conditions can legitimize a disproportionate increase of executive power and other transgressions of the rule of law beyond what would be normally acceptable within the constitutional framework. Among the classic examples of such transgressions are rule by emergency decree, state of siege, and suspending parliamentary decisionmaking in case of war.

The constitutional notion of sovereignty identifies a constitutional boundary issue. It refers to a highest form of political authority that is reined in by a legal system but that is also constitutive of this system. The concept of sovereignty thus names the boundary between legally circumscribed political practice and political practice that transgresses these circumscriptions. (15) In the name of sovereignty, concepts of political order are constituted by means of working these two conflicting notions of politics into one another. The "politics of exception" refers here to contexts in which the question of sovereignty, that is, how to conceptualize the boundary between constitutionally defined political authority and transcendent political authority, is a political stake.

Although the constitutional-legal concept of exception is formulated most explicitly within theories of the state and has been worked out mostly within the context of domestic politics, it also operates in theories of international relations. First, international crises and, especially, wars provide archetypical grounds for the politicization of the limits of legality in domestic politics. This aspect of the exception is, for example, central to the theorization of security developed by Ole Waever, Barry Buzan, and their colleagues at the former Copenhagen Peace Research Institute in the 1990s. (16) They theorize security as a speech act that makes the survival of the constitutional order the stake of the political game. Securitizing moves are a rhetorical device that seek to legitimize exceptional policy measures. Securitization implies a move from "normal" politics contained within constitutionally defined rules of political engagement to exceptional politics, for which the constitutional rules do not hold (or at least do not provide the restraint one would normally expect). Conceptualizing security practice in these terms thus makes the exception a key concept in the theory of security politics.

This way of introducing the concept of exception in international studies does not really relocate it from domestic politics to the international system. The international system hosts the crisis situation that triggers domestic debates about the limits of legality and the legitimacy of radical increases in executive power. The political debate about the legitimacy of exceptional politics thus remains focused on the impact of securitizing moves on the nature of liberal democracy within states.

The concept of exception is also present in international studies in another modality. It functions sometimes as a foundational category that separates domestic from international politics. One of the historical functions of the concept of sovereignty has been to territorialize the legal boundary problem I have referred to above. (17) Sovereignty identified a split between the inside of a territorial state in which politics is firmly embedded in the rule of law and an outside or interstate world in which politics largely operate arbitrarily, that is without being tightly circumscribed by rule of law. (18) In this reading, sovereignty constitutes the international as a realm in which the exception (the exercise of political power unrestrained by rule of law) is the rule. The exceptional nature of international politics is one of the bases upon which international studies claims a separate disciplinary status, one that makes it different from political science and law.

In this reading the exception is a concept that bears more directly upon understandings of the character of international political order as such. However, it has only a limited use in the theory of international politics. It identifies two forms of politics (politics within the rule of law and politics as the arbitrary exercise of power) and locates them in separate realms (domestic and international). It thus introduces a boundary question for international and political studies. But as a result it suggests that the question of exceptional politics (that is, the limits of legality and different methods of constituting the relation between sovereign political power and the rule of law) is not relevant for political practice within the international system. All international politics is exceptional. Consequently the exception cannot be an issue around which different visions of international political order are defined. It is itself the defining kernel of international politics and therefore not a political problem that invites multiple responses but a single constitutive given.

This article addresses this limitation by focusing on how the concept of "exception" refers to a particular "technique" of formulating competing visions of international political order. It develops the notion of an "international politics of exception" that makes different understandings of the legal-constitutional problem of exception relevant for distinguishing different interpretations of international politics. The fact that one can transpose legal theories focusing on the state and domestic politics to international relations is not surprising given that theories of the state are also theories of the political more generally. In the conclusion I briefly come back to why I think it is important to introduce this reading of the exception more explicitly in international studies today. But first I want to demonstrate relatively extensively what I mean by this third use of the concept of exception in international studies. I do this by examining how, in the wake of 9/11, alternative framings of the relation between rule of law and political practice that seeks to transgress it function as competing visions on the nature of international politics and the political significance of 9/11. I should stress before proceeding that the analysis is set up as a "problem formulation" rather than as a sustained sociological analysis of the importance of legal debates in the politicization of 9/11.

Three methods of formulating the limits of international rule of law and the legitimacy of transgressive international political authority define this international problematique of exception: normativism, decisionism, and institutionalism. They are derived from an intensive debate about the nature of legal and political order in interwar Europe. This particular categorization has been attributed to Carl Schmitt. (19) His work, however, is not simply an outsider's categorization of a highly politically charged debate. He was extremely active in defending one specific position in this debate; one that became explicitly connected to a juridical defense of German fascism. Therefore I want to emphasize that I am not defining the concepts through Schmitt's work, which would move the problem formulation into a defense of a peculiar combination of decisionism and institutionalism. (20) The conceptual triptych was and has been used more widely and can be easily detached from Schmitt's particular rendition of it.

Normative and Skeptical Views of the International Security Order After 9/11

One of the debates that immediately followed the acts of violence in the United States on September 11, 2001, was whether it was an act of war or a crime. (21) This contest of definitions was not simply about finding the adequate analytical label. It was first of all a debate about the normative framework in which policy responses could be formulated and justified. Some questioned whether the new situation could be accommodated within existing frameworks because 9/11 indicated a fundamental change in the nature of war (22) or because existing institutional frameworks and policy instruments failed to prevent or effectively counter this form of transnational violence. (23) As with many other security crises, a more radical questioning of legal and quasilegal frameworks also surfaced. Is the violence of 9/11 and the political reactions to it not simply a reconfirmation that normative frameworks have only a limited relevance, if any at all, in international politics? (24) Is 9/11 an exceptional event that calls for a temporary use of exceptional powers such as unilateral intervention and pre-emptive defense? Or, is it rather a sharp indication of the illusory nature of normativist position in international politics?

Here enters the first, and most familiar, engagement with the international politics of exception. On the one hand, normativist positions try to reconfirm the relevance of international law and to frame exceptional use of political power. On the other hand normative skeptics assert the arbitrary nature of international political power and thus the exceptional nature of international politics as such. What is at stake here is no longer simply the practical realization of law in specific situations but the nature of the relation between legally transgressive international political power and legal frameworks. The exceptionality of 9/11 is no longer limited to a problem of legal categorization. It becomes a challenge to normativist positions that defend the continuing relevance of normative frameworks for holding international political power in check.

Let me start with the skeptical point of view. For skeptics, 9/11 and its aftermath simply reconfirm that international law and institutions are largely fig leaves that hide the way that international politics is determined by the material and moral capacity of states to pursue their interests.
  Multilateralism and unilateralism are just methods for the United
  States: They use them a la carte, as it suits them. The United Nations
  is just an instrument at the service of the American policy. They will
  use it when they need to, through a multilateral approach and if they
  don't need it, they will act outside the framework of the United
  Nations. (25)

Such skepticism questions the relevance of international legality through a critique of the relevance of the UN. The exceptionality of 9/11 consists in reconfirming this reality after an illusionary period following the end of the Cold War in which the normativist belief that international political power could be subsumed within an international legal system gained new momentum.

I come back in the section on systemic sociological approaches and institutionalism to ways in which this skeptical position, often associated with claims about political realism in international relations, can turn into a peculiar form of normative thinking, institutionalism, when it needs to position itself in relation to questions about what needs to be done. But for now this skeptical position functions as the background against which to introduce normativist views of international politics and how they define exceptional circumstances.

Normativism refers to a way of thinking that emphasises the central importance of an autonomous legal order for constraining the arbitrary and personal exercise of political power. It prioritizes the principle of legality, and its institutionalization in positive law and legal institutions, as the condition of legitimate exercise of political power.

While, for skeptics, events like the one indexed by "9/11" are a confirmation of the "reality" of international politics. For normativists these events are a serious problem because they are politically translated into a call for legal exceptions that challenge the restraining and constitutive capacity of the existing normative order. Assertive political responses are called for, but they cannot be framed adequately within the rules defined by the existing international normative security order. Consequently the problem becomes how to allow arbitrary, that is exceptional, political power but without cutting it too far loose from the requirement of international legality. From a normativist point of view, events like 9/11 are exceptional insofar as they significantly intensify the tension between law and power politics. But, unlike the skeptical point of view, normativism resists concluding from this that law is irrelevant.

Normative responses to such events can differ considerably but they share an ambition to limit, if not eliminate (as in Hans Kelsen's attempt to abolish the dualism between state and law), (26) the legitimate space for extrajuridical power politics. One way of defending the continuing relevance of normative frameworks for international politics is to limit the exceptionality of 9/11. The act of violence of 9/11 may indeed have indicated some limitations of the existing normative order that regulates the use of force in international politics but it is not so exceptional that it completely undermines its relevance. Christopher Greenwood's defense of the international legal framework is a good example of this move: "The fact that the events of 11 September may demonstrate a need to re-examine some of the assumptions on which the international legal order rests does not mean that those events occurred in a legal vacuum." (27)

This defense moderates exceptionality by detaching 9/11 from both criminal law and the law of war and linking it to the notion of armed conflict, which is much less regulated but not entirely unregulated in the international normative order. Therefore, rather than discrediting the normative system as such, what is needed is a refocusing of law-making and law-application on the question of armed conflict.

Another defense of the importance of normative frameworks involves arguing that the political debates continue to refer to international normative orders. However exceptional 9/11 was, and however much the political reaction has transgressed the existing normative order, most political decisions do refer to existing legal frameworks when legitimating their policies. The important point is not whether policies remain within the legal framework--they can transgress it--but rather that such transgressions cannot be taken for granted and need to be argued on grounds of exceptional circumstances. According to this argument, as long as political debates about the legitimacy of the use of force continue to refer to questions of legality, they reconfirm that international law matters. If the normative order would be irrelevant, as the skeptics claim, the most powerful states would not try to justify the exercise of political power by reference to its legality; they would just exercise it. A good example is the following statement from Adam Roberts:
  The UN therefore remains, damaged but not destroyed, as one vehicle
  for reaching decisions on the use of force. Paradoxically, even when
  attempts to obtain UN authorisation for force fail, the appeal to UN
  principles may have considerable value.... These claims [i.e., legal
  justifications for the use of force] serve more than the tribute that
  vice pays to virtue: they were recognition that even in the new
  circumstances and hard cases of the twenty-first century, force has an
  unavoidably close relationship to law. (28)

These views integrate the exceptional exercise of political power (the use of force that declines legality for the sake of higher interests or urgencies) back into the normative order by showing that the decision to use force, despite its possible illegality, is a special situation that did not cut the ties between politics and law.

The opposition between legal skeptics and normativist assertions of the continuing relevance of the existing normative framework is rendered more complex by the idea that the global normative security order has reached an interregnum, a constitutional moment in which the existing normative order is dying and a new normative order can be created. (29) This point of view seeks to retrieve a normativist position from a condition in which the normative security system of the United Nations as it took shape in the second half of the twentieth century has been critically discredited. With the skeptics it shares the judgment that 9/11 and its aftermath have given the existing normative security order a fatal blow. Unlike them it does not generalize the crisis of the normative order into a confirmation that normative restraints do not work in international politics. It holds on to the idea that international political power can be restrained by a formalized and rationalized normative system. But for the moment the problem is that the existing normative framework is put under such extreme pressure that it may need re-inventing.

A closer examination of Kofi Annan' speech for the General Assembly of the UN on September 23, 2003, provides an illustration of this idea. This speech responds to the legitimacy crisis of the United Nations after the debacle over the second resolution legitimating the war on Iraq in the first quarter of 2003. The central statement of the speech is the following: "Excellencies, we have come to a fork in the road. This may be a moment no less decisive than 1945 itself, when the United Nations was founded." (30)

Annan recognizes the legitimacy crisis of the existing normative system that is institutionalized in the United Nations. At the heart of his speech is a fear that the nature of the security threat and the unilateral practice of some of the members of the Security Council in their response to it would lead to "a proliferation of the unilateral and lawless use of force." Annan clearly wants to avoid going down this path. His is a road of normativism. But that road has reached a fork. September 11 and its aftermath have led to a radical choice for normativists, "Now we must decide whether it is possible to continue on the basis agreed then [the founding of the UN), or whether radical changes are needed." (31)

The choice that he introduces here is one between integrating the responses to 9/11 within the existing framework that is rooted in the aftermath of World War II or accepting that it radically challenges that framework and calls for drawing up new rules governing international politics and for founding a new network of international institutions. The latter would result in creating an interregnum in which political power is freed from the restraints of the existing normative order. Yet its arbitrary exercise remains tied to a normativist imperative: the requirement to constitute a new normative order. The radical conclusion of the skeptics is thus kept at bay by constituting the arbitrary exercise of power as a temporary condition aimed at the institutionalization of a new normative order. This position thus remains highly normativist. It recognizes the viability and importance of normativity for restraining international political power by asserting simultaneously the effective existence of a normative order before the current crisis and the possibility to create a new one.

The way in which politics and normative orders are intertwined in normativist readings of this distinction between constitutive and constituted power raises far more complex issues than can be mentioned here. One example of what is at stake is H. L. A. Hart's distinction between primary and secondary rules and the use he makes of it in dealing with the limits of understanding legal systems as the habitual obedience of the majority of rules backed by threats of a sovereign. (32) Primary rules require of human beings "to do or abstain from certain action, whether they wish or not." Secondary rules confer powers introducing new primary rules, thus legally framing constituting power. (33) Another example is Bruce Ackerman's intertwining of democratic politics into his understanding of constitutional moments. (34) However, for purposes of the present analysis, the important point is not to unpack the different readings of these issues but to contrast normativist framings of exceptional events with two alternative renditions: decisionism and institutionalism. Therefore let me summarize the argument so far as a way of introducing these two alternative points of view.

So far, the central issue of international politics of exception is the viability of normativism in international politics. Skeptics turn the exceptionality of 9/11 into a challenge to the relevance of international legality and a confirmation that international politics are by definition exceptional. Normativist points of view reduce the radical edge of the exceptionality of 9/11 by reaffirming the status and applicability of international normative frameworks in the current situation while recognizing that the events of and following 9/11 have shown limitations of the existing order. The basic fault line, between skepticism and normativism, is familiar to theorists of international relations. It is one of the central elements of one of the discipline-defining codes: realism versus idealism (or liberalism), the former leaning heavily toward the skeptical view, the latter toward normativism. Is this all there is to the concept of international politics of exception? Is it simply another word for the clash between realist and liberal idealist visions of international political order? The next section breaks open this familiar dichotomy by introducing another position, decisionism. It challenges the normativist point of view from within a legal constitutional perspective rather than from a sceptical angle that seeks to deny the relevance of this perspective for understanding international politics. It is, consequently, neither realist nor normativist.

Decisionism: Normalizing Exceptionality and Universal Sovereignty

Let's start from the observation that, unlike the skeptic and normativist positions presented above, not everyone accepts the exceptionality of 9/11. Kenneth Waltz and Robert Kagan, for example, "normalize" 9/11. (35) They frame it as an important event in a systemic continuity. I want to dwell extensively on both Waltz's (in combination with a piece by John Mearsheimer and Stephen Walt on the war on Iraq) and Kagan's points of view. They represent two alternative ways of handling the question of normativity in international relations: institutionalism (Waltz) and decisionism (Kagan). This section focuses on Kagan's Of Paradise and Power, which illustrates a decisionist point of view in the current international politics of exception. Like normativist positions, decisionism seeks to incorporate normative exceptions into a legal order, but unlike normativism it makes arbitrary exercise of power, and thus exceptions, a normal phenomenon that is inherent in legally defined political orders.

For Kagan, 9/11 does not have the same symbolic importance as for normativists. The consequences of 9/11 largely confirmed long-term developments. "America did not change on September 11. It only became more itself." (36) "The present transatlantic tensions did not begin with the inauguration of George W. Bush in January 2001, nor did they begin after September 11." (37) The desire for national greatness of the United States, the international orientation of US nationalism, the decline of European powers and the rise of the United States in the twentieth century, the turn of Europe to an international rule of law as a historically typical move of the weaker powers, are among the many continuities between the twentieth and the beginning of twenty-first century that the reactions to 9/11 affirmed and possibly brought out more sharply.

But Kagan's discourse does more than reaffirm US identity and its dominant position in the world. He justifies US dominance by means of a decisionist political theory that posits the continuing need for a universal sovereign in global normative orders. (38) A universal sovereign is the "highest, legally independent, underived power" (39) that imposes itself globally. It upholds the international rule of law in crisis situations when the normal processes of lawmaking and application are challenged. A universal sovereign state is exceptional, not simply in the sense that it has preponderant power resources but more importantly because it includes itself in the global normative order by excluding itself from its norms. (40) The universal sovereign is an integral part of the normative order but differs from other states because it can legitimately exempt itself from the application of the international norms. The universal sovereign judges without being judged, disarms without disarming itself, controls the authority of the global institution at the heart of the normative order (the UN) without being controlled by it, and imposes financial policies without imposing them upon itself. (41)

In the current condition, the United States is usually seen as the main power that is able to exercise this universal sovereignty. As Kagan states in relation to transatlantic relations, "What this means is that although the United States has played the critical role in bringing Europe into this Kantian paradise, and still plays a key role in making that paradise possible, it cannot enter the paradise itself. It mans the walls but cannot walk through the gate." (42)

Why can it not enter the paradise? The answer lies with a global application of decisionism. A universal sovereign is a necessary condition for the continuous existence of a paradise of rule of law. In contrast to legal skeptics, a decisionist position does not question the validity and value of international rule of law. Like normativism it recognizes the importance of legally defining political order. Both decisionism and normativism are theories that support the legal form. What makes Kagan's work (like Carl Schmitt's decisionism) fundamentally different from normativism is that the exceptional modality of sovereign international power--that is, it manning the walls, it being simultaneously included and excluded from the normative order--is a necessary and permanent condition of international rule of law. While normativist visions of international political order seek to limit the assertion of arbitrary exercise of power as much as possible, and ideally fully submerge it in legal constraints, decisionist visions make the arbitrary exercise of power a permanent and immanent condition of normative order. (43) Therefore one can argue that normativist readings of the exception as an interregnum do not simply oppose legal skeptic point of views but also, and in the current context probably primarily, decisionist groundings of universal sovereignty as a permanent and immanent condition for international rule of law.

To explain why this politico-legal vision of world order holds that fully containing sovereign power in a legal order would imply the collapse of that order, I turn to Carl Schmitt's discussion of the legal form in Political Theology. One of the central questions around which Schmitt constructs his decisionist theory of sovereignty is "to what extent, with legal-logical necessity, every ascertainment and decision contains a constitutive element, an intrinsic value of form." (44) This is what he calls the problem of the legal form in its substantive sense. The central characteristic of the legal form is the certainty of a decision. Legal practice consists of applying a normative idea to a factual situation, but since the idea cannot realize itself, it requires a decision that crosses the distance between norms (such as the law of war) and facts (such as the presence of Osama Bin Laden in Afghanistan) to justify an intervention (like the intervention in Afghanistan). The essence of the legal form for Schmitt is not the assertion of dominant interests (US or global security) but the guarantee that a decision is made, irrespective of its substantive content.

Normativist positions organize this legal form by enclosing the sovereign, legally underived decision within predefined procedures. They aim at substituting as much as possible objective formal and rational processes for subjective decisions. This "objectification" of political authority through formal and rational rule of law is what is at the heart of the principle of legality. (45) It is informed by the legal positivist dream of creating a gapless legal system that includes definite norms that define the process of lawmaking and law-application in a way that excludes subjective judgments--that is decisions informed by personal, ethical, or emotional impulses. (46)

For decisionists, normativist approaches cannot deal with situations in which the legally highest authority does not have the actual capacity to make a decision and impose it according to the established procedures. In such a case the gap between fact and law cannot be closed. For decisionists this means that the normative system comes under critical strain. In these situations the relation between actual power and legally highest power, which Schmitt calls "the problem of sovereignty," (47) becomes an intense legal problem. Should the one who holds the actual power to impose a decision prevail over the objectified normative processes and the legally highest authority so as to rescue the essence of the legal form, that is, the certainty that a decision is being made? For Schmitt the existence and effective functioning of the normative order depends on the presence of an actual, legally underived power that can decide on the exception, that is, on whether one is in a situation in which the formal and rational processes fail and on what needs to be done in response?

Decisionism thus makes a double move through which the exception becomes a permanent condition of normative order. First, normative orders require a sovereign who is included in the normative order as the guardian of its legal form but who cannot be completely restrained by that order, and who has the actual capacity to decide on the exception--that is, when the gap between fact and law cannot be closed through the normal procedures. That is why Kagan can endorse the view that the United States "must live by a double standard," that the United States sometimes acts unilaterally "not out of passion for unilateralism but only because ... [it] has no choice but to act unilaterally." (48) Second, this notion of sovereignty is personalized. The main focus is firmly on who decides and not on the objectified process through which decisions are reached. It thus reintroduces a subjective competence (the who question) in a normative order that tends to focus on objectified processes (the how question). "What matters for the reality of legal life is who decides." (49) In the domestic context this is the question of who is capable of holding emergency powers that can decide to suspend the law and impose a decision irrespective of the judicial procedures. In international relations this raises the question of which state or group of states can claim universal sovereignty and make sure that the international rule of law (Kagan's paradise) retains its validity in the international system, even in the face of mortal challenges.

It is important to emphasize that decisionism is not a theory of legal crises; it is not a theory that accounts only for those extreme situations in which the existing normative order faces a challenge threatening its survival. Rather it seeks to formulate the normal reality of legal life that is inherent in the legal form. It makes what for normativists is a crisis situation into the general condition of legal life. In decisionism, the sovereign exception is a permanent and inherent element of an effectively functioning normative "paradise."

International decisionism, as can be found in Kagan's work, is therefore not a political and theoretical argument against the international rule of law. Its target is not the relevance of normativity in international politics but the idea that international normative orders can operate as a closed legal system that is fully organized by formal and rational legally defined procedures and offices. Instead it asserts that the international rule of law can only operate under the watchful eye of the universal sovereign who guarantees the conditions of existence of the normative order, against enemies and against factual situations in which existing legal procedures do not result in a decision. The universal sovereign guarantees that a decision will be made and that the essence of the legal form, the imperative to come to a decision, irrespective of its content, is continued. For decisionists, the exceptional exercise of political power by a universal sovereign is thus a normal, permanent, and necessary phenomenon in international relations.

This interpretation of Kagan helps to clarify that the central contention of his text is not simply a critique of European support for the international rule of law. As a decisionist, Kagan endorses the value of an international rule of law and respects, to a certain extent, that Europe wishes to remain within its "paradise." The central bone of contention is that Europe endorses a normativist reading of international rule of law that assumes that the international rule of law and multilateral forms can indiscriminately rule all international politics at the cost of universal sovereignty. For Kagan, as a proper decisionist, the international rule of law can only exist and operate effectively because a sovereign power guarantees that decisions are made. That is the meaning of Kagan's insistence that the United States makes it possible for the "Kantian paradises" to exist. The political purpose of his discourse is therefore not to deny the relevance and validity of international rule of law--what Kagan sees as the European position--but to ground the United States as the only power capable and willing to embrace and exercise this particular modality of power that, following Etienne Balibar, I have referred to as "universal sovereignty." (50)

This interpretation also explains why the exceptional character of 9/11 is played down in decisionist interpretations. For decisionists, exceptional events are normal phenomena, things that happen regularly, and which confirm that the legal order cannot effectively eliminate personalized arbitrary political power. The necessity of the latter is implied by the legal form itself. For Kagan, given that the United States is the only power capable of and willing to be the universal sovereign, 9/11 indeed confirmed what was going on before. The United States is the universal sovereign because of both the formal necessity of a universal sovereign in a system of international rule of law and the specific historical situation in which it finds itself to be the only power capable and willing of exercising this sovereignty.

Kagan combines his decisionist point of view with an endorsement of American identity. He mixes an endorsement of what he call a distinctly and common American assumption into his decisionist critique of normativist readings of international politics. As a result he grounds his decisionism as being an authentically American position: "The policies of the Clinton and Bush administrations, well or ill designed, nevertheless rested on a common and distinctly American assumption--that is, the United States as the 'indispensable nation.'" (51)

Kagan's text thus also reveals that the formal scheme of decisionism is politically tied in with domestic and global nationalist politics. The universal sovereign globally expresses and constitutes not simply the legal form but also the authentic character of a nation. In a way not dissimilar to Schmitt, (52) Kagan ties legal and political theory directly into identity politics and the ideological mobilization in the name of national unity. The notion of "universal sovereign" thus makes a formal constitutional critique of normativism into a nationalist statement.

The decisionist position moves the interpretation of international politics of exception beyond the realist/liberal or skepticism/normativism distinction. One cannot easily map the debate between normativism and decisionism onto the realist/liberal distinction. Decisionism is not a legally skeptical theory. Normativism and decisionism share a need to define a place for normative order at interstice between politics and law. The central legal and political problem for both is the nature of normative order and the relation between an international normative order and the role of extra-normative political power. Unlike skepticism, which seeks to delete constitutional legal dimensions from international relations, both decisionism and normativism define the nature of politics and political order through a constitutional legal gaze. While the latter interpret international politics on the basis of their understanding of the nature of constitutional legal orders, skepticism understands the nature of international politics on nonlegal grounds, such as a utilitarian framing of rational self-interested actors.

The next section further widens the concept of international politics of exception and further complicates the simple distinction between realist skeptics and liberal normativists by showing how systemic sociological approaches of legal skeptics, like Waltz and Mearsheimer, can shape-shift into normative visions that resemble a third tradition in constitutional legal thinking: institutionalism.

Sociology and Institutionalism: Against the Exception

In both normativism and decisionism the central political problem is the relation between extrajuridical political power--constituting power and universal sovereignty, respectively--and the legal order. They conceptualize the relation differently but share the idea that the concept of international politics is shaped at the interstice between the two. That is why for both, the question of the exception, which refers to the instable nature of this relation, defines a central political and legal problem.

Systemic sociological interpretations of international politics enter this normative debate by challenging the legal-constitutional concept of exception. Instead of defining the interstice between politics and law, the exception refers to a question of the systemic continuity or discontinuity of the objective sociopolitical order of international relations. I use two short pieces, one by Waltz (53) and one by Mearsheimer and Walt, to illustrate this a-exceptionalist theoretical move. The important point that I wish to illustrate through a reading of neorealist theory is that such a sociological move posits law-like general rules that can be translated into normative political positioning that resembles a particular legal theory, institutionalism. The latter was a central part of the legal-constitutional debates that framed the distinction between normativism and decisionism in interwar Europe. (54) The argument here is thus that the normative core of a systemic theory like neorealism is reminiscent of institutionalism.

The core idea of institutionalism is that law is an expression of an objective sociopolitical order and not of a legal system, as in normativism, or a decision, as in decisionism. (55) Law expresses existing hierarchies of institutions that each are defined by a founding principle and that taken together are expressions of a natural order. (56)

In "The Continuity of International Politics," Waltz asks: "Have the terrorist attacks produced a strategic revolution, or do they leave the underlying conditions of international politics largely intact?" (57) He concludes that 9/11 is not an exceptional event. It is one of many recurrent crises that are typical of international politics. The terrorist attack did not "change the two main bases of international politics [the gross imbalance of power and the existence of nuclear weapons]." (58)

This "normalization" of 9/11 is effected through a double move. First he identifies terrorism as an instrument of the weak who because of their weakness do not seriously challenge the security of powerful states. Second Waltz questions the revolutionary potential of the events of 9/11 that some ascribe to them. They are not structurally changing the conditions and modalities of international politics; or, as Waltz concludes: "although a mile wide, the anti-terrorist coalition is only an inch deep." (59)

The important point for the discussion here is that this interpretation introduces a sociological understanding of exception. In sociological interpretations, the key political debates about exception do not focus on alternative conceptualizations of the relation between arbitrary power and the restraining effects and political status of law. Instead, the debates are about conflicting accounts of the objective reality of international politics and whether or not events have broken its normal, institutionalized development. Normality rather than normativity of sociopolitical relations is the focal point.

How does Waltzian neorealism foreground the objective sociopolitical order as the defining criterion in the question of exception? Two positions are of central importance: legal skepticism and epistemological positivism. Legal skepticism does the groundwork for the shift from normativity to normality. The rule of law and the legal form are seen to be largely irrelevant in international politics. International relations is the nonhierarchical realm in which like-unites (states) interact without a global sovereign power imposing a rule of law. (60) Extrajuridical exercise of power dominates and is cut loose from any significant legal restraints. International politics is thus exceptional by definition. As a result exceptional power, the legal form and the nature of the rule of law, are not the central categories through which the modalities of international power can be defined, except to differentiate it in a very general way from domestic political power.

Equally important is a methodological choice for epistemological positivism and the defense of a social science of international relations against an international political theory or philosophy. (61) The sharp separation of facts from values implies that different interpretations of the modalities and conditions of political power cannot be judged on the basis of normative criteria. They have to justify themselves as the best account of the factual reality of the sociopolitical order of international relations. The requirement of a single method of research provides the common symbolic framework on the basis of which one can retain the competition between alternative accounts of international politics as a debate about "facts." It guarantees some common understanding about what a "fact" is and how the factual impact of an event can be established. It keeps moral, normative, and metaphysical judgments at bay.

This epistemological positivism plays a crucial role in letting the criterion of "normality" of practice--that is, a relation to the normal, objectified reality--prevail over normativity--that is, the relation to norms. It makes judgments of the political significance of events like 9/11 dependent on a "social scientific" debate of whether existing theories accounting for the objective sociopolitical order are still good enough. (62) In this "social scientific" debate, the question of exception transfigures from a normative issue about the legitimate transgression of rule of law into an empirical question of radical change. An event is no longer exceptional because it justifies the suspension of the rule of law or because it raises the specter of the universal sovereign but because it radically changes the sociopolitical order.

So far this section has simply introduced a sociological reading of the exception and how such an interpretation changes the terms of the debate, as captured in the phrase "from normativity to normality." But what is the relevance of such sociological readings for an article that seeks to introduce a concept of international politics of exception that refers to competition between constitutional legal framings of international political order, to a contest of visions of international political order that derive from competing interpretations of the nature of legal order? When sociological approaches, like Waltzian neorealism, seek to enter a political contest of the legitimacy of extraordinary use of power they transfigure the factual normality that they endorse into normative political criteria. The sociological rules that identify the objective political order shape-shift into norms that evaluate the legitimacy of political practice from within a pre-given institutional order.

Let me focus on the key concept of neorealism's account of the objective sociopolitical order of international relations: anarchy. International anarchy is not simply the absence of a global sovereign and a global rule of law. It also frames the objective sociopolitical international order as a market place in which states compete for power and security. The neorealist market is an objective sociopolitical order that predisposes its units, in this case states, to act instrumentally and calculate power in relative rather than absolute terms. Although the market is presented as an objective structure that characterizes international politics, it is also a normative institution. Market competition is inscribed with normative principles restraining competition. Two stand out among these: the prohibition against monopolizing power (monopoly would transform the system into a hierarchical one in which a state or a world government can claim universal sovereignty) and the obligation to calculate policy options rationally in terms of their contribution to national security. In intense moments of political contestation, the sociological concept of the market relying on rules of action based on economic rationalism can shift to a normative institution expressing general norms constraining the arbitrary exercise of power in the market. This normative concept of the market translates politically into an opposition to both ideological politics (driven by value rationality rather than instrumental rationality (63) and expansionist policies that strive to monopolize power and that calculate politics in terms of absolute rather than relative gains.

The political and power-restraining effect of such neorealist inscriptions of power politics can be seen at work in Mearsheimer's and Walt's argument against the intervention in Iraq in 2003. (64) They argued that the intervention is unnecessary because Saddam Hussein is a rational actor that can be contained. Mearsheimer and Walt introduce various examples that show Saddam Hussein as a rational leader calculating power relations in terms of Iraq's vulnerability. These examples suggest that when the United States and its allies use credible threats and clearly set out the lines that cannot be crossed, Iraq could be deterred from acquiring and using WMDs. As long as Saddam Hussein remains a rational actor who will calculate power relations in terms of reducing Iraq's vulnerability, there is no need for a preventive war; hence, the title of the piece "An Unnecessary War."

This argument shows how the economic form and rationalism of neorealism introduces normative restraints of power politics. Whether he is evil toward his own people, or whether he breaches UN resolutions, or whether Iraq is in urgent need of democratization, or whether the US administration wishes to pursue ideological objectives are not the central criteria for "regulating" the use of force in international relations. Instead the criteria are derived from the economic form and instrumental rationalism. This shape-shifting of sociological rules and conditions into general norms allows neorealist visions to intervene politically as a normative vision of restraints on the arbitrary exercise of power.

Does that mean that neorealists and other systemic sociologists are closet normativists? They are definitely not. They posit the rules differently from normativists. Rules are not formulated through and from within legal institutions and an objectified legal system. They are means and expressions of an existing historical political order. Neo-realism's normative shape-shifting is in that sense somewhat reminiscent of an important alternative theory of normative order in interwar Europe that competed with decisionism and normativism: legal institutionalism. Since this article seeks to introduce how international politics of exception bring traditions of constitutional legal thinking and legalistic conceptions of political order into political play, I want to briefly indicate what it implies to read normative positioning, like the one within neorealism, in terms of this tradition.

Georges Renard's "institutionalism" is a legal theory that treats institutions rather than individuals as the central legal subjects. (65) It also emphasizes the importance of administrative law and rulings. But more important for my purposes here, Renard's institutionalism formulates a Thomistic vision of normative order that emphasizes the idea of a common good that is expressed and actualized in the founding ideas of existing institutions.

For Renard, institutions are founded in an idea that is worked out and sanctioned in their development. (66) "The institution is a communion of people in an idea." (67) The founding is not procedural, in the sense of being an outcome of following formalized legal or quasilegal procedures like in normativism. Neither is it to be thought of in terms of the human faculty of creating out of one's own will like in decisionism. Rather the founding is an orientation of forces in terms of a principle that is immanent in the natural order: "Sovereignty resides neither in the prince nor in the people, it resides in a Principle." (68) Hence the idea that this theory lets rules emerge from the existing sociopolitical order that is conceptualized as the natural order. The international system (and in neorealist terms, anarchy) can then be interpreted as an institution that articulates a founding principle of equality between states and the common good of security that institutes power balancing and economic rationality rather than empire or a system of total wars driven by value rationality. For Renard, the rules of international relations derive from the existence of a res publica, a common good "whose conservation and development requires, not simply mutual concessions, but a rational and harmonious orientation of national politics." (69)

The model of judicial judgment in Renard's theory is administrative law and courts like military tribunals or civil services setting out their own internal court procedures. Procedures and judgments need to develop from within an institution since they need to be in line with the institutional working out of the original founding principle and the objective reality of the institution. Institutional normativity becomes self-enclosed. A universal legal system that develops general rules for individuals that can be applied independent from the specific institutions in which the individuals function does not have priority over administrative courts and their procedures of decreeing and judging. One of the consequences is that the tension between formal legal frameworks and arbitrary politics, which is here exemplified by administrative law and commissions, is not really a defining element of normative order for institutionalism. (70) The defining elements remain the principles expressed in existing institutions and their practical functioning.

For Renard founding ideas are not arbitrary. His vision is Thomistic in the sense that these institutions each articulate a common good that reflects a natural order. The different institutions and the hierarchies between them are part of an organic whole that is united in a divine common good that it articulates and a natural law that it realizes. I will not dwell on this Thomistic element but it is important because, unlike Schmitt's appropriation (71) of institutionalism as simply being a constitutional condoning of the factually existing institutions, Renard's institutionalism is based on a tradition of natural law that unites diverse institutions and the hierarchies between them in a divine order organized around a concept of common good. It also emphasizes that institutionalism subordinates human decision, which is so central to decisionism, to naturally given institutions and rules.

When religious beliefs give way to scientific reason the divine element moves to the background. Natural law is then accessed via scientific inquiry into the nature of things; natural law is given by observation (une donnee de l'observation). (72) While decisionism supports the dictum that authority rather than truth prevails as the condition of order, the institutionalist approaches challenge this by making truth rather than authority the criterion for defining the modalities of political power. Also normativist approaches, like legal positivism, emphasize the importance of truth against authority. But while the latter's truth derives from legal reasoning, the institutionalist truth derives from applying scientific methods that "observe" natural law.

In turning normative along institutionalist lines, neorealist sociology does not forfeit its scientific reasoning but turns it into a method of unpacking the objective reality of an institution as the expression of a founding idea. The scientific truth therefore becomes a method of expressing and sanctioning this original founding idea, which in the more explicit Thomistic version of George Renard ultimately cannot be but an expression of the divine order. As Franz Neumann remarks, such a vision tends to reduce statements about normative order to reassertions of what it considers to be existing institutions. (73) But it does not have to condone existing policies. That depends on what it "sees" as being the idea that founds an institution as part of the natural order. As Mearsheimer and Walt's intervention showed, systemic sociological frameworks that posit a universal natural order grounded in an idea can sanction particular policies as going against the rules defining the natural state of affairs.

Interpreting systemic sociologies, which formulate political choices on the basis of universal and timeless rules that characterize the objective reality of the international system, in terms of legal institutionalism brings out how their "social scientific" interpretations resemble a particular normative tradition that lets rules emerge from and fully embeds them into an existing objectified, or even better, naturalized institutional order.

At first sight, neorealist interpretations shift the question of exception from the international normative order to the transformation and continuation of the existing order. The concept of exception refers not to a constitutional question but to a question of radically disruptive change of the objectified institutional conditions of international politics. Normativity seems to have been displaced by normality. But when looking closer at how neorealism translates into political positioning in an international politics of exception it starts looking very much like Renard's institutionalism but without recognizing its Thomistic flavor. It introduces a normative vision of international political order in which the concept of exception disappears in an understanding of international society as an organic unity organized as the expression and continuous development of a founding idea that actualizes natural law and a universal common good. In that sense, when drawn into an international politics of exception neorealism's legal skepticism may still end up with a normative vision of international politics that is strongly reminiscent of a particular tradition in constitutional legal theory: institutionalism.

The International Politics of Exception: Legal Constitutional Theories and International Relations

The question posed in this article was "What does it mean to speak of exceptional international politics?" In response, I have set out a concept of "exception" that refers to a method of formulating competing views of international political order at the interstice between law and politics. In this political constitutional reading of the exception concepts of international political order are formulated in the shadow of constitutional legal theory. The concept of "international politics of exception" then refers to situations in which factual statements about the extraordinary nature of events like the clandestine violence of 9/11 become integrated into a legal and political debate in which competing interpretations of the nature of international political order are primarily derived from competing understandings of the nature and limits of normative, legal order.

Not realism and liberalism but normativist and decisionist visions are the main contenders in such a politics of exception. They structure debates about the nature of international order in terms of competing interpretations of the location and status of extrajuridical political practice in international rule of law. Normativist approaches prioritize legal restraints of international political power. They seek to limit law transgressing political practice to highly exceptional circumstances, such as violence that cannot be contained within the existing legal frameworks. But even in these situations normativism asks for limiting the scope and time of extrajuridical exercise of international power as much as possible by tying it as closely as possible to normative requirements. Decisionist positions on the other hand make extra-juridical exercise of power a permanent requirement for the constitution and proper functioning of international rule of law. International rule of law depends on a state claiming and willing to enact universal sovereignty. This state is part of the international normative order but cannot be fully restrained by it. The reason for this is that it needs to guard that the legal form--the necessity to close the gap between international law and international political events--is maintained under all conditions. While the normativist positions represent a tradition in liberal thinking, the decisionist position cannot be equated with realism. It is a legal-constitutional theory of political power that formulates international order as a normative order. Unlike realism, decisionism is thus not a legal skeptic theory.

The realist position is an element in a third position in the international politics of exception that combines legal skepticism with legal institutionalism. This is a vision that deploys the legal constitutional concept of "exception" to draw a gap between domestic politics and international politics. While the former is ruled by law the latter is beyond rule of law. There is no international rule of law and therefore it does not make sense to derive visions of international political order from interpretations of the nature and limits of international normative order. Conceptualizing international political order then becomes a sociological exercise in which one observes the rules that define the natural practice of international politics.

However, as argued in relation to two neorealist texts, when these sociological visions formulate sociological rules in universal and timeless terms and when they politically position themselves within an international discussion of the legitimacy of practices that transgress a given normative order, they become reminiscent of a third legal constitutional theory, institutionalism, that competed with normativist and decisionist conceptions of normative order in the early twentieth century. The institutionalist position remains anti-exceptionalist; the constitutional concept of exception is not central for the definition of normative political order. However, it does share with the other two a framing of international political order in line with traditions in legal thinking. It relocates the rule of law from a universally institutionalized system to administrative expressions of and judgments based on natural principles that are expressed in existing institutions. The latter are ordered hierarchically as the expression of a natural, if not divine, order. Insofar as realist skepticism translates into legal institutionalist points of view, it frames international normative order in a way that resembles a secularized version of Neo-Thomistic thinking at the beginning of the 20th century.

Why is it relevant to return to this legal constitutional conception of "the exception" today? Why draw attention to legal constitutional interpretations of international political order for which order is formulated at the interstice between rule of law and its political transgressions? Since 1989 claims about extraordinary times and the need for the use of extraordinary power have been rife in the international politics of security. The shift from ideological-military containment of rival political systems during the Cold War to debates about the legitimacy of humanitarian intervention (Somalia, Haiti, Rwanda, Bosnia, and Kosovo being exemplary cases), the use of force to uphold international law (Iraq in the early 1990s), the reinstitutionalization of international humanitarian law (the formation of the International Criminal Court), the legitimacy of pre-emptive defense (US strategic doctrine post-9/11), and the detention of people in "administrative" centers (Guantanamo Bay and detention centers for refugees) have made the judicialization of international politics, the question of the limit of rule of law, and the assertion of transgressive international political authority key issues in the reconfiguration of the international political order.

The concept of "exception" introduced in this essay does precisely refer to these issues. It draws attention to how political contestations of international security policy may be reconfiguring international political order in the shadow of legal constitutional visions of politics. If this is indeed happening then the ordering effects of the politics of security do not simply follow from fixing new global enemies and friends and the inscription of one's relation to these enemies in historical narratives. (74) At least equally important is then the method of inscribing extraordinary global political authority in and out of an international legal order. When the latter issue becomes a central stake in the international politics of security, it makes sense to revisit debates in legal and political thought that developed conceptions of the nature of political practice precisely through framing the nature of extra-juridical exercise of power and the conditions of its legitimacy. Such revisiting will contribute to understanding the specific modalities of legal-constitutional conceptualizations of international order that are at play in such a politics of security.

To highlight legal constitutional methods of formulating competing visions of international political order and their presence in contemporary political and academic debate is not to suggest that they dominantly shape international ordering practice. I have not sought to develop a sociological analysis of how important legal-constitutional traditions of thought are now shaping contemporary politics and international studies. My concern here has been conceptual rather than sociological. Yet one of the aims of revisiting this tradition of thought and showing its presence in contemporary debates in international relations is precisely to draw attention to the question of how pervasive legal constitutional interpretations of the nature of politics are in contemporary international relations, both as discipline and practice.


I would like to thank Claudia Aradau, Costas Constantinou, Mervyn Frost, Vivienne Jabri, Raia Prokhovnik, Michael Saward, and Antje Wiener for helpful comments on earlier drafts of this article. Thanks also to the British Academy for an overseas travel grant.

1. Tony Blair, Speech to the U.K. Labour Party Conference, October 2, 2001.

2. Kofi Annan, "UN must Confront Threats and Challenges," UN Secretary General's address to the General Assembly, September 23, 2003.

3. Carl Schmitt, The Crisis of Parliamentary Democracy (Cambridge, MA: MIT Press, 1985 [1923]); Jens Bartelson, "Making Exceptions: Some Remarks on the Concept of Coup d'etat and Its History," Political Theory 25, no. 3 (1997): 323-346.

4. For example, Jenny Edkins, Poststructuralism and International Relations: Bringing the Political Back In (Boulder, CO: Lynne Rienner, 1999).

5. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, CA: Stanford University Press, 1998); Giorgio Agamben, Etat d'exception: Homo Sacer (Paris: Seuil, 2003); Sergei Prozorov, "X/Xs: Toward a General Theory of the Exception," Alternatives 30, no. 1 (Oct.-Dec. 2005): 81-112; Carl Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty (Cambridge, MA: MIT Press, 1985 [1922]).

6. Prozorov, note 5.

7. Janice Bially Mattern, Ordering International Politics: Identity, Crisis, and Representational Force (New York: Routledge, 2005), p. 3.

8. Michael W. Reisman, "Kosovo's Antinomies," American Journal of International Law 93, no. 4 (1999): 860.

9. Michael W. Reisman, "International Law After the Cold War," American Journal of International Law 84, no. 4 (1990): 859-866.

10. David Campbell, Writing Security: United States Foreign Policy and the Politics of Identity (Minneapolis: University of Minnesota Press, 1992); James Der Derian, "The Value of Security: Hobbes, Marx, Nietzsche, and Baudrillard," in David Campbell and Michael Dillon, eds, The Political Subject of Violence (Manchester: Manchester University Press, 1993), pp. 94-113; Jef Huysmans, "Security! What Do you Mean? From Concept to Thick Signifier," European Journal of International Relations 4, no. 2 (1998): 226-255; Ole Waever, "Securitization and Desecuritization," in Ronnie Lipschutz, ed., On Security (New York: Columbia University Press, 1995), pp. 46-86; Ole Waever, "European Security Identities," Journal of Common Market Studies, 34, no. 1 (1996): 103-132; R. B.J. Walker, "Security, Sovereignty and the Challenge of World Politics," Alternatives 15, no. 1 (winter 1990): 3-27; Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999).

11. Wendt, note 10.

12. R. B.J. Walker, "Security, Sovereignty, and the Challenge of World Politics," note 10; R. B.J. Walker, "The Subject of Security," in Michael C. Williams and Keith Krause, eds., Critical Security Studies. Concepts and Cases (London: UCL Press, 1997), pp. 61-81.

13. Agamben, Homo Sacer, note 5; Agamben, Etat d'exception, note 5; Bartelson, note 3; Jef Huysmans, "Minding Exceptions: Politics of Insecurity and Liberal Democracy, Contemporary Political Theory, 3, no. 3 (2004): 321-341; Prozorov, note 5; William E. Scheuerman, ed., Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge, MA: MIT Press, 1994); Schmitt, Political Theology, note 5; Rens van Munster, "The War on Terrorism: When the Exception Becomes the Rule," International Journal of Semiotics of Law 17 (2004): 141-153; R. B.J. Walker, "Conclusion: Sovereignties, Exceptions, Worlds," in Jenny Edkins, Veronique Pin-Fat, and Michael J. Shapiro, eds., Sovereign Lives: Power in Global Politics (New York: Routledge, 2004), pp. 239-249.

14. David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Herman Heller in Weimar (Oxford: Oxford University Press, 1997), p. 172; Otto Kirchheimer, "Legality and Legitimacy" in William E. Scheuerman, ed., The Rule of Law under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer (Berkeley: University of California Press, 1996), p. 46; Scheuerman, note 13, pp. 68-69; Schmitt, Political Theology, note 5; Max Weber, Economy and Society (Berkeley: University of California Press, 1978), pp. 812, 882.

15. Agamben, Homo Sacer, note 5; Agamben, Etat d'exception, note 5; Schmitt, Political Theology, note 5).

16. Waever, "Securitization and Desecuritization," note 10; Barry Buzan, Ole WAEver, and Jaap de Wilde, Security: A New Framework for Analysis (Boulder, CO: Lynne Rienner, 1998).

17. Jens Bartelson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995); Jef Huysmans, "Discussing Sovereignty and Transnational Politics" in Neil Walker, ed., Sovereignty in Transition (Oxford: Hart, 2003), pp. 209-227; and R. B.J. Walker, Inside/Outside: International Relations as Political Theory (Cambridge: Cambridge University Press, 1993).

18. Martin Wight, "Why Is There No International Theory?" in Herbert Butterfield and Martin Wight, eds., Diplomatic Investigations: Essays in the Theory of International Politics (London: Allen & Unwin, 1966), p. 33.

19. Carl Schmitt, Ueber die drei Arten des rechtswissenschaftlichen Denkens (Berlin: Duncker & Humblot, 1993 [1934]).

20. Etienne Balibar, "Preface. Le Hobbes de Schmitt, le Schmitt de Hobbes" in Carl Schmitt, Le Leviathan dans la doctrine de l'etat de Thomas Hobbes: Sens et echec d'un symbole politique (Paris: Seuil, 2002), pp. 7-65.

21. Michael Howard, "What's in a Name? How to Fight Terrorism," Foreign Affairs 81, no. 1 (2002): 8-13.

22. For example, Paul Piccone, "So, This Is the Brave New World!" Telos 120 (2001): 174-185; Gary Ulmen, "The Military Significance of September 11," Telos 121 (2001): 174-184.

23. For example, Ashton B. Carter, "The Architecture of Government in the Face of Terrorism," International Security 26, no. 3 (2001/02): 5-23; Donald Cameron Watt, "The 'War' Against Terror and the Need for Institutional Innovation," Political Quarterly 73, no. 3 (2002): 288-298.

24. Although distinguishing norms from law can be important (for differentiating legal from sociological interpretations), I do not make a distinction between them in this article. I use norms as law-like rules. For an extensive discussion of and an argument for developing such a distinction in international studies, see Friedrich V. Kratochwil, Rules, Norms, and Decisions: On The Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989).

25. Quoted in Francesca de Chatel, "Interview with Boutros Boutros Ghali: The United Nations Is Just an Instrument at the Service of American Policy," The Guardian, March 17, 2003.

26. Hans Kelsen, Pure Theory of Law (Berkeley: University of California Press, 1967).

27. Christopher Greenwood, "International Law and the 'War against Terrorism,'" International Affairs 78, no. 2 (2002): 301.

28. Adam Roberts, "Law and the Use of Force after Iraq," Survival 45, no. 2 (2003): 53.

29. Bruce Ackerman, "Constitutional Politics/Constitutional Law," Yale Law Journal 99, no. 2 (1989): 453-547; Bruce Ackerman, We the People: Foundations (Cambridge, MA: Harvard University Press, 1991); Bruce Ackerman, We the People: Transformations (Cambridge, MA: Harvard University Press, 1998).

30. Kofi Annan, note 2.

31. Ibid.

32. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1994).

33. Ibid., p. 81.

34. Ackerman, We the People: Foundations, note 29.

35. Kenneth N. Waltz, "The Continuity of International Politics" in Ken Booth and Tim Dunne, eds., Worlds of Collision: Terror and the Future of Global Order (London: Palgrave, 2002), pp. 348-353; Robert Kagan, "Power and Weakness," Policy Review 113 (2002) []; Robert Kagan, Of Paradise and Power: America and Europe in the New World Order (New York: Knopf, 2003).

36. Kagan, Of Paradise and Power, note 35, p. 85.

37. Ibid., p. 42.

38. Etienne Balibar, L'Europe, L'Amerique, la Guerre: Reflexions sur la mediation europeenne (Paris: Editions La Decouverte, 2003).

39. Schmitt, Political Theology, note 5, p. 17.

40. Balibar, L'Europe, L'Amerique, la Guerre, note 38, p. 134.

41. Ibid., pp. 134-141.

42. Kagan, Of Paradise and Power, note 35, pp. 75-76.

43. Kelsen, note 26.

44. Schmitt, Political Theology, note 5, p. 26.

45. Ibid., chap. 2.

46. Franz L. Neumann, "The Change in the Function of Law in Modern Society" in William E. Scheuerman, ed., The Rule of Law under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer (Berkeley: University of California Press, 1996 [1937]), pp. 114-115; Franz L. Neumann, "The Concept of Political Freedom" in Scheuerman, ed., The Rule of Law under Siege, pp. 203-204.

47. Schmitt, Political Theology, note 5, p. 18.

48. Kagan, Of Paradise and Power, note 35, p. 99.

49. Schmitt, Political Theology, note 5, p. 34.

50. Balibar, L'Europe, L'Amerique, la Guerre, note 38.

51. Kagan, Of Paradise and Power, note 35, p. 94.

52. For example, Schmitt, The Crisis of Parliamentary Democracy, note 3, p. 75; Schmitt, Political Theology, note 5, pp. 49-53.

53. Waltz, "The Continuity of International Politics," note 35; John Mearsheimer and Stephen M. Walt, "An Unnecessary War," Prospect, March 2003, pp. 10-12.

54. For a succinct and excellent discussion of institutionalism in this context, Franz L. Neumann, Behemoth: The Structure and Practice of National Socialism 1933-1944 (London: Frank Cass and Co., 1967 [1944]), pp. 448-452.

55. Schmitt, Ueber die drei Arten des rechtswissenschaftlichen Denkens, note 19.

56. Neumann, Behemoth, note 54; Georges Renard, La theorie de l'institution: essai d'ontologie juridique (Paris: Editions Sirey, 1930); Georges Renard, L'institution: fondement d'une renovation de l'ordre social (Paris: Flammarion, 1933).

57. Waltz, "The Continuity of International Politics," note 35, p. 350.

58. Ibid., p. 353.

59. Ibid.

60. Kenneth N. Waltz, Man, the State and War: A Theoretical Analysis (New York: Columbia University Press, 1954); Kenneth N. Waltz, Theory of International Politics (New York: McGraw-Hill, 1979).

61. An excellent example of such a move in one of the debates that reigned in international studies in the 1980s and 1990s is Keohane's article "International institutions: Two Approaches," International Studies Quarterly 32, no. 4 (1988): 379-396.

62. Robert O. Keohane, Power and Governance in a Partially Globalized World (London: Routledge, 2002), p. 272.

63. Weber, note 14, pp. 24-25.

64. Mearsheimer and Walt, note 53.

65. Renard, La theorie de l'institution, note 56; Renard, L'institution, note 56.

66. Renard, La theorie de l'institution, note 56, pp. 32-33, 65, 234-235.

67. Ibid., p. 95, my translation.

68. Ibid., p. 568, my translation.

69. Ibid., p. 191, my translation.

70. Ibid., p. 215.

71. Schmitt, Ueber die drei Arten des rechtswissenschaftlichen Denkens, note 19.

72. Renard, La theorie de l'institution, note 56, p. 390.

73. Neumann, Behemoth, note 54, pp. 448-452.

74. For example, David Campbell, "Time is Broken: The Return of the Past in the Response to September 11," Theory and Event 5, no. 4 (2002).

Jef Huysmans*

*Department of Politics and International Studies, The Open University, Walton Hall, Milton Keynes, MK7 6AA, UK. E-mail:
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Publication:Alternatives: Global, Local, Political
Date:Apr 1, 2006
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