Still Waiting for the Barbarians: What is New About Post-September 11 Exceptionalism?
Copyright © The Cardozo School of Law of Yeshiva University, 2007
Abstract
In the unfolding narrative of September 11, the question of the relationship between the ordinary rule of law and the state of exception occupies a central place in both public discourse and official rhetoric. Exceptional threats seem to call for exceptional responses that derive their authority from outside the normal rule of law. Moreover, regarding matters of both procedural and substantive law, the rhetoric of the exceptional situation requires officials and citi~ens alike to balance the necessity of state security against the demands of civil liberties. This essay argues that within the rhetoric of balance, what begins as coexisting domains, gives way not only to conflict, but also to displacement of the rule of law by the law of exception. Examining this move from coincidence to displacement in the narrative of exception, this essay argues that the tension between the exception and the rule of law is unsustainable. As J.M. Coetzee's novel, Waiting for the Barbarians illustrates, exceptional practices, such as torture, conducted against the perceived barbarian threat do not remain circumscribed within the state of exception, but inevitably act upon and displace the ordinary rule of law.