The State Of Exception

In Judaism, life is almost always the highest value, just as self-preservation is usually the highest value of any nation state.

No legal system, no constitution, is able to maintain itself in all contingencies. Sometimes a nation to survive must ignore its own laws and turn over authority to a sovereign (the one who decides the state of exception to the law). The United States aka Weimerica seems headed in this direction.

According to the Wikipedia entry on Carl Schmitt:

On Dictatorship was followed by another essay in 1922, titled “Politische Theologie” (political theology); in it, Schmitt, who at the time was working as a professor at the University of Bonn, gave further substance to his authoritarian theories, analysing the concept of “free will” influenced by Christian-Catholic thinkers. The book begins with Schmitt’s famous, or notorious, definition: “Sovereign is he who decides on the exception.” By “exception,” Schmitt means the appropriate moment for stepping outside the rule of law in the public interest. (See discussion of On Dictatorship above.) Schmitt proposes this definition to those offered by contemporary theorists of sovereignty, particularly Hans Kelsen, whose work is criticized at several points in the essay.

The book’s title derives from Schmitt’s assertion (in chapter 3) that “all significant concepts of the modern theory of the state are secularized theological concepts” —in other words, that political theory addresses the state (and sovereignty) in much the same manner as theology does God.

A year later, Schmitt supported the emergence of totalitarian power structures in his paper “Die geistesgeschichtliche Lage des heutigen Parlamentarismus” (roughly: “The Intellectual-Historical Situation of Today’s Parliamentarianism”, translated as The Crisis of Parliamentary Democracy by Ellen Kennedy). Schmitt criticized the institutional practices of liberal politics, arguing that they are justified by a faith in rational discussion and openness that is at odds with actual parliamentary party politics, in which outcomes are hammered out in smoke-filled rooms by party leaders. Schmitt also posits an essential division between the liberal doctrine of separation of powers and what he holds to be the nature of democracy itself, the identity of the rulers and the ruled. Although many critics of Schmitt today, such as Stephen Holmes in his The Anatomy of Anti-Liberalism, take exception to his fundamentally authoritarian outlook, the idea of incompatibility between liberalism and democracy is one reason for the continued interest in his political philosophy.[23]

The Concept of the Political[edit]
Schmitt changed universities in 1926, when he became professor of law at the Handelshochschule in Berlin, and again in 1932, when he accepted a position in Cologne. It was from lectures at the Deutsche Hochschule für Politik in Berlin that he wrote his most famous paper, “Der Begriff des Politischen” (“The Concept of the Political”), in which he developed his theory of “the political”.[24] Distinct from party politics, “the political” is the essence of politics. While churches are predominant in religion or society is predominant in economics, the state is predominant in politics. Yet for Schmitt the political was not an autonomous domain equivalent to the other domains, but rather the existential basis that would determine any other domain should it reach the point of politics (e.g. religion ceases to be merely theological when it makes a clear distinction between the “friend” and the “enemy”). The political is not equal to any other domain, such as the economic, but instead is the most essential to identity.

Schmitt, in perhaps his best-known formulation, bases his conceptual realm of state sovereignty and autonomy upon the distinction between friend and enemy. This distinction is to be determined “existentially,” which is to say that the enemy is whoever is “in a specially intense way, existentially something different and alien, so that in the extreme case conflicts with him are possible.” (Schmitt, 1996, p. 27) Such an enemy need not even be based on nationality: so long as the conflict is potentially intense enough to become a violent one between political entities, the actual substance of enmity may be anything.

Although there have been divergent interpretations concerning this work, there is broad agreement that “The Concept of the Political” is an attempt to achieve state unity by defining the content of politics as opposition to the “other” (that is to say, an enemy, a stranger. This applies to any person or entity that represents a serious threat or conflict to one’s own interests.) Additionally, the prominence of the state stands as a neutral force dominating potentially fractious civil society, whose various antagonisms must not be allowed to affect politics, lest civil war result.

What is the Jewish answer to this statement: “Sovereign is he who decides on the exception.”

Sometimes rabbis are called upon to make emergency decrees to preserve the community by uprooting traditional Torah practices.

According to Wikipedia:

Classical Jewish law granted rabbinic sages wide legislative powers. There are two powerful legal tools within the halakhic system:

Gezeirah: “preventative legislation” of the classical rabbis, intended to prevent violations of the commandments
Takkanah: “positive legislation”, practices instituted by the rabbis not based (directly) on the commandments as such, e.g. rabbinical mitzvot.
However, the general term takkanah is used to refer to either gezeirot or takkanot.

Takkanot, in general, do not affect or restrict observance of Torah mitzvot. However, the Talmud states that in exceptional cases, the Jewish sages had the authority make a gezeirah even if it would “uproot a matter from the Torah”. In Talmudic and classical halakhic literature, this authority refers to the authority to prohibit some things that would otherwise be biblically sanctioned (shev v’al ta’aseh). Rabbis may rule that a Torah mitzvah should not be performed, e.g. blowing the shofar on Shabbat, or blessing the lulav and etrog on Shabbat. These gezeirot are executed out of fear that some might otherwise carry the mentioned items between home and the synagogue, thus inadvertently violating a Sabbath melakha, a greater sin than neglecting the banned mitzvah.

Another rare and limited form of takkanah involved overriding Torah prohibitions. In some cases, the sages allowed the temporary violation a prohibition in order to maintain the Jewish system as a whole. This was part of the basis for Esther’s relationship with Ahasuerus. (Sanhedrin)

Another way that Judaism deals with the state of exception is by the doctrine of Pikuach Nefesh: “In Judaism, Pikuach Nefesh (Hebrew: פיקוח נפש) describes the principle in Jewish law that the preservation of human life overrides virtually any other religious consideration. When the life of a specific person is in danger, almost any mitzvah lo ta’aseh (command to not do an action) of the Torah becomes inapplicable.”