Law and the Exception

This book proposes a paradigm shift in the way that ‘the state of exception’–as it is usually named in legal and political theory–is to be understood. Building on the assumption that the exception is a heuristic idea that is still a relevant category for a critical deconstruction of law, this book argues that it needs to be rethought outside the boundaries of its traditional understanding. To this end, the book offers two strategies. First, it develops the ideas of ‘exceptionality’ and ‘exceptionalisation’ in order to grasp how measures, norms and mechanisms that clearly have an exceptional character are no longer confined within the boundaries of classic institutions such as the state of exception, martial law, the state of emergency and so on. As demonstrated recently during the COVID-19 pandemic, legal systems may dissimulate the exceptional as the normal, avoiding the use of formal states of exception and adopting measures that are of exceptional nature. This book maintains that it is necessary to think of ‘exceptionality’ outside of its usual legal footholds. Emergency laws are considered here as part of a more general sphere of exceptionality that must be understood as the product of a process of the accumulation of symbols, practices, notions and images that are only partially expressed through law, despite having long populated the legal imagination. Second, the book offers an analysis of the inner exceptional life of liberal constitutionalism: the subterranean authoritarian drives dissimulated by the rule of law.

This book will interest scholars and researchers in legal and political theory, as well as continental philosophy.

Gian-Giacomo Fusco is a lecturer in law at Kent Law School (University of Kent, Canterbury). He obtained his doctoral degree in law at the University of Kent. His research interests include jurisprudence, critical theory, history of ideas and urban studies. His more recent monograph, Form of Life: Agamben and the Destitution of Rules (2022), engaged with and developed further Agamben’s concept of destituent potential as a critique of the law.

Przemysław Tacik is Assistant Professor at the Institute of European Studies of the Jagiellonian University of Kraków, Poland, and Director of the Nomos: Centre for International Research on Law, Culture and Power. A philosopher, lawyer and sociologist by education, he holds PhDs in philosophy (2014) and international law (2016), as well as habilitation in law (2024). He has been a visiting scholar at numerous universities. In his academic work, he combines both philosophical and legal perspectives, attempting to approach them from an interdisciplinary angle. His current research is focused on critical legal theory and contemporary philosophy. He has authored five books as well as over 60 articles and two translations of a poetry volume (from French to Polish). His most recent monographs are A New Philosophy of Modernity and Sovereignty: Towards Radical Historicization (2021) and Deconstructing the Right to Self-Determination in International Law: Sovereignty, Exception, Biopolitics (2023).