The state of exception is law’s normal mode, not an aberration

Evidence

My argument is that integral to the modern variety of change is arbitrariness and self-arrogated freedom from restraint that can be defined only in terms of sovereign will. Which brings us back to the so-called state of exception, which is no exception at all. It is rather an integral part of a dominantly political and partially legal will that, because of its uncertain and necessarily inconsistent substantive constitution (for arbitrariness is, like power, by definition inconsistent), it is impractical to apply in a perpetually normative and consistently predictable manner. Normative law requires a degree of internal consistency and predictability that the so-called state of exception lacks. — Wael Hallaq, Restating Orientalism, 410

Categorization

• XREF: Connects to Agamben’s state of exception and Schmitt’s sovereign decision literature, plus the earlier Milgrom reading on extralegal legal systems.
• DEEPTHINKING: Rethinks the exception/rule distinction: arbitrariness is constitutive of modern law, not a crisis within it.