Exception, Judgement, Revelation: An Essay on the Arbitrary

 

EXCEPTION, JUDGEMENT, REVELATION: AN ESSAY ON THE ARBITRARY

1

No one ever crosses the same river twice, but there is also nothing new under the Sun. The latter proverb captures the world of rules, where we generalize and provide templates within which we can standardize activities, whilst the former proverb captures the world of facts, where every case appears in a different guise. Rules are based on past knowledge, facts are in an ever–unfolding present. We attempt to anticipate with rules, but the future confuses us with facts. Rules comfort us, facts mock us.

In the world of rules, there is regularity; there are laws, norms, parameters, and guidelines. On the factual ‘event horizon,’ there is irregularity, glorious chaos. On the event horizon, each case is unique, something not easy to discern but nonetheless indisputable (if you don’t believe me ask any judge who hears a case!).

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Yet, despite the seeming superficiality of regularity which we impose ex post facto on the event horizon, it remains the case that in the kingdom of rules we are forced to make arbitrary judgements. Regularity arises from the irregular. In particular, we need to decide – ‘judge’ – where the limits of rules reside. For example, if we make a rule forbidding ‘violence,’ do we mean violence linked to a fatality, or violence that leaves ‘observable’ marks on its victim, or is it threatening behaviour, or still yet psychological abuse, violence felt on the inside? Where do we draw the line? Furthermore, if we forbid violence (however we define its limits), we must make an arbitrary judgement about who is authorized to punish, or pass judgement on, the perpetrator of violence. By this process, we legalize and legitimize violence, a paradox that need not concern us, but which still raises questions about what rule governs who is empowered to use authorized violence. Is it the sovereign who is authorized, or a judge, or can private citizens make judgements as to the use of violence? It is likely to be any or some of the three depending on the situation, but there still are questions relating to the circumstances under which the subject of authorized violence acts in a legal sense. The what, the who, and the where, are all indeterminate, but provide the basis for our systemization.

So, our rule is permeated by the arbitrary. On the other hand, the arbitrariness of facts present themselves to us. The facts of what happened, who did what, the where and why, remain accessible, at least in theory. Facts exist in a lawless realm, because we have not imposed our rules on the event horizon. There is no arbitrary judgement involved, or no subjective discrimination; facts (which in principle can be determined) are facts, events are events. The paradox of making standardized judgements is that of imposing arbitrariness, while the arbitrary nature of facts involves no act of judgement on our part.

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The tragedy is that in our striving to regularize, we can’t avoid the extraordinary, the exceptional. Exceptions are the currency of rules, when we make arbitrary judgements that define what is regular. By contrast, a factual and irregular world knows no rules. Facts may tell us who was fatally shot and the circumstances, whereas rules tell us under what circumstances such shootings constitute crimes, and under what circumstances such shootings may be legally permissible. It is the nature of rules that new events will emerge which will confound the arbitrary rules laid down but at the same time which will confirm them, i.e. which will lead us to a deeper understanding of the rule. At the same time the incompleteness of the rule will be demonstrated by the exception. Above all, exceptions show what the event horizon consists of, something concealed when two events appear the same.

In sum, rules require exceptions, norms require abnormalities. This is an uncomfortable reality in a sophisticated society which attempts to rationalize everything, but is perhaps less painful, or even unnoticed, in the primal stages of a polity. Rule of law republics grow out of dictatorships and monarchies, but periodically the rule of law society will have to make arbitrary judgements that will throw its legal and political machine into chaos. The ghosts of the arbitrarily-acting king, the tyrant who was overthrown, then come back to haunt the republic which tries to implement its own rules through constituent assemblies, new constitutional orders, new modes, and the like, but which leaves itself all too vulnerable to J’accuse.

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One intellectual provided valuable speculations on the subject of the exception. During the ascendancy of mechanization, with all its notions of calculability and predictability, the Danish philosopher and theologian Søren Kierkegaard attempted to make light of the exception in a series of letters collected under the title, ironically enough, of Repetition. He discusses the exception from two different perspectives; first, the exception is a tool that assists a free enquiry into the nature of the universal, and secondly the exception is instantiated in the story of Job, the Prophet. Job, Kierkegaard tells us, suffers. He suffers, not merely from the obvious ailment, but more so from the humiliation of his disease. No one understands the test in the terms Job understands it, and his physical condition suggests to those lacking faith that God has abandoned him. Nevertheless, Job persists and this makes him an exception.[1]

Kierkegaard pursues the question of the exception with more aggressiveness in another passage. Here, he contrasts and compares the universal and the exception. The exception asserts itself, its legitimacy, its right to exist, against the universal. Exceptions are prodigal sons; the universal is nonetheless captivated by them. A strange, exotic creature, the exception perplexes the universal but also imbues it with vitality. As opposed to the universal having to integrate the exception into its system, or otherwise cast it aside, the exception makes its own reality and the universal is brought towards the defiant exception. The universal almost has to ‘forgive’ the exception and welcome it into its structured existence.

Kierkegaard here is not only using the exception as an analytical tool that “explains the universal … present[ing] everything much more clearly than the universal would itself”[2] with examination of a “legitimate exception” necessary to “study the universal”:[3] there is also value in pondering the exception for epistemological reasons. Exceptions push the boundaries of knowledge and we must somehow come to terms with them, not on our territory, but on the territory of the exception. A “rupture” is introduced by the exception.[4] Exceptions painfully tell us that we do not control facts. Events confound the norms we lay down but we must regularize extraordinary facts somehow. Exceptions stand as monuments to our inability to control the world, especially painful in a post–Francis Bacon world, where we feel we must conquer nature and render it subjugate, which we can only achieve by converting nature into a system. Yet, no matter how uncomfortable we feel about the extraordinary disturbing our ordered existence, we have to make the journey the exception invites us to make.

With both the story of Job, and the more philosophical inquiry Kierkegaard engages in, there is a strong theological theme. This is fitting. What makes the stories of the Prophets so memorable is their unique narratives, unparalleled elsewhere in literature or historical accounts. We feel the lives of the Prophets, as well as their miracles. We are moved deeply, and their life-stories evolve with our life-cycle. For whatever the challenge we face in the world, the lives of the Prophets, unravelled through Sacred Revelation, is rendered fresh and renewed by our experiences.

Revelation is thus the rupture introduced into the world by the actions and words of the Prophets. Revelation is the great exception in history.

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In the political world, Donoso Cortés, the famous 19th century Spanish diplomat, discussed the exception in terms of both the Divine and political miracle during a speech he gave in early 1849. Revolutions rocked Europe at the time, convulsions which Cortés (quite naturally for a political thinker) likened to bodily diseases. Dictatorship, the ultimate manifestation of the arbitrary and the exceptional in politics, was then the antidote to this malady. Justifying this radical turn, Donoso insisted that it was necessary to accept exceptions in the law which fully endowed one man with absolute and arbitrary power.[5] The Spaniard didn’t stop at calling for a tyranny devoid of rules. He invoked a Divine metaphor. “God governs the Universe constitutionally …by certain precise and indispensable laws,” stated Donoso. Yet, “if God is the Legislator of the physical world … does God always govern according to the same laws which He has imposed upon Himself?” Cortés answered in the negative and said that God “sometimes manifests His sovereignty directly, clearly and explicitly by breaking those laws which He has imposed upon Himself and deflecting the natural course of events”, i.e. through miraculous intervention.[6]

6

No author in modern history has so consciously made use of the exception as Carl Schmitt. Both Kierkegaard and Cortés provided the Catholic-educated Schmitt with a suitable angle for tackling the fraught question of sovereignty in the manically liberal Weimar republic, and the French renaissance thinker Jean Bodin also bolstered Schmitt’s thesis.[7] For Schmitt, the entire question of sovereignty revolved around whoever decided on an exception, i.e. which figure of authority or power went outside the set constitutional order in rendering a judgement on an event which crossed the parameters of normal legal boundaries. Schmitt went so far as to equate exceptions with decisions; one way in which they are equivalent is that just as exceptions are independent, so are decisions.

What I have referred to up to this point as ‘factual,’ or ‘residing in the event horizon,’ was for Schmitt denoted as the ‘concrete.’ Rules are abstract, exceptions are concrete. He thus was able to portray liberalism as having little to say about life in general, and sovereignty in particular, because it turned its face away from a ‘philosophy of concrete life.’ Exceptions, brought about by emergencies, are where there is no pre-existing guidance within a constitutional liberal scheme. A liberal–constitutional framework is at a loss to incorporate such events into its ambit.[8] The factual nature of an exception is such that the “precise details … cannot be anticipated, nor can one spell out what may take place in such a case.”[9] However, Schmitt goes on to say that the legal order is nothing but a set of arbitrary judgements; “the legal order rests on a decision and not a norm.”[10] The abstract is a product of the concrete. Traces of the decision linger even in normal times because the “autonomous moment of the decision recedes to a minimum” during the normal situation, but “the norm is destroyed in the exception.”[11] Just as God is always present but hidden, and the world manifests itself to our senses but is yet just a creation, God is all that truly exists and His emergence destroys our illusion of creation. Furthermore, the “exception confirms not only the rule but also its [i.e. the rule’s] existence, which derives only from the exception.”[12] Like Cortés, Schmitt claimed that the sovereign, like God, could suspend the entire order, and in fact the extraordinary was necessary for proving the absolute and unlimited nature of sovereign rule in such a circumstance.[13]

7

At the point at which the concrete, the factual, the event horizon, makes contact with the somewhat mythic and abstract structure we have flimsily constructed, we are then taught by absolute knowledge. Truth then comes to pass. We are taught in an authentic sense by the arbitrary and the exceptional, while rules are merely rote-learning and repetition. Rules are just dogma, whose scripts immediately become dog-eared, while knowledge – in its true meaning – is fresh parchment.

Since the concrete is firmly equated with knowledge, rules represent a knowledge gap. In instituting government, or drafting constitutions, or indeed founding any order, humans involved in these procedures invariably suffer from epistemological deficits. They cannot know everything but only the general, the universal. In a way, we can say that they know nothing, until they bash their heads against the concrete. Hence, knowledge is not so much a case of ‘knowing,’ as in having memory of something acquired in the past. Knowledge, paradoxically, is all about ‘not-knowing.’ Our body of ‘knowledge’ is built on an edifice of pure discovery, a journey into the unknown which we are not even aware is a journey until we have reflected.

We become most aware of ‘not-knowing’ when confronted with a challenge to the acorns of learning we had previously gathered. And yet, this is not a matter of simply adding to what was already known. The objects of ‘not-knowing,’ most vividly instantiated in the exception because it ‘rocks our world,’ return us to a primordial state of truly knowing, of remembering. We only truly ‘not-know’ when faced with an exception that we cannot integrate into our cosmology, our world-view, and then we proceed to knowledge. Subsequently, we scurry about trying to impose order, but we are in reality the prodigal sons who have gone out in the world, made a mess of everything, been schooled by what we did not know or could never have even anticipated, although we thereafter slump into the habit of retreating into a mythic world of half-eaten memories and mouldy information, or reflection and fuzzy memory.

8

Before the exception occurs, we have endeavoured to cobble together our views into some body of thought, a system perhaps, with general patterns and instances of these patterns. By this, we intend to seal off any surprises and institute an order in our own existence. But what does this order presuppose? Isn’t it really the case that we are aware that there is a fluid, rapidly changing and unknown dynamic which we are the same time unaware of, by which I mean that our awareness is piqued by an awareness of this ‘unaware-of.’ This ‘unaware-of’ will be called ‘concealment.’

Now concealment does not imply that something is completely hidden from view. We hear rustles of the concealed, we glimpse shadows. We are aware of the concealed and have a faint idea that it is something critical but we lapse back into an unawareness. This unawareness is not a complete ‘blissful ignorance’; we cannot delight in our ignorance and consummate it fully because we still sense the concealed lingering around.

When we become fully aware, when our Kierkegaardian ‘universals’ can no longer rest content, we look down the barrel of a new revealing. A complete awareness is only possible when the concealed has been revealed. That is the remarkable thing about Prophetic Revelation; to the believer it keeps on giving continuous revelation even if the same sentence or thought is mediated upon. Revelation is the twin brother of concealment. What is revealed must have been present in some sense. Looking at the etymology of this word we can see this; velare is simply a ‘veiling’ in Latin. Revelation and concealment is the dialogue of the curtain.

Let we remind ourselves once more however that the concealment is not something behind a pure ex nihilo revealing. The reality, the intellectual and emotional impact of the revelation, is only possible because the concealment had quietly announced itself to us in such a low voice that we could detect the possibility of a revealing, but could not have it announce itself to us loudly prior to an instance of the revealing. Thus the concealed, in its almost silent voice, introduces the revealing. That which most captures our hearts and imaginations in the heat of the exception is also that which has an almost sinewy quality with respect to how we can grasp it intellectually and emotionally in the coolness of the normal. This is the nature of the revealing, and there is truly a manifestation when the curtain which guards the concealed opens momentarily. The revealing is given power by its secretive nature – secrecy is the attribute of power. The greatest secret is that Day when the decisive rupture leaves nothing untouched.

So, it is thus the case that the abstract has the concrete as the reference point, Revelation depends on concealment, rules are merely exceptions, and openness is only possible if there is secretiveness. When we witness such wonderful things, a terrible beauty is born out of the extraordinary which we inauthentically convert through systemization into a rational order.

Endnotes

[1] Kierkegaard, S., Piety, M. G., Mooney, E. F., & Kierkegaard, S. (2009). Repetition ; and, Philosophical crumbs. Oxford: Oxford University Press; 65–67.

[2] Ibid; 78.

[3] Ibid; 78.

[4] Ibid; 77–79.

[5] Menczer, B. (1962). Catholic political thought, 1789-1848. Notre Dame, IN: University of Notre Dame Press; 163–164.

[6] Menczer p. 164

[7] Schmitt, C. (2005). Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab, Trans.). Chicago: University of Chicago Press; 8.

[8] Ibid.; 5–6.

[9] Ibid.; 6.

[10] Ibid.; 10.

]11] Ibid.; 12.

[12] Ibid.; 15.

[13] Ibid.; 13.

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