Taking Exception: The Cases of Financial and Urban Governance1
| Date | 01 March 2012 |
| Published date | 01 March 2012 |
| Author | James W. Williams,Randy K. Lippert |
| DOI | 10.1177/0964663911418720 |
| Subject Matter | Articles |
Article
Social & Legal Studies
21(1) 51–72
Taking Exception: The
ª The Author(s) 2012
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DOI: 10.1177/0964663911418720
Urban Governance1
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Randy K. Lippert
University of Windsor, Canada
James W. Williams
York University, Canada
Abstract
The concept of the exception has garnered increasing notice from scholars, where it has
been used to denote the outer limits, and yet most absolute embodiment, of sovereign rule.
However, the concept and its relevance to law and governance in specific contexts remain
underdeveloped. Drawing on detailed studies of two domains – financial and urban
governance – where the importance of the exception is evident yet unrecognized, we
argue that this concept provides a valuable analytic for thinking through, not the
vicissitudes of sovereign rule, but rather the internal logics, possibilities, and limits of
governmental programmes and the place of law therein. We use these empirical forays
to develop the concept of the exception as a technicality of governance that bears critical
implications for the nature, shape, and effects of governmental programmes.
Keywords
exception, financial markets, governmentality, jurisdiction, law, urban governance
Introduction
The concept of ‘the exception’ developed and popularized through the writings of
Giorgio Agamben (1998, 2002) has garnered much attention in the past decade (see
among others, Bell, 2006; Brophy, 2009; Dean, 2007; Fitzpatrick, 2001; Norris, 2007;
Welch, 2007). This follows from, at least in part, its resonance with post-9/11
Corresponding author:
Randy Lippert, University of Windsor, 401 Sunset Avenue, Windsor, N9B 3P4, Canada
Email: lippert@uwindsor.ca
52
Social & Legal Studies 21(1)
developments and the broader war on terror that saw widespread suspension of rights and
civil liberties and intensification of the policing of immigrant flows and detention prac-
tices (e.g. Aradau and van Munster, 2009; Ericson, 2007: 26; Johns, 2005; Neal, 2006;
Welch, 2007). Within the secondary literature spawned by Agamben’s writings, the
exception and its accompanying conceptual tool-kit have proven useful in accounting for
the critical role of sovereign power, particularly the rule of law, in constituting states or
spaces beyond yet essential to the law–sovereign nexus. Here the exception has been
positioned as a means of revitalizing the role of sovereign power and law allegedly
‘abandoned’ by Michel Foucault (Agamben, 1998: 5). The exception emerges here as
a kind of counter-point to this ‘expulsion thesis’ (see Hunt, 1992; Rose and Valverde,
1998) and a way to account for the existence of illiberal practices at the heart of liberal-
ism (see Bigo, 2008; Dean, 2007). Thus, it permits recognition of the critical role of the
sovereign in contemporary governance and security arrangements.
Yet, the sudden ubiquitous presence of the exception concept raises concerns. While
it meshes well with contexts possessing clear linkages to questions of sovereign power
and law, it is less evident how it applies to forms of governance less visibly tethered to
the sovereign state and associated forms of law and juridical authority. These are forms
of governing ‘beyond the state’ (Rose and Miller, 1992) that have emerged as key objects
of interest for socio-legal scholars using tools drawn from the Foucauldian-inspired
governmentality literature (see Hunt and Wickham, 1994; Lippert, 2009; Rose and
Valverde, 1998; Rose et al., 2006) but in which the specific place of law remains uncer-
tain. Following this literature, we are interested in the implications of ‘the exception’ and
its critique for governmentality studies and in particular the place of law in governance.
A key question is thus whether the concept has analytical purchase beyond its present
theoretical and substantive engagements and what it might contribute to the study of
governance ‘beyond the state’.
In this article we take the position that there is indeed much value to be mined from the
exception. We argue that the exception underscores law’s contradictory and uncertain role
in governance, including its introduction of discontinuities, boundaries, slippages, and con-
tradictions that alter, re-shape, and potentially subvert governmental programmes. This is a
contribution that follows less from the existence of the exception as a state of exclusion and
more from its position as a space where the regular rules do not apply or where governance
becomes frustrated. This is a sense of discontinuity in which the notion of boundaries is
critical as exceptional spaces emerge, move, and disappear, often through distinctions or
gaps between governing practices and technologies resulting not from decision points or
sovereign rule, but rather the emergence and implementation of a host of legal technical-
ities, forms of expertise, and small details. Thus, we seek to develop the exception as a
limit or boundary instead of an extreme expression of control.
Realizing this potential ultimately requires that we ‘take exception’ in two senses of
the phrase. First, we take issue with the exception’s usage in the secondary literature, that
is, its deployment as a ‘state of exception’ to refer to a new and far-reaching, even global,
political-legal condition and as a kind of decision pertinent only to marginalized lives.
Arguing that this treatment obscures the concept’s analytical possibilities, we instead
explore a more subtle interpretation of the concept. Second, we take the exception to two
specific sites of substantive engagement beyond the state: regulation of financial markets
Lippert and Williams
53
and urban governance. Rather than a case study approach, we draw on these two exam-
ples to better illustrate the wider applicability of our argument. These are domains that
exemplify changes in modes of governance in recent decades, especially in relation to
‘de-regulation’ and the alleged shift in responsibility for governance from direct state
control to private and quasi-public authorities. Often characterized as ‘neo-liberal’
(Blomley, 2004; McCann and Ward, 2010) or ‘advanced liberal’, a somewhat broader
term used in the governmentality literature (Rose et al., 2006), these practices are
claimed to yield greater efficiencies, to promote an entrepreneurial zeal in financial mar-
kets, and to transform cities into ‘urban growth machines’ (see Jonas and Wilson, 1999)
all the while dramatically accelerating economic growth. In this article we argue these
two vital domains are constituted via spaces of exception rooted in boundaries and
jurisdictional divides that shape and in some cases frustrate governmental programmes.
While preserving certain core insights, our approach signals a significant evolution of
the concept of the exception. We argue this revised and revitalized understanding of the
exception, of spaces of exception, and thus of law’s unique role in governmental pro-
grammes may provide more explicit recognition of the realities, slippages, and details
of governmental programmes often neglected in governmentality studies (see Lippert
and Stenson, 2010; O’Malley et al., 1997). Ultimately we seek to stake a slightly dissim-
ilar conceptual ground for the exception to see how it might provide a heretofore
neglected conceptual language for examining the details of governmental programmes
and spaces of governance, especially those that have emerged beyond the state under the
auspices of neo-liberalism.
The Exception
Overview
With the English translation of Agamben’s Homo Sacer (1998), followed by his State of
Exception (2002), the sovereign exception has been increasingly invoked in socio-legal
studies. In Homo Sacer, Agamben (1998: 18) draws on the notion of the sovereign
exception found in Carl Schmitt’s essays on sovereignty. For Schmitt, the exception is
tied to a state of emergency whereby the state must resort to a suspension of law and
human rights. Here the sovereign is he who decides the exception and in so doing con-
stitutes the rule. In Agamben’s writings, the sovereign exception is a counter-intuitive
and peculiar non-linear relation: ‘The exception does not subtract itself from the rule;
rather, the rule, suspending itself, gives rise to the exception and, maintaining itself in
relation to the exception, first constitutes itself as a rule’ (Agamben, 1998: 18). Thus, the
exception is constitutive of law, and law is a ‘dead letter’ without it. The assertion here is
that the positive content of law follows from its limits or points where it does not apply.
There is a constitutive outside where law and sovereign power are defined by virtue of
their negations or inclusive exclusions (Agamben, 1998: 15).
Another of Agamben’s key arguments is that the ‘state of exception’ is rooted in the
contradiction between law and life, that is, between law’s nomos and its application
(Agamben, 1998: 37). In this way, the exception represents a means of overcoming this
inherent tension as it resembles a situation where the application of law is held in
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Social & Legal Studies 21(1)
abeyance while its nomos or force endures, hence the irony and ambiguity of the excep-
tion as a space where the rule of law both exists and is suspended. Here the exception
emerges as a lacuna in law (Agamben, 2002: 31).
The perpetuation of this slippage as a mythical reconciliation allows for the ability to
conceal the contradictory features of a law that is invariably distant from life and limited
in its application. We return...
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