The practices of the state of exception are not limited to exceptional situations. Modern democratic states, under liberal ethics, are riddled with policies of exception that limit, in daily life, the exercise of rights guaranteed by a democracy. In the United States, the development of extraordinary power in the presidency — called the imperial presidency — has often been criticized as subverting the republican principle of separation of powers, making the legislative branch (Congress) a subordinate institution to the executive power and the judicial branch a legal tool for validating acts that subvert the rule of law. Some historians, such as Chalmers Johnson, believe that this historical development, through which claims of national security displace libertarian principles, is a natural result of an extraterritorial empire. In other words, it is a result of having to administer global hegemony day to day. Another interpretation suggests that the basis for this singular authoritarianism is the president’s power to unleash a nuclear conflict with destructive consequences never before seen. This power comes from his constitutional authority as commander in chief. It has also been argued that the real power of the presidency is based on the historical development of the institution in the mainstream of national politics, which has given the president the sole responsibility of protecting national social structures and the political community they make up. According to this view, democracy is viable as a legal form as long as the state, in the form of the real and symbolic figure of the president, maintains the institutional political prerogative of using his executive power outside the law when deemed necessary. This authoritarian view of the state as the total political incorporation of the community means that it cannot be subject to any restriction from outside. The individual freedom of the governed, according to the logic of exception, is not the natural condition of the citizen or human being (as stipulated by the ethics of liberal democracies), but rather comes from the immediate discretion of the state in exercising its sole political responsibility as sovereign and as protector of the common good. These rights, therefore, can be denied when circumstances merit it.

There is also a routine nature to the practices of exception in the democracy. While it is stipulated that all citizens and state, private and autonomous institutions must comply with all the laws and rules established by the community, in reality this is not the case. It is true that nobody is formally exempt from the law, even public institutions or politicians or powerful officials. It is common, however, for public regulatory agencies to grant exceptions to their own regulations when they believe it is convenient. This means that access to state administrators (politicians) by private interests allows them to be exempted from complying with some law, rule or regulation. In other words, nobody is above the law, except when they get an official to give them an exception. An example that illustrates the commonness of the practice of exception is the executive’s power to grant pardons to persons sentenced to prison for having committed a crime. A notorious case was the pardon granted by President Gerald Ford to Richard Nixon, an a priori pardon, meaning it prevented him from being accused of any crime in the future.

Routine practices of exception, an insurmountable contradiction that weakens the functioning of the rule of law in a democracy, are used regularly in Puerto Rico and the United States, and they have become part of the Puerto Rican political culture. Citizens, on one hand, value individual rights and equality under the law, but at the same time they trust authority to grant them exceptions to the rules when it is convenient. These practices of exception, a common part of daily public management, represent an authoritarian burden that contradicts democratic ethics.

 

 

Author: Roberto Gándara Sánchez
Published: September 11, 2014.

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