State Of Exception

The only political battle that matters is who controls the exception.

In response to my article Bad People Have Human Rights Or No One Does someone replied that they didn’t think people who advocate for genocide have human rights. To answer this question: Yes, those who support the state of Israel have human rights.

While this commenter might have been thinking they were stopping “nazis” when they made this exception, there is a large mainstream progressive movement that believes the state of Israel is engaged in genocide in Gaza. This movement has called the CEO of the ADL a “nazi.” If we were to create a “people who support genocide don’t have human rights” rule, it would be applied here.

Both major political parties have supported the state of Israel. By this rule, we could say that anyone who has voted Democrat or Republican does not have human rights, since their representatives have “supported genocide.” What might sound like a “reasonable” rule could be used to deny all Americans their rights, rendering the concept of rights meaningless.

What Is A State of Exception?

State of exception is a political concept whereby a government creates an “exception” to human rights and its own rules due to a crisis or emergency. Once a government is given an “exception” where it can violate its citizens’ freedoms in an “emergency,” all it has to do is claim that every time it wants to violate those freedoms there is an “emergency.” State of exception describes a state where the daily operations of the government are run through this “exception.”

A state of exception is what Hitler used to take power. After the “emergency” of the Reichstag Fire, the German government suspended regular freedoms and ruled from this “exception” until the end of World War II. Modern examples of a state of exception include the Patriot Act which created an exception to regular rules around spying on Americans due to the “emergency” of terrorism and the COVID-19 lockdowns which created an exception to regular everyday freedoms due to the “emergency” of a pandemic.

While the original commentator might have thought they were fighting “nazis,” they were actually supporting the mechanism by which Hitler rose to power and promoting a rule that could be used in modern contexts to take away the rights of Jewish people.

The Exception As A Legal Rule

Suppose we did pass a law that "no one can support genocide.” Who defines what supporting genocide is? If someone doesn’t support transgender issues, are they engaged in “transgender genocide?” If someone supports open immigration, are they engaged in “white genocide?” If someone wants to cure deafness, are they engaged in “cultural genocide?”

You might find these ideas absurd, but there are political movements that believe them. Once an exception to universal rights is created, the political battle becomes over who controls the exception. Anyone who does can simply declare their political opponents “genocide supporters” and have them arrested.

Once an exception is created, seizing power doesn’t require convincing the majority of the population. A determined fringe can seize the mechanisms of the state that determine who is engaged in a rights-denying exception. Once they do, the majority will fall into line. Most don’t care enough about political issues to risk arrest for it. Some might, but they’ll be deemed “genocide supporters” and no one wants to stand by that.

Who Enforces The Exception

How would you enforce a “no one can support genocide” rule? You’d have to have courts that determine when someone is “supporting genocide.” (You’re not going to give unelected secret police the ability to arrest people without a fair trial, are you?)

Think about what sort of person would be attracted to a job where they get to deny others their rights. A human rights activist might take the job out of civic duty, but the kind of person who would delight in denying others their rights is an authoritarian personality — in other words, a fascist.

To quote Dune author Frank Herbert, “Power attracts pathological personalities… it is magnetic to the corruptible.” The moment a rights-denying court of exceptions is created, it will be overrun by evil people.

The Exception As A Moral Rule

Suppose instead of passing a law that “no one can support genocide,” we just make it a moral principle. Everyone is free to believe what they want, but our movement or organization won’t work with people who “support genocide.”

While this might sound better, it just decentralized the problem. Each person or organization must make their own ruling on whether or not opposing gender surgeries on minors is “trans genocide” or supporting the state of Israel is participating in a “genocide.” Before organizations could say that everyone has human rights regardless of their background or beliefs. Now, they must take a stance on every political issue.

In a diverse movement, this will inevitably descend into disagreement and infighting. Before, everyone could work together to secure human rights for all. Now, your opinion on unrelated political issues could result in your allies working against you. Unless a strong leader can enforce total conformity, the movement will fracture into factions.

Who Benefits From The Exception

A decentralized state of exception is less safe for the accused. Instead of a centralized court with due process where defendants have the right to legal counsel, those accused must now contend with a court of public opinion, where “rulings” are made by gossip and those attacked cannot face their accusers.

A decentralized state of exception is less safe for bystanders. With a law, rulings are made by judges. Now, every individual must make their own “ruling” on whether or not they can “associate” with the accused, since no court will decide for them. Instead of each side presenting evidence in a court of law, they only have what they’d heard second-hand to make a ruling. If activists disagree on what “ruling” to make, more infighting ensues.

A decentralized state of exception is great for controlled opposition and those who want to deny others their rights. Just as rights-denying courts attract fascists, the ability to deny other activists their rights through rumors will attract petty personalities, gossips, and social fascists. All someone who wants to destroy a movement to do is make a rumor.

Exceptions Make Infighting Inevitable

If a human rights movement descends into infighting because they embraced exceptions to human rights, they deserve it because they stopped supporting human rights. These problems are only possible in movements dedicated to suppressing the rights of those they deem “bad.” Once that occurs, we’re just debating whose rights should be suppressed.

Unity can only be maintained in this situation through a strong centralized leader who enforces total conformity on every issue or possible interpretation of the exception — in other words, a fascist dictator. It isn’t just that a state of exception has been used by fascists to rise to power. A state of exception creates power that both attracts and can only be wielded by dictators.

In a centralized legal state of exception, it is easier for a leader to hold power. In a decentralized movement, this is less likely. It is unlikely that in a network of non-profits and unpaid activists, one person can force total conformity. Once a state of exception has been created, conflict is inevitable. Whatever happens, the movement loses the mandate of heaven.

The Exception Is A Tool For Abuse

The exception creates incentives for people with no ideology or interest in the exception to use the exception against their enemies. Since the exception creates a mechanism to deny others their rights, anyone who hates another will claim they belong to the exception. The exception is designed to be abused.

This occurred frequently in the Soviet Union when neighbors and rivals reported one another for fictional violations. These anonymous reports were not about protecting communism but weaponizing the state against personal enemies. In modern society “cancel culture” can function the same way.

The result is that the exception is unequally enforced. Since ethical issues are decided through power struggles, blatant violations the exception go unpunished while others are attacked on mere rumors. Whether or not a person’s rights are denied depends on personal politics rather than moral principles.

How To Oppose The Exception

Suppose you support human rights, but you also don’t want others to “support genocide.” What should you do? Simple: If you want others to support human rights and oppose genocide, you should support human rights, oppose genocide, and encourage others to do the same — through persuasion, rather than pressure.

In a state of exception, accusations are a threat. If someone accuses another of “supporting genocide” in a society where that is illegal, they are not merely inviting them to reconsider their beliefs. They are threatening their rights. That person will not react with self-reflection, but like they have been threatened — which they have.

In any relationship where you want genuine change, you must first create safety for the other person. Self-reflection is only possible when the other person is not in a fight-or-flight state. Ironically, if you want people to reconsider their beliefs, you must first make it safe to have those beliefs.

If you tell someone that you will support their rights no matter what they believe — and mean it, even if they never change their mind — then that creates the safety for them to have an open honest discussion. If there are consequences for disagreement, then the discussion is closer to a cop interrogating someone for a crime. No one talks to the cops.

Some might object that they don’t feel safe if others hold bad beliefs. Yet, that is what universal human rights are intended to prevent. If you secure human rights, it doesn’t matter what anyone else believes. You’ve still got your rights. If you want human rights, you must first respect others’ rights.

What To Do Under An Exception

What should you do if living under a state of exception, where those in power can deny your rights? In this scenario, the only political battle that matters is to seize the exception. Whoever defines the exception has a hegemony over everyone else.

In a state of exception, all anyone has to do to seize power is define the exception. If there is a law that no one can “support genocide,” all one has to do to take power is define all their enemies as genocide supporters. You don’t even have to pass any new laws. You just have to redefine language such that the existing rules produce the desired results.

Even if you oppose genocide and are not interested in denying anyone else their rights, you must seize control of the exception, because other groups in society might use it against you. Even if you understand the good intentions behind the rule, you must redefine the exception to oppose those who would take your rights.

The exception creates a prisoner’s dilemma, where anyone who defects benefits. By creating an exception, the other side has already shown they will defect. If we all defect, human rights are dead. Yet once the exception is created this is inevitable. The exception creates power that in turn creates power struggle.

How To End The Power Struggle

There are two ways to end the power struggle:

First, end the exception. Support everyone’s rights and right to secure those rights, regardless of what they believe on other issues. If an exception exists, it is in everyone’s interest to seize the exception.

This will mean giving rights to people who fit the exception, without any caveats or attempts to change them. You can disagree. You can not like them. Yet you must still unequivocally support their rights and allow them to advocate for those rights.

Second, win the power struggle. Win so decisively that no one else can have a different interpretation of the exception. From there, you can just decide who does and does not have rights. A power ruling over all others is known as a hegemony.

Ironically, you cannot end the exception unless you have power. Even if you would prefer the first option, if the ruling power does not recognize your rights, power struggle is required to secure them. If there is no singular ruler, ending the exception requires everyone’s mutual agreement.

When people create an exception, they feel they are stopping something bad. Yet human rights function like a treaty. I agree to respect your rights if you respect mine. An exception breaks that treaty. Once rights can be denied, conflict is inevitable. Instead of stopping violations, an exception ensures they will occur.