Foundations of a Philosophical Theory of Exceptions: A Historical Perspective

In the coordinate system of modern social sciences, a theory of exceptions which aims to avoid the mentioned methodological traps and to present a multi-layered philosophical view of exceptions from a practical perspective finds itself at the intersection between neurobiology, theories of action, applied ethics, sociology of disaster, philosophy of law, political theories and philosophy of science. A possible method, allowing to take into account many theories and arguments from these vastly different areas, could be the anthropological approach since the latter can simultaneously take into account the biological, ethical and social perspective. Our starting point could be the idea that we should not consider exceptions as a rare privilege of the few but as an integral part of the daily life and a key element of our everyday orientation.

But before undertaking the difficult task of constructing a comprehensive practical theory of exceptions, for instance, by analytically dividing exceptions into types according to the initial situation, the form of action, or its consequences, one has to understand what has been done for the analysis of exceptions as elements of human decisions and actions. Of course, in the history of Western philosophy significantly more attention has traditionally been paid to norms and rules while the concept of exception remained in the shadow, until it has found its widely recognised, but in fact very narrow philosophical niche in the 20^th century. In rare (and mostly short) dictionary articles on the notion of exception its history usually begins with Kierkegaard and Schmitt. Still, it is easy to notice that the concept of exception has been present in the history of philosophy since ancient times.

The following overview which focuses on sources and thinkers before Carl Schmitt is in no way exhaustive. Its main goal is to define some key tendencies in the past interpretations of the concept of exception as a philosophical term and to demonstrate the complexity of its - still mostly neglected - history. A deeper historical understanding of the concept of exception, can, in turn, help us to think this concept beyond the traditional political framework into which it is usually placed. Ancient origins:

Cicero and the Roman law

As far as we can judge from extant ancient sources, the concept of exception was first used in a legal context, namely in Cicero's defence of Lucius Cornelius Balbus, an influential official of Gaditan descent (i.e., a native of the Spanish town of Gades, modern Cadiz) who served under the command of Julius Caesar in Spain as a chief of military workers, which was only a starting point for his overall very successful political career. Defending Balbus' right to retain his Roman citizenship granted to him by Pompeius, Cicero battles against his opponents who seek to prove that the very procedure of obtaining Roman citizenship was il- legal in Balbus' case. The main debate revolves around a conflict between two different laws. The actions of Pompeius who granted Roman citizenship were supposedly in accord with the consular law of 72 BC but - at least at a first glance - directly contradicted the Lex Julia according to which citizens of a community allied with Rome had the right to obtain Roman citizenship only with the permission of the community.

The key part of Cicero's argument is based on his examination of the relation between rules and exceptions in Roman law. He acknowledges that some treaties between the Romans and the ethnic groups they conquered, for instance, in case of the Germans, the Insubres, the Helvetians and the Iapydes, specifically state that representatives of these tribes cannot obtain Roman citizenship. However, Cicero adds, since there is no such exception clause in the treaty with the Gaditans, we cannot appeal to it (Balb., 14). The logic is quite simple. From the fact that there are some treaties with a clause stating the impossibility of obtaining Roman citizenship, we cannot conclude that such a clause should be presumed in other similar treaties without this explicit clause. Moreover, since these few treaties specifically classify the prohibition as an exception, there has to be a general rule according to which members of ethnic groups can obtain Roman citizenship if there is a treaty with Rome. The argument looks good per se, but it is not enough to refute the counterarguments of Cicero's opponents who refer to the law of Julius which applies to Hades as an allied community. Understanding this, Cicero takes a further step, claiming that the Gellian and Cornelian law from 72 BC allows exceptions from Julius's law, although only those of legitimate kind which do not violate the sacred status of treaties. According to Cicero, to doubt Balbus' right to retain his Roman citizenship is not to doubt the merits of the accused (since these merits are quite obvious) but rather to dispute Pompeius' right to grant this citizenship. So why does Pompeius have this right in the case of Balbus? According to Cicero, because the text of the agreement with the Gaditans has a legitimate status but is not sacred and, thus, inviolable. The sacred status would require a ratification by a public decision, which was not the case for the treaty with the Gaditans (Balb., 14-15). Since only a sacred status of a treaty would not allow any exceptions, including the ones that are legally sanctioned, we can conclude that the agreement with Hades does not prevent legitimate exceptions.

It is in connection with his defence of Bal- bus that the famous phrase "exception proves the rule" (exceptio probat regulam) or, in its full form, "exception proves the rule in cases not excepted" (exceptio probat regulam in casibus non exceptis) is attributed to Cicero. Although Cicero himself does not use it,⁴ it accurately describes the first part of his argument regarding exceptions in treaties. In this concise form, the phrase has taken root in the European legal tradition⁵ and in the cultural tradition as a whole, gradually turning into an everyday principle applicable to conclusions, decisions and actions of any person. Even though the claim behind it, namely that the rule still stands despite the exception and, secondly, that the exception, does not undermine the rule but rather confirms it, may look flawed from a general point of view, it works for specific arguments, especially in legal cases (Holton, 2010).

Leibniz: Exceptions as a condition of justice

One of the most prominent philosophers of the Enlightenment who paid substantial attention to the concept of exception, both in the traditional legal context and in connection with ethics, social philosophy and philosophy of religion, was Leibniz. The term `exception' was first used in his article "The New Method of Learning and Teaching Jurisprudence" (Leibniz, 1667), published shortly after the defence of his habilitation thesis. Unlike his predecessors, Leibniz does not use the Latin word exceptio in the discussion about specific laws. Instead, he turns it into a key element of a universal general theoretical (methodological) argument, according to which any exception to the rule makes the latter useless since it can no longer be trusted ("Quod si regulae habent ex- ceptiones, frustraneae sunt, quia fidi illis non potest"). To the popular objection that there is no rule without exceptions ("Nullam regulam esse sine exceptione"), Leibniz resolutely replies: such an axiom contradicts itself, actually representing a liar paradox (Leibniz, 1667: 63).

However, in his later work "Reflections on the Common Concept of Justice" ("Mйditation sur la notion commune de la justice", presumably 1702), Leibniz's opinion regarding the concept of exception takes a drastic turn, presumably because he now considers its role not only from a legal but also - long before Kant, Hegel and Kierkegaard - from a theological, ethical and social perspective.Unfortunately, there are no special studies on this very interesting topic. Still, we can find some important observations in Stephan Meder's book on Leibniz (Meder, 2018: 77 ff.). Contrary to his argument in "Nova methodus", Leibniz states that we need exceptions from a strict rule (jus strictum), linking the exception with the idea of equality (equitas) and piety (pietas). In this context, he criticises Hobbes and some unnamed Latin lawyers who only pay attention to strict rules to the disadvantage of the ideas of equality and piety. According to Leibniz, only the latter can provide the necessary foundation for the principles of universal justice outlined by Aristotle. Strict adherence to the strict rule without regard for equity could only lead to lawlessness (in accordance with the proverb summum jus summa est injuria, "the more law, the more injustice"Here, Leibniz implicitly references Cicero, since the proverb is mentioned in his work "De officiis" (I.10.33).), so in justified cases we have to make an exception from it, in order to mitigate it (Leibniz, 1989: 571).

In German idealism which concentrated on norms and moral principles, the concept of exception mostly played a marginal role. Still, this does not mean that there were no instances of using exception as a notion. The question of whether exceptions are necessary becomes part of Immanuel Kant's ethical and anthropological arguments in his late works of the 1780s and the 1790s, for instance in connection to the problem of deviation from general principles and laws and to the topic of pragmatic limitations of our use of reason. In the "Groundwork of the Metaphysic of Morals" (1785) and in the "Metaphysics of Morals" (1797), exception mostly means a violation of laws, moral rules or customs. In the latter work, Kant provides a key example for his analysis of the main differences between murder and execution, namely the example of a criminal (which was later inverted by Nietzsche in "Thus Spoke Zarathustra"):

Now the criminal can commit his misdeed either on a maxim he has taken as an objective rule (as holding universally) or only as an exception to the rule (exempting himself from it occasionally). In the latter case he only deviates from the law (though intentionally) [...]. In the first case, however, he rejects the authority of the law itself, which validity he still cannot deny before his own reason, and makes it his rule to act contrary to the law. His maxim is therefore opposed to the law not by way of default only (negative) but by rejecting it (contrarie) [...].

The reason for horror at the thought of the formal execution of a monarch by his people is therefore this that while his murder is regarded as only an exception to the rule that the people makes its maxim, his execution must be regarded as a complete overturning of the principles of the relation between a sovereign and his people [...], so that violence is elevated above the most sacred rights brazenly and in accordance with principle. Like a chasm that irretrievably swallows everything, the execution of a monarch seems to be a crime from which the people cannot be absolved, for it is as if the state commits suicide (Kant, 1991: 132; AA VI, 320Along with the English translation, I reference the German Academy Edition of Kant's works (Akademie-Ausgabe, AA).).

For Kant (and later for Hegel), the concept of exception is still closely related to legal issues, as was the case for Leibniz. Of course, Kant's main goal in this case is not to discuss specific issues of public law but rather to answer the central question in the discussion of the events and consequences of the French Revolution: can we consider the execution of a monarch as an ordinary murder? Continuing his line of criticism against those who directly participated in the bloody events of the French Revolution, Kant points out that a violent severance of relations between the sovereign and the people is unacceptable both from the ethical and legal point of view. His contrasting description of an ordinary crime as an exception from the rule which the perpetrator still "cannot deny before his own reason" is, in turn, connected to his argument on the consequences of the crime from an internal point of view, culminating in the famous metaphor of the inner court of conscience.

To a somewhat different line of reasoning related to exceptions belongs the question on the limitations of a pragmatic application of reason. Kant initially introduces it in the "Groundwork" and in the "Critique of Practical Reason" (1788) where the rules of exceptions (exceptivae), along with the practical rules of commission (praeceptivae) and omission (pro- hibitivae), become part of the `quality' category of freedom regarding the concepts of good and evil (Kant, 2015: 56; AA V, 66). Realizing that people are inclined to consider themselves as an exception to any rule and, at the same time, to assume that others should not and will not do so (Kant, 1998: 34; AA IV, 424), Kant has repeatedly pointed out the role of the categorical imperative in opposing this antimoral tendency which deprives ethical maxims of all their meaning. However, realising that the need for exceptions is inherent in human nature, Kant takes a more lenient approach, differentiating between two kinds of principles - universality (universalitas) that does not allow exceptions and generality (generalitas) that allows them in some, presumably inconsiderable, cases when "the practical rational principle is to meet the maxim half way" (Kant, 1998: 34)⁹ while the respect for the categorical imperative is still maintained. In his "Anthropology from a Pragmatic Point of View" (1798), Kant takes a closer look at some specific manifestations of exceptions in human actions. On one occasion, he discusses the dangers of procrastination as a mechanism that impedes the moral self-improvement of a person and constantly produces new exceptions, and on another, he proves that from a pragmatic perspective, habits are generally harmful to us, with the exception of certain mechanical elements of the daily routine which he deems necessary to maintain one's health (Kant, 2014: 40, 79; AA VII, 149, 186).

Like Kant, Hegel mentions exceptions primarily in the discussion on law and morality, for instance in the "Elements of the Philosophy of Right" (1820). While discussing the question of how we follow laws and traditions (in § 150), he revisits the Kantian problem of manifestation of human egoism in the individual tendency to see oneself as an exception to the general rule. In this light, Hegel examines the relationship between the general idea of virtue and manifestations of virtue, noting that virtue not only can but also should serve as a subject of the human disposition to distinguish oneself from others in an intelligent way, thus showing one's individual character. When separated from concrete examples, the discussion concerning virtue in general would look too abstract, and therefore unconvincing. In other words, virtue according to Hegel (and contrary to Kant) is morality in its application to the special, i.e. exceptional (Hegel, 1911: 136-137). For instance, pure respect for virtue as a law which does not take into account our individual interests cannot yield any reliable practical results in specific life circumstances.More on the differences between Kant and Hegel on the topic of virtue, see in Allen Wood's study on Hegel's ethics (Wood, 1990: 214-215). Simplifying the views of Kant and Hegel on the concepts of virtue and the good, we can say that from Hegel's standpoint exceptions become a much more significant factor, as a normal practical necessity guided by our reason rather than a moral hindrance which we could reluctantly accept in some rare cases.