Agamben, Giorgio. 2005. “The State of Exception as a Paradigm of Government.” In State of Exception, translated by Kevin Attell, 1st ed., 1–31. Chicago: The University of Chicago Press.
This chapter is dense. Very.
The admittedly (very) long extras set in monotype are extracts from elsewhere in the text itself or culled from relevant resources elsewhere. They are merely explanatory and added as additional help since the text assumes your familiarity with extremely weighty concepts. The slightly advanced reader can skip these sections.
1.1. A theory of the state of exception needs to be articulated.
The state of exception “defines a special condition in which the juridical order is actually suspended due to an emergency or a serious crisis threatening the state. In such a situation, the sovereign, i.e. the executive power, prevails over the others and the basic laws and norms can be violated by the state while facing the crisis.” [David Giordanengo “The State of Exception”]
1.4. The state of exception is the “suspension of the juridical order itself”.
It was Carl Schmitt who established the contiguity between the state of exception and sovereignty by defining the sovereign as “he who decides on the state of exception” [he starts Political Theology (1922) with this classic definition]. Schmitt’s work was the first rigorous attempt to construct a theory of the state of exception. The point being that that theory is somehow incomplete/deficient/defective.
What gives the sovereign that special capacity to see that there is an exception, a state of emergency, and consequently decide on it? Does the sovereign become sovereign because he can decide on the exception, or is it rather the case that he can decide on it because he is already sovereign? Depending on the answer, the hyperbolic truth enunciated by Schmitt acquires a different meaning.
In the first case, any person with special powers (or even simply a special sensibility) could be recognized as sovereign. This would be an honorary status conferred on him. The implication here would be that there actually is, objectively speaking, an exception and the sovereign is he who can recognize and handle it.
In the second case, the sovereign is he who has the power (in the strictly political, institutional sense — a power always grounded in violence) to decide on the exception. ... [T]he exception itself can be a mere fabrication of the sovereign, which acquires dubious legitimacy on the basis neither of ethics nor of a violence travestied as force of law, but of mere and raw violence. In this case, it is not the exception, the state of emergency, which calls forth the sovereign decision, but the other way around, the sovereign decision creates the exception, or state of emergency.
In Schmitt, the concept of the exception makes sense because it is contained in the concept of the sovereign; it is the sovereign. ... [I]t is not the case that the sovereign realizes that there is an objective state of need and thereupon he acts decisively. Instead, the sovereign chooses which state is to be raised to the level of the exception, or simply fabricates it. [See Section 1.10.]
It is easy to see that, despite its brilliance and internal logical coherence, Schmitt’s doctrine is also deeply flawed. It says that the decision on the exception is a privilege of the sovereign, that the sovereign is a sovereign precisely in virtue of his capacity to decide; yet, it does not say how he receives this capacity nor why is this capacity not generalized to become a privilege of each and every individual.[Bruno Gulli “The Sovereign Exception”]
Of course articulating such a theory is a difficult — some might say, an illegitmate — task. For how can the state of exception, founded as it is on the the state of necessity, which has no law [see Section 1.9.], have a juridical form?
2.1. Schmitt knows perfectly well that because it [added: the state of exception] brings about a “suspension of the entire existing juridical order” the state of exception seems to “subtract itself from any consideration of law” and that indeed “in its factual substance, that is, in its core, it cannot take a juridical form” [Page 32–33]
Also, given its position at the limit — no-man’s land, ambiguous zone — between politics and law, the state of exception defies even definition let alone theorisation.
Perhaps the best way to explain the state of exception is by reconstructing the problem, at least in the way it is presented in the case of modern liberal democracies. We start with a constitutional order built on a scheme of separation of powers and a list of individual rights enforceable by individuals against the state. If a problem arises between members of this political community, in an adequate governability framework we would expect it to be addressed by public bodies according to the constitutional division of functions. This would be so either because the situation in dispute is governed by general rules of conduct adopted by the legislature, because it only requires that the executive put into force the existing norm or because it is necessary that the judiciary adjudicate a dispute as to the content or scope of the norm. The exercise of each of these functions is, in turn, limited by respect for individual rights of the members of the community.
This describes a legal-political order operating normally. Suppose, however, that there is a problem whose solution cannot be achieved under the normal distribution of powers or being the case individual rights must be respected. For purposes of this part of the discussion and in order to understand the main points of discussion, assume that the problem in question has the character of a crisis, an emergency that jeopardizes the very existence of the state or the political community. Consider the case of an invasion by a foreign enemy or a natural disaster like the earthquake in Haiti in January 2010.
To this scenario then add that the only way the crisis can be overcome is through measures that would not be permissible under the existing legal order. This would be so because they entail acting contrary to the scheme of the division of powers, as would be recognizing that the executive branch can legislate, or because they require limiting constitutional rights of individuals, as in the case of preventive detention.
From the point of view of the normative system, the above situation could have a clear answer: none of the alternatives really exist because the legal order does not support actions contrary to it. However, when we are dealing with critical circumstances that endangers the very existence of the legal order or the political community, it is suggested that the situation of necessity would force the need
to act, even where this involves a transgression of the established legal order. We must then ask: Is this a reality that goes beyond the legal and operates as a necessary act, or can this type of alternative exist within the legal order itself? [William Vázquez Irizarry “Exception and Necessity”]
1.8. In truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other. [Page 23]
2.1 [The] articulation between state of exception and juridical order ... is a paradoxical articulation, for what must be inscribed within the law is something that is essentially exterior to it, that is, nothing less than the suspension of the juridical order itself. [Page 33]
The purpose of the book [sadly, not of this chapter] is to lift the veil covering this ambiguous zone between law and politics, the juridical order and life.
1.8. “In any case, to understand the problem of the state of exception, one must first correctly determine its localization (or illocalization). As we will see, the conflict over the state of exception presents itself essentially as a dispute over its proper locus.” [Page 24]
1.2. This purpose is made urgent because “… the voluntary creation of a permanent state of emergency … has become one of the essential practices of contemporary states, including so-called democratic ones. … This transformation of a provisional and exceptional measure into a technique of government threatens radically to alter — in fact, has already palpably altered — the structure and meaning of the traditional distinction between constitutional forms”.
1.3. Futher, the state of exception has far-reaching biopolitical consequences.
For Agamben, such suspension of the law is pivotal in that it directly affects people’s lives, not as subjects of politics or citizens, but as human beings as such. [David Giordanengo “The State of Exception”]
Consider the USA Patriot Act which allowed the attorney general to take into custody any alien suspected of endangering the national security of the US and the subsequent “military order [added: relevant section is Sec 7 (b)]” which turned that alien into a “legally unnamable and unclassifiable being” since any individual so captured had no “privilege to seek any remedy”. S/he would no longer be a person nor even a prisoner but merely a “detainee” whose identity as a person is erased and whose existence is subject to a pure de facto rule completely removed from the law.
1.4. If, as has been suggested, terminology is the properly poetic moment of thought, then terminological choices can never be neutral. In this sense, the choice of the term state of exception implies a position taken on both the nature of the phenomenon that we seek to investigate and the logic most suitable for understanding it.
1.5. The debate on the theory of the state of exception started in during the 1930s and 40s in the context of the collapse of Europe’s democracies. The debate was centered around the concept of constitutional dictatorship (see below). What emerges from the debate is the realisation that the state of exception “increasingly appears as a technique of government rather than an exceptional measure, but it also lets its own nature as the constitutive paradigm of the juridical order come to light”.
Herbert Tingsten [Les pleins pouvoirs (1934)] examined the technical problem associated with the delegation of full powers to the executive.
The expression full powers (pleins pouvoirs), which is sometimes used to characterize [added: but does not coincide with] the state of exception, refers to the expansion of the powers of the government, and in particular the conferral on the executive of the power to issue decrees having the force of law. [Page 5]
The problem simply is that in conferring the executive full powers in order to deal with exceptional circumstances, the legislative power of the parliament is superseded. Tingsten inventories a large number of case histories and moves to the realisation that if this supersession becomes “systematic and regular”, democracy will be liquidated. And in fact, such supersession has become common practice!
Carl J. Friedrich [Constitutional Government and Democracy (1941)] distinguished between constitutional dictatorship and unconstitutional dictatorship. This is analogous to Carl Schmitt’s distinction between commissarial dictatorship and sovereign dictatorship.
There [added: in the book, Dictatorship: From the Origin of the Modern Concept of Sovereignty to Proletarian Class Struggle (1921)] he [Carl Schmitt] traced the history of dictatorship and concluded that it can be categorized into two forms: commissarial and sovereign. A sovereign dictatorship utilizes a crisis to abrogate the existing constitution in order to bring about a “condition whereby a constitution [that the sovereign dictator] considers to be a true constitution will become possible,” whereas a commissarial dictatorship endeavors to restore order so that the existing constitution can be revived and allowed to function normally. [George Schwab, Introduction to Political Ideology, p. xix]
The former seeks to safeguard the constitutional order while the latter, to overthrow it. The problem is that the former invariably transitions into the latter with the result was that the very order that the former sought to protect is destroyed by the latter. Consider the transition that happened in Germany from the Weimar Republic to the Third Reich. How to define or overcome this transition?
Nazi Germany, in fact, did not operate in violation of the Weimar Constitution, but within the framework of its articles that allowed the government to suspend individual rights in case of necessity. Thus, “from a juridical perspective, the entire Third Reich can be considered a state of exception that lasted twelve years” [David Giordanengo “The State of Exception”]
Clinton R. Rossiter [Constitutional Dictatorship (1948)] tries to justify constitutional dictatorship. His hypothesis is that because democratic regimes function under normal circumstances, in times of crises, that democratic arrangement must be suspended precisely in order to restore normal conditions. But in trying to demonstrate the necessity of constitutional dictatorship, Rossiter runs into contradictions. It is impossible to neither indicate a substantial difference between constitutional and unconstitutional dictatorship nor demonstrate that the transition from the former to the latter can be ruled out. This impossibility is because the difference between the two is not of nature but of degree. Hence, it is difficult the flesh out a distinct boundary separating the two.
1.6. In the legal traditions of the West, the state of exception finds itself located in orders that either regulate it through the constitution or a law (France, Germany) or leave it unregulated (Italy, England, Switzerland and the US).
Scholarship is also divided similarly among those who favour constitutional or legislative provision for the state of exception and those who “criticize the pretense of regulating by law what by definition cannot be put in norms”.
1.7. “[W]hat is ultimately at issue is the question of the juridical significance of a sphere of action that is in itself extrajuridical. Two theses are at odds here: One asserts that law must coincide with the norm, and the other holds that the sphere of law exceeds the norm. But in the last analysis, the two positions agree in ruling out the existence of a sphere of human action that is entirely removed from law.”
(This really is the meat of the chapter.)
1.8. Those who contend that the state of exception should be included within the sphere of the juridical order understand the state of exception either as a part of positive law grounded on the understanding of necessity as a source of law or as the state’s subjective right to self preservation. Those who contend otherwise view the state of exception and the necessity that grounds it as political, external, extrajudicial, or de facto elements.
However, this opposition (inside/outside, judicial/extrajudicial, juridical/political) appears insufficient. Because “[i]f the state of exception’s characteristic property is a (total or partial) suspension of the juridical order, how can such a suspension still be contained within it?” And “if the state of exception is instead only a de facto situation, and is as such unrelated or contrary to law, how is it possible for the order to contain a lacuna precisely where the decisive situation is concerned?”
“In truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other. The suspension of the norm does not mean its abolition, and the zone of anomie that it establishes is not (or at least claims not to be) unrelated to the juridical order. … In any case, to understand the problem of the state of exception, one must first correctly determine its localization (or illocalization). As we will see, the conflict over the state of exception presents itself essentially as a dispute over its proper locus.”
1.9. The concept of necessity is posited as the foundation of the state of exception. The adage necessitas legem non habet or ‘necessity has no law’ can be interpreted to mean either ‘necessity does not recognise any law’ or ‘necessity creates its own law’. Whichever the interpretation, an analysis of the concept of necessity should resolve questions concerning the legitimacy of the state of exception.
The theory of necessity in Gratian’s Decretum and Aquinas’ Summa Theologica is that of a theory of the exception where a particular case is released from the obligation to observe the law. The issue is not that of the status of the juridical order as such.
“It is preferable not to sing or listen to the mass than to celebrate it in places where it should not be celebrated, unless it happens because of a supreme necessity, for necessity has no law” [Gratian]
“If there is, however, a sudden danger, regarding which there is no time for recourse to a higher authority, the very necessity carries a dispensation with it, for necessity is not
subject to the law.” [Aquinas]
1.10. With the moderns, the state of necessity becomes a part of the juridical order. The principle whereby necessity leads to the suspension of law is reversed and necessity becomes the “ultimate ground and very source” of law.
Santi Romano, for instance, asserts that necessity is the true, proper, first and originary source of law. This source lies prior to or beyond legislation but within the juridical order. There is a distinction between the juridical order understood as “law in the abstract, or the entire sphere of law” and the law which refers to “the specific body of rules that a community or state considers binding”. The state of exception then is a perfectly juridical (within the juridical order) even if illegal (outside of the law) measure realised in the production of new norms out of necessity.
Thus, “the status necessitatis [state of necessity] appears as … a threshold where fact and law seem to become undecidable. If it has been effectively said that in the state of exception fact is converted into law, the opposite is also true, that is, that an inverse movement also acts in the state of exception, by which law is suspended and obliterated in fact. The essential point, in any case, is that a threshold of undecidability is produced at which factum and ius fade into each other.”
The most extreme aporia of the theory of the state of necessity against which the theory runs aground is that, in the final analysis, “necessity is a subjective judgment, and that obviously the only circumstances that are necessary and objective are those that are declared to be so”.
- Agamben, Giorgio. 2005. The State of Exception. Translated by Kevin Attell. Chicago: The University of Chicago Press.
- Giordanengo, Davide. 2016. “The State of Exception.” E-International Relations.
- Gullì, Bruno. 2007. “The Ontology and Politics of Exception.” In Giorgio Agamben: Sovereignty and Life, 219–42. Stanford, CA: Stanford University Press.
- ———. 2009. “The Sovereign Exception: Notes on Schmitt’s Word That Sovereign Is He Who Decides on the Exception.” Glossator 1: 23–30.
- Irizarry, William Vázquez. 2010. “Exception and Necessity: The Possibility of a General Theory of Emergency.” [Originally published as “Excepción y necesidad: la posibilidad de una teoría general de la emergencia” in SELA 2010: Inseguridad, Democracia y Derecho 274 (2010)]
- Schwab, George. 1985. “Introduction.” In Political Theology: Four Chapters on the Theory of Sovereignty, xi–xxvi. Cambridge, Mass.: MIT Press.