The State of Exception
I wrote this essay as a politics student, back in 2009, in the context of an independent study carried out with several other colleagues. During the spring semester of 2019 a group of 5-6 of us met once a week to discuss and debate readings on various strands of political philosophy dealing with “The State of Exception”.
As we are seeing more and more European countries declaring A state of Exception, this old essay came to my mind. It does not represent my own views but rather an analysis of another’s work, in this case the works of the Italian philosopher Giorgio Agamben.
Please bare with my young and not fully matured (at that point) writing style. I am sharing this with a view to provide those respecting the self-quarantine rule something to read, in case interested.
This is disconnected from the need to deal with a pandemic, which of course requires special measures. However, it is interesting to see that the possibility of pure exceptional law is back in our societies. I encourage the readers to pay close attention to the political debate around exceptionalism, as it evolves with time.
13th of May, 2009
The State of Exception as the possibility for ‘pure law’
Exceptions are becoming the norm in global politics. What does that mean and what possibilities of meaning does this hold? In other words, what could it mean?
I will try to answer by looking at a case thoroughly examined by Giorgio Agamben in his exceptionally illuminating study The State of Exception. The theory the Italian theoretician puts forth is complex as he is simultaneously proving that:
1. the state of exception is becoming the contemporary paradigm of government;
2. the state of exception presents itself as an emptiness, a void of rules leading the way to autocracy.
Ultimately, he is attempting to answer the question of “What does it mean to act politically?”(p 2), in order to cast light over the implications of the state of exception having become the rule.
Given the almost insurmountable difficulties that arise when one attempts to grasp a void space with no characteristics of its own other than the fact that it fits into neither of the already pre-determined categories, Giorgio Agamben takes a very efficient first step at attempting to define the state of exception by emphasizing its localization.
From the very first page of the study, the concept is described “like civil war, insurrection and resistance – in an ambiguous, uncertain, borderline fringe at the intersection of the legal and the political” or better yet, at “a no man’s land between public law and the political fact between the juridical order and life” (p 1). However, this intersection must not be seen as the actual point where two concurrent lines meet but rather as a zone of tensions.
Just like a border isn’t constituted of a simple more or less imaginary line but is made out of an entire porous zone of peculiarities and multiple belonging, the state of exception is a multidimensional, well-hidden, zone of “indeterminacy between democracy and absolutism” (p 3). This points to the fact that the state of exception operates within the boundaries of the democratic-revolutionary tradition yet it negates it at the same time. This leads the discussion to Agamben’s next step, the engagement with the most important coordinates he uses in mapping out the localization the state of exception:
- the law;
- the juridical.
“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 each other” (p 23). This phrase holds a key component to Agamben’s theory as it points to
the very “nature” of the exception as operating in a grey area outside the norms but that can become included in the norms if the boundaries defining those norms are to be blurred out, hence the inclusion of the state of siege (or the concept of emergency powers) into the constitution.
The ground of the judiciary is nonetheless, the law, meaning that the blurring of the borders will result in a whole new range of possibilities for the law to encompass new actions that may have been outside the law up to that point. Clearly, such an action would seem to act against that for which the very idea that law stands for, rendering law itself illegal (p 25).
However, in the state of exception, the law remains in place, its application being legitimized through the expansion of the judiciary to incorporate the exception and to render the necessary means to deal with the ‘exception’, exceptionally legal:
“The modern state of exception is instead an attempt to include the exception itself within the juridical order by creating a zone of indistinction in which fact and law coincide” (p 26).
Agamben does not fail to highlight the dangers inherent in the concept of necessity as the problem in using it as a legitimizing force is that necessity is “relative to the aim that one wants to achieve” (p 30), therefore dismissing the idea that it could ever be an objective thing. The implications of this dismissal are huge for the state of exception and shift the focus to the extra-juridical component of it, the political one, that which judges the juridical order and decides whether it is necessary to be preserved and strengthened, even at the price of its own violation (p 30).
The discussion above casts light on the difference that exists between the norms of law and their realization, a difference that Agamben identifies as the very condition of possibility of existence of both those concepts under the state of exception. By doing so, the state of exception “introduces a zone of anomie into the law in order to make the effective regulation of the real possible” (p 36).
This brings about the concern that law’s relationship to reality is characterized by many tensions that can only be contained through the very suspension of the law, for the maintenance of the law. Quite an oxymoron which Agamben identifies it to have risen from the democratic tradition but that fails to be consistent with democratic principles nonetheless. It is here where the idea of the ‘force of law’ comes into play, being the means through which the judiciary and the law manage to encompass their own suspension.
The author identifies those means as being “those decrees that the executive power can be authorized to issue in some situations, particularly in the state of exception” (p 38). These special provisions are not part of the law, but acquire the “force” of law, a concept that seems to answer some of the question Agamben poses at the beginning of his study. The state of exception becomes more clearly defined as “the anomic space in which what is at stake is a force of law without law” (p 38).
Giorgio Agamben spends quite some time in his book dealing with the different other thinkers that have engaged the state of exception in their theories. He reaches the conclusion that the theories that attempt to annex the state of exception to the law, together with the ones that identify necessity as the originary source of the state of exception or that see this space as the exercise of a restoration of an pleromatic state of law, are false (p 50).
The reasoning behind this evaluation resides within the lack of interests on the part of the other theories towards the modes of this state of affairs, an area thoroughly analyzed under the concept of the tumultus generated by an iustitium in the Roman system. The tumultus refers to a state of civil fermentation or insurrection that arises after an iustitium that suspends the law creating a juridical void is proclaimed. In tracing back contemporary political practices to Roman practices and politics, the author points towards the fact that:
“The relation between bellum[1] (war) and tumultus is the same one that exists between war and military state of siege on the one hand and state of exception and political state of siege on the other” (p 42).
What the author is attempting to address here is the concept of the iustitium as a form of the state of exception that “seems to call into question the very consistency of the public space; yet, conversely, the consistency of the private space is also immediately neutralized to the same degree. The paradoxical coincidence of private and public, of ius civile and imperium, and, in the extreme case, of juridical and nonjuridical, betrays the difficulty surrounding the nature of acts committed during the iustitium” (p 49).
The zone of indeterminacy becomes problematic by the difficulty of placing actions produced in a juridical void under a juridical form, making them mere acts that have no other attribute to them or any relationship to law, therefore “inexecuting law” (p 50).
With the passing of an iustitium, life is being abandoned to the force of law, depriving life of any status and bringing it close to the non-being. So where do human rights stand in this? Do they still have a role? They were introduced to provide an answer to this very legal void which creates “bare life” (According to Hanna Arendt).
Ultimately, society at large has to hold on to its rights so that life is firstly and primordially a set of rights which are safeguarded even in the state of exception.
Agamben identifies the tumultus to be a response of the “anomic terror” that emanates from “the darkest spheres of psychology”, intrinsic to human nature that manifests itself in the strongest in liminal situations such as the state of exception (p 66). As little relevance as this discussion may seem to have for the discussion of contemporary paradigms of government, it finally then introduces the idea of the ‘august’, of the sovereign as the living law, that becomes the last extremely important piece that Agamben uses in further analyzing the state of exception.
In order to have life and law so tightly connected, blurring of borders is needed again, this time between the private and the public law, being this particular instance that characterizes the state of exception. Going back one last time to the Roman Res Publica , these blurring of borders make the auctor who is the guarantor or perfector of private law becomes the executor of the force that suspends and reactivates law as he is the holder of authority over what is legal and what is not (p 79).
And this is how we risk ending up in an authoritarian system and ending the democratic tradition from which this practice arose (i.e. the constitutional nature of the state of exception).
Agamben’s ultimate goal in pursuing this extremely intricate investigation of the biopolitical machine that the state of exception constitutes is ultimately an attempt at showing that bare life is only a product of this machine and not the purpose for which this machine exists (p 87, 88).
The role that the state of exception plays in the creation of this non-sensical and authoritarian machine is crucial, as “the ‘ark’ of power contains at its center is the state of exception – but this is essentially an empty space, in which a human action with no relation to law stands before a norm with no relation to life” (p 86).
What the State of Exception ultimately presents its readers with is a discussion of the great tensions created by law’s attempt to contain life and by the attempt of politics to contain law.
[1] Latin for war