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Giorgio Agamben “State of Exception”

Agamben, Giorgio 2005. State of Exception. Chicago and London: The University of Chicago Press.

  1. The State of Exception as a Paradigm of Government

The state of exception is not a special kind of law (like the law of war); rather, insofar as it is a suspension of the juridical order itself, it defines law’s threshold or limit concept. (4)

Schmitt’s distinction between commissarial dictatorship and sovereign dictatorship reappears here as an opposition between constitutional dictatorship, which seeks to safeguard the constitutional order, and unconstitutional dictatorship, which leads to its overthrow. (8)

[Schmitt]: “No sacrifice is too great for our democracy, least of all the temporary sacrifice of democracy itself.” (9)

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. (23)

[…] in the forms of both the state of exception and revolution, the status necessitatis appears as an ambiguous and uncertain zone in which de facto proceedings, which are in themselves extra- or antijuridical, pass over into law, and juridical norms blur with mere fact – that is, a threshold where fact and law seem to become undecidable. […] The essential point, in any case, is that a threshold of undecidability is produced at which factum and ius fade into each other. (29)

In analogy with the principle according to which the law may have lacunae, but the juridical order admits none, the state of necessity is thus interpreted as a lacuna in the public law, which the executive power is obligated to remedy. In this way, a principle that concerns the judiciary power is extended to the executive power. But in what does the lacuna in question actually consist? Is there truly something like a lacuna in the strict sense? Here, the lacuna does not concern a deficiency in the text of the legislation that must be completed by the judge; it concerns, rather, a suspension of the order that is in force in order to guarantee its existence. Far from being a response to a normative lacuna, the state of exception appears as the opening of a fictitious lacuna in the order for the purpose of safeguarding the existence of the norm and its applicability to the normal situation. The lacuna is not within the law, but concerns its relation to reality, the very possibility of its application. It is as if the juridical order contained an essential fracture between the position of the norm and its application, which, in extreme situations, can be filled only by means of the state of exception, that is, by creating a zone in which application is suspended, but the law, as such, remains in force. (31)

  1. Force-of-Law

In Dictatorship, the operator of this inscription of an outside of the law within the law is, in the case of commissarial dictatorship, the distinction between norms of law and norms of the realization of law and, in the case of sovereign dictatorship, the distinction between constituent power and constituted power. Indeed, because it “suspends the constitution in concreto in order to protect its concrete existence” (Schmitt 1921, 136), commissarial dictatorship ultimately has the function of creating a state of affairs “in which the law can be realized” (137). In commissarial dictatorship, the constitution can be suspended in its application “without thereby ceasing to remain in force, because the suspension signifies solely a concrete exception” (137). On a theoretical level, commissarial dictatorship can thus be wholly subsumed in the distinction between the norm and the techno-practical rules that govern its realization. (33)

In suspending the norm, the state of exception “reveals, in absolute purity, a specifically juridical formal element: the decision” (Schmitt 1922, 13). The two elements, norm and decision, thus show their autonomy. “Just as in the normal situation the autonomous moment of decision is reduced to a minimum, so in the exceptional situation the norm is annulled. And yet even the exceptional situation remains accessible to juridical knowledge, because both elements, the norm as well as the decision, remain within the framework of the juridical” (13/12-13). (34)

Being-outside, and yet belonging: this is the topological structure of the state of exception. (35)

Take now the opposition between norm and decision. Schmitt shows that they are irreducible, in the sense that the decision can never be derived from the content of a norm without a remainder (Schmitt 1922, 9/6). In the decision on the state of exception, the norm is suspended or even annulled; but what is at issue in this suspension is, once again, the creation of a situation that makes the application of the norm possible (“a situation in which juridical norms can be valid must be brought about”). That is, the state of exception separates the norm from its application in order to make its application possible. It introduces a zone of anomie into the law in order to make the effective regulation of the real possible. We can, then, define the state of exception in Schmitt’s theory as the place where the opposition between the norm and its realization reaches its greatest intensity. (36)

[…] the concept of “force of law”, as a technical legal term, defines a separation of the norm’s vis obligandi, or applicability, from its formal essence, whereby decrees, provisions, and measures that are not formally laws nevertheless acquire their “force”. (38)

[…] from a technical standpoint the specific contribution of the state of exception is less the confusion of powers, which has been all too strongly insisted upon, than it is the separation of “force of law” from the law. It defines a “state of the law” in which, on the one hand, the norm is in force but is not applied (it has no “force”) and, on the other, acts that do not have the value of law acquire its “force”. (38)

[…] in the case of law, the application of a norm is in no way contained within the norm and cannot be derived from it; otherwise, there would have been no need to create the grand edifice of trial law. Just as between language and world, so between the norm and its application there is no internal nexus that allows one to be derived immediately from the other. (40)

[…] in order to apply a norm it is ultimately necessary to suspend its application, to produce an exception. (40)

  1. Gigantomachy Concerning a Void

What the law can never tolerate – what it feels as a threat with which it is impossible to come to terms – is the existence of violence outside the law; and this is not because the ends of such a violence are incompatible with law, but because of “its mere existence outside the law” (Benjamin 1921, 183/239). (53)

The theory of sovereignty that Schmitt develops in his Political Theology can be read as a precise response to Benjamin’s essay. While the strategy of “Critique of Violence” was aimed at ensuring the existence of a pure and anomic violence, Schmitt instead seeks to lead such a violence back to a juridical context. (54)

The sovereign violence in Political Theology responds to the pure violence of Benjamin’s essay with the figure of a power that neither makes nor preserves law, but suspends it. Similarly, it is in response to Benjamin’s idea of an ultimate undecidability of all legal problems that Schmitt affirms sovereignty as the place of the extreme decision. (54)

While for Schmitt the decision is the nexus that unites sovereignty and the state of exception, Benjamin ironically divides sovereign power from its exercise and shows that the baroque sovereign is constitutively incapable of deciding. (55)

While in Schmitt “the sovereign is identified with God and occupies a position in the state exactly analogous to that attributed in the world to the God of the Cartesian system” (Schmitt 1922, 43/46), in Benjamin the sovereign is “confined to the world of creation; he is the lord of creatures, but he remains a creature” (Benjamin 1928, 264/85). This drastic redefinition of the sovereign function implies a different situation of the state of exception. It no longer appears as the threshold that guarantees the articulation between an inside and an outside, or between anomie and the juridical context, by virtue of a law that is in force in its suspension: it is, rather, a zone of absolute indeterminacy between anomie and law, in which the sphere of creatures and the juridical order are caught up in a single catastrophe. (57)

What opens a passage toward justice is not the erasure of law, but its deactivation and inactivity – that is, another use of the law. This is precisely what the force-of-law (which keeps the law working beyond its formal suspension) seeks to prevent. Kafka’s characters – and this is why they interest us – have to do with this spectral figure of the law in the state of exception; they seek, each one following his or her own strategy, to “study” and deactivate it, to “play” with it. (64)

  1. Auctoritas and Potestas

In the sphere of private law, auctoritas is the property of the auctor, that is, the person sui iuris (the pater familias) who intervenes – pronouncing the technical formula auctor fio [I am made auctor] – in order to confer legal validity on the act of a subject who cannot independently bring a legally valid act into being. Thus, the auctoritas of the tutor makes valid the act of one who lacks this capacity, and the auctoritas of the father “authorizes” – that is, makes valid – the marriage of the son in potestate. Analogously, the seller (in a mancipatio) is bound to assist the buyer in confirming his title of ownership in the course of a claim proceeding involving a third opposing party. (76)

[…] we need only reflect on the formula auctor fio (and not simply auctor sum) to realize that it seems to imply not so much the voluntary exercise of a right as the actualization of an impersonal power [potenza] in the very person of the auctor. (77)

As we have seen, in public law auctoritas designates the most proper prerogative of the Senate. The active subjects of this prerogative are therefore the patres: auctoritas patrum and patres auctores fiunt [the fathers are made auctors] are common formulas for expressing the constitutional function of the Senate. (77)

Under extreme conditions (that is to say, under the conditions that best define it, if it is true that a legal institution’s truest character is always defined by the exception and the extreme situation) auctoritas seems to act as a force that suspends potestas where it took place and reactivates it where it was no longer in force. It is a power that suspends or reactivates law, but is not formally in force as law. (79)

The norm can be applied to the normal situation and can be suspended without totally annulling the juridical order because in the form of auctoritas, or sovereign decision, it refers immediately to life, it springs from life. (85)

The juridical system of the West appears as a double structure, formed by two heterogeneous yet coordinated elements: one that is normative and juridical in the strict sense (which we can for convenience inscribe under the rubric potestas) and one that is anomic and metajuridical (which we can call by the name auctoritas). The normative element needs the anomic element in order to be applied, but, on the other hand, auctoritas can assert itself only in the validation or suspension of potestas. (86)

The aim of this investigation – in the urgency of the state of exception “in which we live” – was to bring to light the fiction that governs the arcanum imperii par excellence of our time. What 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. (86)

The normative aspect of law can thus be obliterated and contradicted with impunity by a governmental violence that – while ignoring international law externally and producing a permanent state of exception internally – nevertheless still claims to be applying the law. (87)

But if it is possible to attempt to halt the machine, to show its central fiction, this is because between violence and law, between life and norm, there is no substantial articulation. (87)

There are not first life as a natural biological given and anomie as the state of nature, and then their implication in law through the state of exception. On the contrary, the very possibility of distinguishing life and law, anomie and nomos, coincides with their articulation in the biopolitical machine. Bare life is a product of the machine and not something that preexists it, just as law has no court in nature or in the divine mind. Life and law, anomie and nomos, auctoritas and potestas, result from the fracture of something to which we have no other access than through the fiction of their articulation and the patient work that, by unmasking this fiction, separates what it had claimed to unite. (88)

To show law in its nonrelation to life and life in its nonrelation to law means to open a space between them for human action, which once claimed for itself the name of “politics”. […] The only truly political action, however, is that which severs the nexus between violence and law. And only beginning from the space thus opened will it be possible to pose the question of a possible use of law after the deactivation of the device that, in the state of exception, tied it to life. We will then have before us a “pure” law, in the sense in which Benjamin speaks of a “pure” language and a “pure” violence. To a word that does not bind, that neither commands nor prohibits anything, abut says only itself, would correspond an action as pure means, which shows only itself, without any relation to an end. And, between the two, not a lost original state, but only the use and human praxis that the powers of law and myth had sought to capture in the state of exception. (88)

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