Reading Group: Giorgio Agambens State of Exception

1. A Brief History on the State of Exception (pp. 11-22)

a. Modern States

At least 147 countries with constitutional provisions allowing for states of

emergency (Humphreys 683)

(Constitution of 22 Frimaire Year 8, Article 92):

In the case of armed revolt or disturbances that would threaten the security of the
State, the law can, in the places and for the time that it determines, suspend the
rule of the constitution. (5)

(Article 20, German Federal Republic):

Against anyone who attempts to abolish [the democratic constitution], all
Germans have a right of resistance, if no other remedies are possible. (11)

An estimated 30 countries were in some form of state of emergency in 1978, the

number was 70 in 1986 (Humphreys 683)

b. WWI (and beyond) as a laboratory for the state of exception

Weimar Consitution (1919 1933)

If security and public order are seriously disturbed or threatened in the
German Reich, the president of the Reich may take the measures necessary to
reestablish security and public order, with the help of the armed forces if
required. To this end he may wholly or partially suspend the fundamental rights
established in Articles 114, 115, 117, 118, 123, 124, and 153 (Article 48)
Carl Schmitt: no constitution on earth had so easily legalized a coup detat as
did the Weimar Constitution (15)
In fact, Article 48 was declared on more than 250 times
The defunct parliament and porous constitution allowed Hitler to take over
Germany
According to Agamben, [N]either Hitler nor Mussolini can technically be
defined as dictators . . . they placed beside the legal constitution a second
structure, often not legally formalized, that could exist alongside the other
because of the state of exception (48).

France 1924:
The Poincare government asked for full powers over financial matters when the
franc faced serious instability.

United States (pp. 19 22)

The case of Lincoln and Civil War (pp. 20)
A turn from military emergencies to economic emergencies after the Great

Depression (Roosevelt)
Bush as Commander in Chief of the Army after 9/11
c. The Latin/Roman Law Tradition (1.9)

necessity has no law

If there is . . . 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

State of Exception has a recourse to a theory of necessity

Two questions
Who/what/how decides on the necessity? Is the decision itself inside or
outside the juridical order?
Whether necessity (just ends) justifies the means (state of exception)?

d. History of iustitium in Roman Tradition

Iustitium: literally, a standstill/suspension of law

Originally, a state of iustitium is declared by the final decree of senate (senatus

consultum ultimum)

With the end of the Roman Republic, iustitium acquired a new meaning, in which it
acquire[d] the meaning of public mourning for the death of the sovereign or his
close relative (65).

For instance, Emperor Augustus proclaimed a iustitium every time the family
mausoleum was opened.

2. Theoretic Background on the State of Exception

e. Constitutional Dictatorship vs. Unconstitutional Dictatorship (1.5)

Key figures include: Carl Schmitt, Carl Friedrich, Clinton Rossiter

These scholars sought to study, in their own ways, the systematic expansion of
executive powers when a state of siege was declared in cases of emergency.

Schmitt:
The sovereign is he who decides on the state of exception
Schmitt distinguishes between commissarial and sovereign dictatorship
The former seeks to preserve the constitution, while the latter leads to its
overthrow/revolt
Nevertheless, regardless of the form of dictatorship, for Schmitt the state of
exception is always something different from anarchy and chaos, in a juridical
sense, an order still exists in it, even if it is not a juridical order (33)

Rossiter:

 Sought to justify the necessity of constitutional dictatorship

Yet, as Agamben points out, the distinction between commissarial dictatorship
and sovereign dictatorship is not one of nature but of degree (9).
[N]o sacrifice is too great for our democracy, least of all the temporary
sacrifice of democracy itself.
f.

Walter Benjamin

On the Concept of History (Theses VIII):

The tradition of the oppressed teaches us that the emergency situation in which
we live is the rule. We must arrive at a concept of history which corresponds to this.
Then it will become clear that the task before us is the introduction of a real state
of emergency; and our position in the struggle against Fascism will thereby
improve. . .

Critique of Violence (4.2)

The essay explores the possibility of a violence that lies beyond the binary/dialectic
between law-making & law-preserving violence

3. Summary of Agambens Theory of the State of Exception

i.

The state of exception is a paradigmatic form of government for contemporary

states, including so-called democratic ones. (1.2)
S.O.E. allows for the exclusion of citizens / non-citizens from their basic rights
(homo sacer)
It is in this sense that the S.O.E. is biopolitical, i.e. law-encompassing-life
For Agamben, S.O.E. marks the threshold of indeterminacy between
democracy and absolutism

ii.

In the Western legal tradition, the state of exception is divided into those orders that
regulate it via constitution, and those that do not regulate the problem explicitly
(1.6)
In other words, traditional legal theorists either think of it as something
internal to the juridical order (i.e. S.O.E. can be regulated and justified by law),
and those who see it as external to the juridical (i.e. S.O.E. as regulated by a
good faith that is extra-legal)

iii.

The inside/outside opposition is insufficient in accounting for the S.O.E. (1.8)

iv.

Similarly, the necessity/law binary is insufficient to ground the S.O.E. (1.10)

There is a belief, from Roman Law tradition onwards, that thinks that necessity
or expedience is sufficient to release a particular case from the obligation to
observe the law
There are also those who see necessity as the first and originary source of all

law
v.

Force-of-law

vi.

For Agamben, the state of exception is kenomatic rather than pleromatic (3.6)
Where Schmitt tries to legalize the non-legal (state of exception) via his theory
of dictatorship, Agamben seeks to de-link law from violence by way of
Benjamin
For Schmitt, the Sovereign is the figure with the full power to (legally) intervene
and decide on the state of exception. He is Godlike in being-outside, and yet
belonging (thus the title Political Theology).
For Agamben, however, this problematic relation of the sovereign to law
where there is no locatable point for the figure of the sovereign precisely
makes of the sovereign decision a decision without legal ground.
Ultimately, the distinction is between that of iustitium/dictatorship, suspension
of power/full power, natural state of law/force-of-law, kenomatic/pleromatic.

vii.

Delving into the exoteric debate between Schmitt and Benjamin, Agamben
disentangles justice from law, violence from ends, purity from substance, human
action from law:

viii.

By way of Benjamin, Agamben seeks to depose of law, to de-link life from the
violence that purports to be law, to study or play with law so that it opens up a
gate[way] of justice (4.8):

4. Legal Disputes
a. Does not address the separation of power and/or other check-and-balance mechanisms
within the state

5. Questions:

If, as Agamben demonstrates, the executive, the legislative and judiciary is founded
on a fictitious rather than substantial separation, how do we think a politics where
violence/life/law are separated? What does this non-relation mean?

If the state of exception has indeed become a paradigm for the modern
government; if, in other words, the problematic locus of a state of exception is
nothing less than the place and method with which modern govern-mentality
realizes its acute power, then, how and where should we situate
resistance-from-below under a post-totalitarian regime? (What does it mean to act
politically?)

How do we construe of resistance movements that do not seek to destroy state

sovereignty outright?

How do we think the state of exception in its specificity, i.e. in specific cases and/or
contexts? How are these zones of anomie (in which law purports to, but ultimately
fails to, intervene) effectuated in and through modern governmentality?

6. References:
a. Legalizing Lawlessness: On Giorgio Agambens State of Exception
http://207.57.19.226/journal/Vol17/No3/art7.pdf
b. Notes on the Thought of Walter Benjamin: Critique of Violence
http://criticallegalthinking.com/2013/10/11/notes-thought-walter-benjamin-critique-vio
lence/
c. Giorgio Agamben: Destroying Sovereignty
http://ceasefiremagazine.co.uk/in-theory-giorgio-agamben-destroying-sovereignty/
d. Walter Benjamin: Critique of the State
http://ceasefiremagazine.co.uk/walter-benjamin-critique-state/