agamben state of exception summary

Likewise, “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” (23). 1.1. In Chapter 2, “Force of Law Without Law”, Agamben critically appraises Schmitt’s theory theory of state of exception/sovereignty in order to develop his conception of the state of exception as an ambiguous zone of indistinction connected to the juridical order. In this context, “authority seems to act as a force that suspends power where it took place and reactivates it where it was no longer in force. In Chapter 4, “Gigantomachy Concerning a Void,” Agamben definitely states what is at stake in Schmitt’s theories on the state of exception and sovereign power: a sphere of action entirely removed from the law. The connection between iustitium and mourning, according to Agamben, reveals its “true meaning” within this context: If the sovereign is a living nomos, and if, for this reason, anomie and nomos perfectly coincide in his person, then anarchy (which threatens to loose itself in the city upon the sovereign’s death, which is to say, when the nexus that joins it to the law is severed) must be ritualized and controlled, transforming the state of exception into public mourning and mourning into iustitium. Agamben also traces this relation of exclusion and supplementation between authority and power to another institution, the hostis iudicatio, which likewise reveals figure of authority’s specific function: suspending the law where it looses it grasp on reality.  In exceptional situations, the Senate had the authority to declare a Roman citizen that threatened the security of the Republic “public enemy” (i.e., hostis). Zōon Politikon’s Doppelgänger: Comparing the Political Existence of Man in the Political Philosophies of Aristotle and Aquinas, The Meaning of Labour In John Locke’s Theory of Labour, Introduction to the History of the War Measures Act (Working Draft), The British North America Act (1867): Emergency Power and Implied Rights. “Because it brings about a standstill and suspension of the entire juridical order” (47), the state of exception is best understood, as a “kenomatic state, an emptiness and standstill of the law” (48). The state of exception is an anomic space in which what is at stake is a force of law without law (which should therefore be written: force-of-law).6 Such a force of law, in which potentiality and act are radically separated, is certainly something like a mystical element, or rather a fictio by means of which law seeks to annex anomie to itself (38-9). The relevant passage of the famous funerary inscription reads: “After that time I [Augustus] surpassed all in authority, although I had no more power than those who were my colleagues in each magistracy” (81). Thomas’s assertion regarding the sovereign’s power to grant dispensation from the law in times of emergency, for example, illustrates how a judgement concerning the existence of a state of necessity functions to legitimize the sovereign’s decision to suspend the juridical order as means to overcome the emergency. On Giorgio Agamben’s State of Exception Stephen Humphreys* Agamben, Giorgio. Each denies the possibility “of a sphere of human action that is entirely removed from law” (11). Necessity is undecidable because it although a state of exception can create the conditions for the law’s application and/or its suspension or obliteration (29). This suspension of the status of Roman citizen (i.e., ius civis) was potentially devastating for the hostis since it amounted to the radical deprivation of their legal status such that s/he could be stripped of property or life (80). Agamben hypothesizes that law that exists in this new historical epoch, is a law that lacks force and/or application23. Citation: Turning to the 13 January 27 BCE edict wherein Augustus defined himself as auctor of the highest standing and declared his intention to restore the republican constitution, Agamben explains precisely how Augustus “surpassed all in authority”. Consequently,  necessity ought to be conceptualized:  “as an ambiguous and uncertain zone in which de facto proceedings, which are themselves extra- or anti-juridical, pass over into law, and juridical norms blur with mere fact–that is, a threshold where fact and law seem to be undecidable” (29). The second treats it as an extra-juridical phenomenon and thus argues that it ought not be subject to legal regulation (10). Translated and edited by Kevin Attell. This ritualized process whereby the abstract norm is brought to bear on something that is totally external to it–i.e., the trial–is necessary since the relationship between language and reality, much like the relation between norm and application is, at root, arbitrary. Additionally, the President and his political party ultimately must answer to the electorate. The key point of interest for Agamben is that the first Roman emperor “defines the specificity of his constitutional power [...] in the vaguer terms of an authority” (81). Since the time of the Roman princeps, Agamben argues, modern scholars have fictitiously theorized authority as a characteristic which “inheres immediately in the living person of the sovereign” (83-4). Agamben, Giorgio. Agamben casts Schmitt’s theories of the state of exception and sovereignty as a response to Benjamin’s pure violence. Just as langue, the abstract system of rules and conventions signifying a sign system, only acquires denotative meaning through specific signifying practices the intelligibility of which require language, the norm can only to refer to a concrete segment of reality (i.e., “the normal situation”) through its suspension in the state of exception (36). In light of the irreducible ambiguity that such feasts dramatize, the relation between law and life, reveals itself as the primary stake in the dialectic between anomie and law (73). “The ultimate ground of the exception here is not necessity but the principle according to which ‘every law is obtained for the common well-being of men, and only for this does it have the force and reason of law; if it fails in this regard, it has no capacity to bind” (25). Turning to Fraschetti (1990),  Agamben argues that these two articulations of iustitium are connected insofar as they are situated within context of social and political uncertainty (i.e., tumult). Agamben deftly considers the historical and philosophical implications of this power, offering a brilliant consideration of ’life’ and its tense relation to normativity. In State of Exception (2005), Agamben advances three theses. However, the criterion of the between the force-of-law and pure violence, Agamben contends following Benjamin, “lies in the dissolution of the relation between violence and law” and the establishment of a new historical epoch (63). Within this dual structure that characterizes the Western juridical system, the normative element requires the anomic element for its application just as the validation and/or suspension of power is the only way in which authority can assert itself. In 2005, the leftist Italian philosopher Giorgio Agamben further secured Schmitt’s position as the accidental prophet of the post-9/11 age in his book State of Exception, which turned to the Bush administration as an example of how Schmitt’s exception would inevitably expand to swallow law whole. Consequently, any acts committed during the iustitium are “radically removed from any juridical determination26” since they are produced in a juridical void (50). It is as if the universe of law–and more generally, the sphere of human action insofar as it has to do with the law–ultimately appeared as a field of forces traversed by two conjoined and opposite tensions: one that goes from norm to anomie, and another that leads from anomie to the law and the rule. Hence, a double paradigm, which marks the field of law with an essential ambiguity: on the one hand, a normative tendency in the strict sense, which aims at crystalizing itself in a rigid system of norms whose connection to life is, however, problematic if not impossible (the perfect state of law, in which everything is regulated by norms); and, on the other hand, an anomic tendency that leads to the state of exception or the idea of the sovereign as living law, in which a force-of-law that is without norms acts as the pure inclusion of life (73). The example of revolution, Agamben claims, highlights that necessity can only be framed as an anti-juridical phenomenon when viewed in relation to the “positive law of the state against which it is directed” (Romano, 1983: 224) (Agamben, 28). His actions, in this sense, are mere facts, the appraisal of which, once the iustitium is expired, will depend on the circumstances. The state of exception is the expansion of the executive power to the point where presidential decrees have the force of law, often invoked during “states of siege” or a “state of war.” Through this expansion of executive power, the separation of powers no longer constrains the executive branch. Analyzing the legal and political theory that has given rise to the state of exception, Agamben delivers a highly detailed description of this legal concept. Unless the topic of this book deeply resonates with you, there are more important books to spend your money on. For legal scholars or those interested in the expansion of executive power, this book provides a great deal of pertinent analysis. The anomic character of this new figure of supreme power, the sovereign as living law, is evident in the eponymous neo-Pythagorean theory of the sovereign27 (basileus nomos empukhos) which finds its analogy in the modern theory of sovereignty (69). Agamben rejects the Marxist view of the state as superstructure, and does not see power as mystified. What now takes its place are civil war and revolutionary violence, that is, a human action that has shed [deposto] every relation to law” (59). Because he is a living law, the sovereign is intimately anomos (70). Writing of the Nazi State, Agamben argues that a transition has occurred, that the concentration camp system of 20 th century totalitarianism is now the product of … “Upon learning of a situation that endangered the Republic, the Senate would issue a senatus consultum ultimum [final decree of the senate] by which it called upon the consuls24 [...] and even, in extreme cases, all citizens, to take whatever measures they considered necessary for the salvation of the state” (41). Finally, Agamben points to the aporias that  arises out of the attempt to define necessity as an objective situation (29). In such contexts where the state of exception becomes the rule,  “the normative aspect of law can [...] 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). “The camp is thus the structure in which the state of exception is realized normally” (170). Rather, Agamben’s state of exception is “a zone of absolute indeterminacy between anomie and law” (57). Giorgio Agamben provides a thorough historical and legal contextualization of the state of exception, defining its critical nature and development. The key point here is to understand that Agamben regards the abstract (“universal”) norm and there sphere of its practical application as two conceptually distinct, radically unbridgeable concepts. Then we will clearly see that it is our task to bring about the real state of exception [...]” (1942). Chicago: University of Chicago, 2005. The importance of continual security has come to produce a continual state of exception in contrast to traditional declarations of war in Western democracies (14). It attempts to de-legitimize law’s reign over life by exposing its secret relation to violence (87). Focaultian Biopower In his analysis, Agamben refers to the theory of biopower put forward by social theorist Michael Foucault. Although deliverance from the state of exception in which we live to a state of law is impossible, it is possible, Agamben concludes, to reveal the central fiction of the juridico-biopolitical machine since between violence/law and life/norm no substantial articulation exists (87). Rather, it first presents Agamben’s theory of the state of exception (Chapters 1, 2 and 4) and then presents his genealogical investigation of it which traces the phenomenon from its origins in the Roman Republic through to the present day (Chapters 3, 5 and 6). Defined as the expansion of executive power in response to existential threats to the nation, the state of exception has become the norm of executive power throughout Western democracies. In this sense, the “real state of exception19”, that anomic zone where “violence without any juridical form acts” unmasks the attempt of “state power to annex anomie through the state of exception” as a “ fictio iuris par excellence, which claims to maintain the law in its very suspension as force of law. Are Proposals For A World Republic Defensible? Agamben’s second move is to highlight the aporetic character of the modern view that necessity is foundation of law which emerged after the 1789 decree of the French constituent assembly that distinguished between a “state of peace” and a “state of siege”(28). There are two primarily limitations to any utilization of the state of exception, the complexity of Western political systems and the electorate. Given the highly bureaucratic nature of any Western political system, Presidential decrees will unavoidablyreach resistance within the system. Nevertheless, on June 24, 1968, the 'great coalition' of Christian Democrats and Social Democrats passed a law for the amendment of the constitution (Gesetz zur Ergänzung des Grundgesetzes) that reintroduced the state of exception (defined as the 'state of internal necessity,' innere Notstand). The latter holds that “the sphere of law exceeds the norm” (ibid.). As Agamben puts it in State of Exception, when “the state of exception […] becomes the rule, then the juridico-political system transforms itself into a killing machine.” III. Tags: Constitutional Law • Executive Power • Roman Law, Your Source for Understanding Global Dilemmas, How Democratic is the American Constitution? As we will see in chapter 4, the relationship between law and reality characteristic of the modern Western nation-state is applied in a way that denies the existence of a reality external to its abstract empire and in this way molds and curtails what is in fact politically possible. Quite pointedly (for it touches upon post 9/11 politics), a state of exception, which is homo sacer, gives force to sovereignty: after Carl Schmitt, whose work is also analysed in his more recent work, State of Exception (2005), Agamben says that the one is sovereign who can determine the state of exception. This representation of the sovereign as living law implies that the sovereign is unbound by the law, “that in him the life of the law coincides with a total anomie” (69). This uncertainty is devastating for Schmitt’s theory since: “From Schmitt’s perspective, the functioning of the juridical order ultimately rests on an apparatus–the state of exception–whose purpose is to make the norm applicable by temporarily suspending its efficacy” (58). ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, February 2007, pp. The precise relation between law and violence within this anomic zone is precisely what is at issue in the debate between Benjamin and Schmitt. While the quality of Agamben’s legal analysis and research cannot be questioned, he neglects to analyze the state of exception from a political science lens, specifically in terms of institutions and structural limitations. What opens a passage toward justice is not the erasure of law, but its deactivation and inactivity [inoperosita]–that is, another use of the law. The foundation of this senatus consultum, Agamben contends, was a decree proclaiming an emergency situation caused by foreign war, insurrection, or civil war (i.e., tumultus) which often lead to the declaration of a suspension of law as such (i.e., iustitium) and thus produced a “juridical void”  (41-2). 1) The modern state of exception, a legal institution rooted in the democratic-revolutionary tradition, has gradually become the paradigmatic form of government in the twentieth century. In this context, auctor takes on a precise legal meaning in relation to the transfer of the res republica from his hands to those of the people and the senate. Benjamin’s description of the “baroque sovereign14”, Agamben contends, is a response to Schmitt’s theorization of sovereignty and its exclusive prerogative. However, necessity is always subjective (30). Chapter 1 “The State of Exception as a Paradigm of Government,” begins  with the observation that public law lacks an adequate theory of the state of exception (1). 3) The attempt to ensnare life, a defining characteristic of the juridico-biopolitical-machine, is bound up with a counter-movement (pure means) the objective of which is to forge the conditions of possibility for a realm of human activity that is totally external to the law. With biopolitics, human life becomes the target of the organizational and institutional power of the State (Foucault, 143). Agamben demonstrates that the state of exception has become the norm in contemporary political life. The centerpiece of Agamben’s theory of the state of exception is its assertion that the application of the norm necessarily involves an arbitrary decision. “It constitutes him as auctor of the highest standing, as he who legitimates and guarantees the whole of Roman political life” (82). 2) As an expression of a violent process through which the law, “by means of its own suspension,” attempts to ensnare life-itself within the juridical order, the institutionalization of the state of exception is biopolitically significant (3). This particular example, Agamben argues, reveals the essence of authority: it is a “power [potenza] that can at once ‘grant legitimacy’ and suspend law34” (80). Pp. Everything happens as if both law and logos needed an anomic (or alogical) zone of suspension in order to ground their reference to the world of life. As living law, the sovereign, with its “irresponsible power”, is akin to a “god among men” (69). How do governments use it? 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