State of Exception � Giorgio Agamben

TRANSLATED ThY KEVIN ATTELL

THE UN1VERSITY OF CHICAGO PRESS

Chicago and London

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Thç l1uiver�i17 of Chkago Press, Chkag<.1 60637 Tbe State of Exœptiûn as a-!)aradigm of Government
The Uni·:cnit)' of Chiu1go Press, Ltd., L011don
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14 13 12 11 10 09 08 07 06 05 l 2 J 4 5 6 A.uctoritas and Potestüs 74

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Referenœs 89
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Translator's Note

\Vherever possible, 1 have induded refürenœs to pubfühed English tn:mslatiom

of Agamben's French, German, and !talian sources in the references fü;t How*
ever, in order to maintain consistcncy in lerntinology tbrougho11t the text, and
to better ret1ect Agamben's mv::i tr;imln.tiom of thtse sources, thcpuhlished Eng�
lish versions have freqnently been modifie<l, \Vhcrcan EngHsh editfon is Hsted in
the bibliography, the first page nnmber in the text dtallon refers to the origînal�
and the second to the Engllsh edition (e.g,, [BenjarnJU 1942, 69ïl257]). Where
no English edition fa liste,.:!, the trnnslBtion is mine,
I would like to give my <leept'St thanks to Courtney Booker, David Copen�
hafcr,Samuel Gilbert, Sfrietta Slmondni, and toGiorgioAgamhen for theirgen.
erous hdp in preparing this translation,
Quare siletis jurî::tae in tmmere vestro?

[\%y are you jt1dsts sîlent about thar whkh cuncerns you?]
1 I'< The State of Exception as a Paradigm of Government

1.1 The essential contiguity between the state of exception and sov­
ereignty was established by Carl Schmitt in his book Politische Theolo­
gie (1922). Although his famous definition of the sovereign as "he who
deddes on the state of exception» has been widely commented on and
discussed) there is still no theory of the state of exception in public law,
and jurists and theorists of public law seem to regard the problem more
as a quacstio facti than as a genuine juridical problem. Not only is such
a theory deemed illegitimate by those authors who (following the an­
dent maxim according to which necessitas lcgem non habet [necessity
has no law]) affirm that the state of necessity, on which the exception
is founded, cannot have a juridical form, but it is difficult even to ar­
rive at a definition of the term given its position at the limit between
politics and law. Indeed, according to a widely held opinion, the state
of exception constitutes a "point of imbalance between public law and
political fact" (Saint-Bonnet 2001, 28) that is situated-like civil war,
insurrection and resistance-in an "arnbiguous, uncertain, borderline
fringe, at the intersection of the legal and the political" (Fontana 1999,
16). The question ofborders becomes all the more urgent: if exceptional
measures are the result of periods of political crisis and, as such, must
be understood on political and not juridico-constitutional grounds (De
Martino 1973, 320), then they find themselves in the paradoxkal position
of being juridical measures that cannot be understood in legal terms,
and the state of exception appears as the legal form of what cani:10t have
legal form. On the other hand, if the law employs the exception-that
is the suspension oflaw itself-as its original means of referring to and
encompassing lîfe, then a theory of the state of exception is the prelim­
inary condition for any definition of the relation that binds and, at the
same time, abandons the living being to law.
It is this no-man's-land between public law and political fact, and
between the juridical order and life, that the present study seeks to
 2 L1tapter One
1
' \: investigate. Oniy if the vdl covering this ambiguous zone is lifted will
we be able to approach an understanding of the stakes involved in the
differern::.e- · •Or the supposed dîfforence-betWeen the politkal and the
jurldiCa1, and belween Jaw and the living heing. And perhaps only then
wiU it be possible to answer the question that never ceases to reverberate
in the history of\Vestern poHtks: what does it mean to act potîtîcally?
1.2 One of the elements that make the state of exception so difficult
to define is certainty îts dose relationship to civil war} insurrection ) ant'Î
tesistauce, Because dvil war is the oppositè of normal conditions, ît Hes
in a zone of undeddabîlitywith respectto the state of exception, which is
state power's immedfate rcsponse to the mostext.rcme internai conflk"ts,
Thus, over �he course of the nventieth œntury, we have been able to
witness a paradoxical phcnomenon that has been effectively dcfined as
a "legal civil war" (Schnur 1983). Let us take the case of the Nazi State. No
sooner did Hitler take power { or, as we shoukl perhaps more accurately
say; no sooner was power given to him) than, on Fcbrnary 28 1 he pro­
daimed the Dt·crce for the Protection of the People and the State, whkh
suspended the articles of the Weimar Constitution conœrning personal
libertics. The decree was never repealed; so that from a juddical stand­
point the entire Third Reich can be considercd a st,1te of exception that
lasted t wdve yea.rs, In this sense, modern totalitarianism can be defined
as the establishment, by mcans of the stare of exception, of a legal 'civil
war that allows for the physical eliminatiün not only of political advcr­
saries but ofen tire categorîes of dtîzens who for some reason cannot be
integrated into the politkal system. Since then 1 the voluntary creation
of a permanent state of emergency (thongh perhaps not declared in the
technical sensc) has hecome one of the essential practices of contempo­
rary states, including so-called democratic ones.
Faced with the unstoPp-able progression of what has been caHed a
"global civil war;' the state of exception tends increasîngly to appear
as the d·ominant paradigm of governrnent in conteiriporary politics.
This transformation of a provisional and exceptional measure into a
technique of government threatens radîcall.y to alter-in fact, has al­
ready pa!pably altered-the structure and meaning of the traditional
distinction between constitutional forms. Indeed; from this perspet1'ive,
111e Statc of Except ion as a Para<ligm of Governmeut 3
tht' state of exception appears as a th reshold of indeterminacy between
democracy and ahsolutism.
� The expression "global civil war"' appcars în the same ye4r (1963) in both
Hannah Arendt's On Rrvolution and Carl Schmitt's Theory <ift}œ R1rtfrm1.�How­
1
ever, as we Will see, the distlnction between a "real state of cx:ccptioo" ( état
Je siège effectif) and a "fictitious state nf cxœption" (üat de siège fictif) goes
back to FrC'nch puhlk law thcory and was: alreadydearly ;-1rtk11lat-ed in Theodor
Reinadi's book De l'état de siège. Pmde historique et juridique (18$5), whkh is at
the origins of the Schmittian and Benjaminkm opposition between a real and
a fictitious statc of exception. Anglo-Saxon jurisprudence prcfors to speak here
of «funcied ernergency."' For their part, Nazi jurists sp-oke openly of a gewolltt:
Ausnahme:mstand, a "willed state of exccptfon;' "for the sake of estabfü:hing
the Kational Sodalist State" (Werner Spohr, quote<l in Drobische and Wieland
1993, 28).
1.3 The immediately biopolitica] signifiœnce of the state of excep­
tion as tlle original s lructure in whîch law encompasscs living beir1gs
hy means of its own suspension emerges dearly in the "mi!itary or­
dd" issued by the presi<h:nt of the United States on November 131 2001)
whlch amhodzed the "indefinitc detention" and trial by "military corn~
missionsn (not to be confused. with the miHtary tribu.nais provided for
by the law of war) of nondtîzens suspected of involvement in terrorist
activities.
The USA Patdot Act issue<l by the U.5. Senate on October 26 1 1001,
already allowed the attorney gencra.1 to 4takt• int:o custody" ,my alien
suspected of activîties that endangered "the national security of the
United States," but wlthin sevcn days the alien had to be either relcased
or charged with the violation of immigration laws or some other crimi­
nal offense. What is new about .President Bush•, order is that it radically
erases any legal status of the indîvidual. thus producing a lcgally un­
namable and unclassifiable being. Not only do the Taliban captured in
Afghanistan not enjay the status of PO\A/s as dcfined by the Geneva
Convention, they do not evcn have the status of persons charged with
a crirne according to Amerkan laws. Neither prisoners nor persons ac­
rused, but simply "det,ünecs)" they are the abject of a pure de facto ntle>
4 Chapter One
of a detention that is indefinite not only in the temporal sense but in its
very nature as welt since it is entirely removed from the law and from
judicial oversight. The only thing to which ît could possibly be compared
is the legal situation of the Jews in the Nazi Lager [camps] > whoi along
1vith thcir citizenship, had lost ever y legal identity, but at l.e ast retained
their identity as Jews. As Judith Butler has effectively shown, in the de�
tainee at Guantânamo, bare life reaches its maximum indeterminacy.
1.4 The uncertainty of the concep t is exactly matd1ed by terminolog­
ical uncertainty. The pr�sent study will use the syntagma staf:e of excep­
tion as the technical term for the consistent set of legal phenomena that
it seeks to define. This te-rm, which is common in German theory (At4S­
nahmczustand, but also Notstand, "state of necessity")� is foreigo to Ital­
ia n and French theory, which prefer to speak of ernergency decrees and
state ofsiege (p olitkal or fictitious, état de siège fict{(), In Anglo-Saxon
theory, the terms martiaflaw and emergency power; prevaiL
If, as has been suggested, terminology îs the properly poetk moment
of thought, then terminological choices can never be neutral. In this
sense, the choke of the term state tif exception implies a position ta.ken
on both the nature of the phenomenon that we seek to investigate and
the logic most suîtable for undetstanding it. Thou gh the nolions of state
of siege and martial lav;' e.x:press a connection with the state of war that
has been hïstorkally decisive and is present to this day, they neverthe­
less prove to be inadequatc to define the prnper structure of the phe­
nomenon, and they must therefore be qualified a.s political or jictitùnis,
terms that are themsdves misleading în some ways. 111e state ofe:xcep­
tJon is not a speda1 kind oflaw {]ike the law of war); rather, insofar as it
is a suspension of the juridical order itself, ît defines law;s thresho1d or
limit concept.
� The history of the term fù:titious or politirnl statc ofsiege is instructive in this
regar<L lt goes back to the French doctdnè that-in reference to Napoleün's dè­
cree of December 24, 1811··-provided for the possibility of a sfate of siege that
the emperor could dedare whcther or not a city was actuaUy W1der attack or
directly threatened by enemy forces, "wh�never circumstancés rcquirc giving
more forces and more power to the mifüary police, without it bcing neces&1ry
The State of Exception as a Paradîgm of Gm>ernmenl 5
to p ut the place.in a state of siege" (Re.inad1 1885, 109). The institution of the
state of siege bas Îis origin in the Frl."nch Conslituent Assembly's decree of July
8, 17911 whkh distinguished among état de paix, in w-hich mifüary authorïty and
dvil anthority each o,;:ts in its own sphcre; état de guerre, in which civil authority
must act in concert with military ;:rnthority; and élat de siège, in which "all the
fonctions entrusted lo lhe civil authority for" Jnaintaining order and internat
p olidng p ass lo the military commander, who exercises lhem under his exclu­
sive responsibUity" (ibid,). The decree referred only to miHtary strongholds and
ports, but wHh the law of 19 Fructidor Year 5, the Directory as::imilated m1mic­
ipalities in the interior with the strong holds and� with the law of 18 Fructidor
of the same year, grinted itself the right to put a dty in a state of siege. The
subsequenl history of the ;TI;ate of sicge is the history of lt.s graduai emancîpa­
tion from the wartime situation to whkh !t was odginally bound ln order to
be us.ed as an cxlTàordinary police measure to cope tvith interna! se<litîon and
disorder1 th.us changlng from a real, or mifüary, state nf siege to a fü=:titious, or
political one. In any c<1se, it fa important not to forget that the rnodern state of
cx,:e,,t1c>11 is a creation of the demoi:rati<>revolutionary tradition and uot the
absolutist one.
The idea of a suspension of the constltution was înrroduced for the fir;,,.ïtimc
în the constitu1ion of n Frimaire Year S, Artkle 92. of whid1 reads, "In tht: case
of arme<l revoh or disturbanct>s lhat wonld threa.ten tbe 5ecurity of the State, the
taw can, in the places and for the tîme that lt determines, ;,uspend the nlte of
the amstltution. In such cases, thü: suspens.ion cnn be provislona!ly ded_ared by
a of the goverrunenl if the legislative body is Îll recess, provided that this
body he corrvened as SûOO as pœsihle by an artide of the same decree." The ciiy
or region in question was dedared hors la ,·onstîtution. Althongh the parndigm
is, on the one hand (in the state of siege) the extension of the milîtary author­
ity's -' \'a ftime powers into the dvil sphere, and on the other a su�pension of the
constitution (or of tlw-se constilolional norms that protect individual liherties),
in tinrn the two modds end up merging inro a single juridical phenomcnon that
we call the state ofexception.
� The expression full powers (ph•it15 p01tvofrs), which is sometïmes used to char­
.acterize the stuu� ofexception, rcfcrB tn the c.xpansion of the powers of the gov�
cnJment_, and in particules the conforral on the executive of the power to issue
decrecs hnving the force oflaw. It d<:rives from the notion ofplenitwlo potc,�lntis,
which was elaborated in th:1t truc and prnper laboratory of modern publiç lcgal
6 Chapter One
!cmllnology that was canon law. TI1e prcsupposition here is that the st,ate of ex­
ception enlails a retum to an original, plemmaric state !11 whkh the distin,:,tfon
aniong the differ1."!ll pmvers (legislatîve, excrntive, etc.) has not yct becn pro~
d\lced, As we will sec, the state of t"l:ctption constîtutes rather a kenomatic state,
un emptiness of law, and the idea of an originary indisünc1ion and fuHness of
power must be considerc<l a legal mythologeme ùctalogous to the idea of a statc
ofnature (and it is nQt by chance th:H it was prcdsdy Schmitt who had recourn:
to this mytho1ogeme). in any case, the term full power$ descrfües one of Lhe
executivc power's possible modes of action du ring the slatc of exception, but it
doès not coindde with it.
t.5 Betwecn 1934 and ·1948, in the face of the collapiie of Europc's
democracies) the theory of the stak of exception (whkh had made a
first, isolated appea1;ance in 1921 with Schmitt's book Dictntorship) saw
a moment of particular fortune, but ît is significant that this occurred
in the pseudomorphic form of a debate ovcr so-called constitutionai
dictatorship.
This tenn (which German jurists had al ready used to indicate the
emergency [ecœzionalil powers that Artide 48 of the VYeimar Constitu�
tion granted the president of the Reîch [Hugo Preuss: Reith.sveifassungs­
miiftige Diktnturl ) was taken up again and developed by l'rederick M.
Watkins ("The Problem of Constitutional Dictatorship," 1940), Carl J.
Friedrkh ( Constitutional GÔvcmment and Democracy, [19,pJ 1950), and
fina1ly CHnton L. Rossiter ( Constitutional Dictatorship: Crisis Gm1ern­
ment in t11e Modern D'emocracies, 1948), Before them, \V\: m1.1 st also at
least mentîon the book by the Swedish jurist Herbert Tingstcn; Les pleins
pouvoirs, !/expansion des pouvoirs gouvernementaux pendtmt et 1:J
Grande Guerre (J934). VVhile these books are quite varicd and as a whole
more dependent on Schmitt's theory than a first reading might sug­
gesti they are nevertheless equally important because they record for the
first rime how the democratic r-egimes were transformed b'y the grad­
ua! expansion of the exeçutive's püwers·during the two world wars and,
more generally, by the state of exception that had accompanied and fol­
lowed those ,.vars. They are in some ways the heralds who announce<l
what we today have dearly bdore our eyes-namely) that since '"'the state
of exception . . , has become the rule" (Ben}aniin 1942, 697/257), it 110t
only appears increasingly as a techn[que of government rather than an
Tl1e Stnte ofEx,;.;ption as a Paradi!;,'1ll of G-Overnment 7
exœptional measure> but it also lets it:s own nature as the constitutive
paradigm of th< juddical order corne to lighl.
Tingsten's analysîs centers on an essentfal technkal prnblem that pro­
foundly marks the evolution of the modern parliamentary regimes: the
delegation contained in the ''full powers" la\�S mentione<l above, and the
resulting extension of the exccutive's powers intô the legishi.tive sphere
through the issu an ce of tkcrecs and me-asuœs. ''Hy 'full powers laws' wc
mean those laws by which an exceptiona !ly broad regulatory power is
granted to the executivei partkularly the power lo -modify or abrogate
by decree the laws in forcé" {îingsten 1934, 1.3 ). Because fav,rs of this na­
ture, which should be issued to cope with exceptional cin:.u mstances of
necessity or emergency, conf] ict with the ftmdamcntal hierarchy of law
and regula.tion in democratic constitutions and de!egt)te to the execu­
tîve [gaver-no 1 a legislàtive power that shouid rest exdusively with par­
liament) Tingsten seeks to exumine the situation thai arose in a series
of countries (France1 S;;"/ltzerland1 Belglum; the United States, England,
Italy, Austria, and Gerrnany) from the sy1;te1matic expansion of execu­
tive [governamentaliJ powers during VVürld \,Ynr One, when a state of
siege was dedared or full pnwers laws issued in many of the warring
states (and even in neutral ones, like Switzerland), The hook goes no
fürther than recording a large numher of rnse histnrü;s; nevertheless,
in the conclusion the author seems to realize that although a temporary
and controlled use of full powers is theoretkally compatible with demo­
cratîc constitutions_, "a systematic and regular e:xerdse of the institution
necessari!y leads to the 'liquidation' of democracy" (333), ln fact, the
grndual erosion of the legislative powers of parlh1ment,--,,which today
is often limited to rat.ifying measures that the executive issues thrnugh
decrees having the force ofl.Jw-has si nce then become a common prac.­
tice. From thîs perspective, World \Var One (and the years following it)
appear as a laboratoryfor testing ,ultl honing the function<il mechanisms
and apparai1ises of the state of exception as a paradigm of govemment.
One of the essentiaI characterisrks of the sta te of exœptlon--the provi­
sional abolition of the distinction among Iegislatîve, cx,:C\lttiv'e, and ju­
dicîa.1 pmvers-here shows Jts u�ndency to hecome a las1ing practice of
goven1ment.
Friedr!ch's book makes much more use than îs apparent of Schmitt's
8 Chapter One
theory of dktatorship, which is disrnissed in a footnote as ' a pru1i•
1
san tract" (Friedrich [1941] 19501 664). Schmitt's distinction betvveen
commissarial dictatorshîp and sovereign dictatorship reappears here as
an opposîtion between constitutional dktatorship> which sceks to safe­
guard the constittitionaî order, and uncon::;titutional <lktatorship, ·whkh
leads to its overthroW. The impossibihty of defining and ovCrcoming the
forces that determine the transition fr.om the first to the second form of
dktatorship (which is precisely what hap·pened} for cxample, in Ger�
many) is the fundamental aporia of Friedrich's book, as it is generally
of all theories of constitutional dktatorshîp. All such theories remain
prîsoner . i n the vîdous cîrcle in which the emergency rneasures they
seek to justify in the name of defending the democratic constitution are
the same ones that lea<l to lts ruin;
[T] here are no ultimate îristîtutional safeguards available for insur­
ing that emergency powers be used for the purpose of preserving the
Constitution. Only the people's own detcrmhrntion to se1; thern so
used can makc sure of that . . . All in all the quasi-dictatorial provi­
sions of modern constitutionaJ systems, be they martial rule 1 statc of,
siege) or constitutional emergency povlers, fail to ronform to any e:x­
acting standard of effective limitations upon a temporary concentra­
tion of powers. Consequent1y� all these systems are Hable to be trans­
formed into totalitarian schemes if conditions becorne favorable to
it. (584)
In Rossiter"s book ·these aporîas explode înto open contradktions.
lJniîke Tingsten and Friedrîch) Rossiter explkitly seeks to justify con­
stitutional dictatorship through a broad historical examination. His
hypothesis here is that becattse the democratk regime, with its oom­
plex balance of power,; is conœived to function under normal drcum­
stances, "•in tin-te of crisis a democratici constitutional government must
temporarily be altered to 1-vhatcver dcgrec is necessary to overcome the peril
and re.H ore normal conditions. TI1is alteration invariably involves gov­
ernment of a stronger character; that îs, the government wiU have more
"'
power and the people fe-i.ver rights (Rossiter 1948) 5). Rossiter i'> aware
that constitntional dictatorship (that is, the state of exception) has, in
fact, become a paradigm of government ("a well-established principle
The Srate offaception as a Parndigm of Govern.ment 9
of eonstitutional government" [ 4]) and that as such it is fraught with
dangers; ncverthelcss, it is predsely the JmmanenL neccssity of consti­
tntional dictatorship that he intends to demonstrate. But as he makes:
this attempt; he entangles himself Jn îrresnlvable contradictions. Indeed >
Schmitt's mode! (wbich he judges to be "trail-blazing, if somewhat oc•
casfonal,1' and which he seeks to correct [14] ), in which the distinction
between commissarial dictatorshîp and sovereign dictatorship .îs not
one of nature but of degree ( •.vith the decisive figure undoubtedly being
the latter) i is, not so easily overcome. Althougb Rossiter provides no
fewer than eleven criteria for distinguishing constitution.a) <lictatorship
from unconstitutional dictatorship, none of them is capable either of
defining a substantü11 d.ifference between the two or of ruling out the
passage from one to the other. The fact is that the two essential crite­
ria of absolute necessity and temporndness (whkh all the others corne
clown to in the last analysls) contradkt what Rossiter knows perfectly
welt that is, that the state of exception has: hy now become the rule:
"In the Atomic Age upon which the world is now entering, the use of
constitutional emérgency powèrS nrny wdl becom-e the rule and not the
exception" (297); or as he says evèn more dearly at th11: end of the bl1ok,
"In describing the emergency powers of the western dcmocrades > this
book may have given the impression that such techniques of govern­
rnent as executive dictaiürshîp., the ddegation of lcgisfotive power) and
lawmaking by administrative degrce were purely transitory and tempo­
rary in natnre. Such an impression wou1d be distïnctly misleading, . ,
The instruments of government depicted here as temporary 'crisis' ar­
rangements have in some countries. and mayeventual1y in all countdes,
become lasting peacetime institutions1) (313), 'fhis prediction, whiçh
came eight years after- Benjamin's first formulation in the cighth the­
sis on the concept of hisr.ory, was undoubtedly accurate; but the words
that condude the book sound even more grotes(Jue: "No sacrifice is too
great fo� our democrncy) least of an the temporary saaifice of democ­
racy itself)l (314),
1.6 An examination ofhow the state of exception ts situated in the lega)
tra<litions ofthe Western states reveals a division�dear in prindple1 but
hazier in fact-between orders that rcgulate the state of exception in the
 10 Cbupter One
test of the rnnstitution or by a law and those that prefer not to regulate
the problem explicitly. To the first group belong Franœ (where the mod­
ern state of exception was born in the time of the Revolutîon) and Ger�
manr; to the second beloog ltaly, Switzerland, Englllnd, and the United
States. Schoforshîp ii; also correspondingly dîvidcd between writers who
fuvor a constitutional or legisfativé provisjon for the state of exception
and others (Carl Schmitt foremnst among them) who unrescrvedly crit­
idze the pretense of regula1ing by law what b)' definition cannot be put
in norms l normato J. Though on the Jevel of the formai constitution
the distinction is undoubtedly important (Însofar as it presupposes 1 in
the latter case, that acts perfonned hy the govetnment outside of or in
conflict with the Jaw can theoretically be considercd îllegcll and must
therefore be rectifie<l by a spccial "bill of indemnity"), on the level of
the ma terial constitution somcthing like a state of exception ex:ists in
un the above-mentioned orders, and the history of the instîtution1 at
least since World War One, shows that ils development is independent
of its constitutional or legislative fi:.}rrtH-i.liZ-ation. Thus, Jn the Weimar
Republic (where Article 48 of the constitution regolated the powers of
the presîdent of the Reich whenever the "public security and order" [die
ofjèntlid,e Sicherheit tmd Ordmmg] were threatened), the state of excep­
tion performc-d a surely more dedsîve fuw:tion than in Italy, where the
institution was not explîdt]y provided for> or in Frânte, whkh rcgulated
it by a law and whkh also frequently had recourse to the ét,1t de siège an<l
legislation by decrc�.
1.7 The problem of the state of exœption presents dear analogies to
that of the right of resü,tance. It has been much debated, particularly
du ring constituent asSemblies, whether the right of resistance should be
induded in the text of the constitution. The dtaft of the current ltal­
ian Constitution induded ·an article that read, "When the public pow­
ers violat.: the rights and fundamental libertics guaranteed by the Con­
stitution; resjstance to .oppressîon is a right and a duty of the citizen,"
This proposa!, which followed a suggestion by Giuseppe Dossetti1 one
of the rnost prestigious of the leading Catholic figures, met with sharp
opposition. Over the course of the debate the 01;inion that it was im­
possible to Jegally regulatc soincthing that_, by Jts nature, was removed
The Statt> of EX:'t>p(ion ,is a Panidigtn o( Govermncnt n
from the sphere of positi ve law prevailed, and the ariicle was not ap­
proved. Howevcr, in the Constitution of the German Federal Republic
there is an article tArticlc 20 j that unequivocall y legalizes the right of re­
slstan-éè, stating that "against anyone who attempts to abolish t.hat order
1 the democratic constitutîonJ, ail Germ ans have a right of resistance1 if
no other remedies are possible."
The opposing arguments herc are exactly symrnetrical to the ones
that dîvide advocates of legalizing the stale of exception in the text of
the constitution or a sped_al law and those jurists who believç its nor ­
mative regulation to be entirely inappropriate, Tt is certain, in a.ny case,
that if resistanœ were tù become a right or even a dt1ty (the omission
of which coukl be punished), not only would the constitutjon end up
positing itsdf as an ab-solu tiely untouchab]e and aU-encompassing value,
but the citizens' politkal chokes wouJd also end up being deterrnined
byjuridical norms f giuridicamcntc nornum: l, The fact is that in both the
right of resistance an<l th� statc of exception, what fa ultimately at issue
is the question of the juridical significance of a sphere of action that is
in itself extrajuridkal. 1\vo theses are at odds here: One asserts that Jaw
must coind<le with the norm, and the other holds that the sphere of
law exceed5 the norm. But in the last analysis, the tvvo positions agree
in ruling out the existence of a sphere of human actlûn that is entirely
œm oved from law.
N A BRIEfl HiS'f ORY OP THE $TATE OF EXCEPT10N, We have already seen
howthe statc ofs\egc had itJJ origin in France dnring the lkvolution, After being
esfablished with the Constituent Assembly's <lecree of )uly 8, 1791, it ;tçquired
lts proper physîognomy as état de siège fictif or état de siège politique vvith the
Directorial law of August 27, 1797, and, finally, with Nllpolcon's dc(ree of De-~
cember 24, 1811.. The ides of a suspension of the constituti(:>n (of the "rule of
the constitution") had imtead been introdoced, as we have als.o sec-n, by the
Constitution of 22 Frimaire Ycar 8, Article 14 of the Charte of 1814 gr:antcd the
sovereign the power to "make the, regufatiünS ;md ordirwnces neœssary for the
execution of the laws and the s.ecurity of the Stale"; because of the vagueness
of the formula, Chateaubriand ob:,crved '-'thar h l� possible tbat one fine morn­
ing the whole Charte \v·ill be forfeiteJ for the benl:'fit of Artidf, 14}' The state
of siege -was expressly mcntio11ed in the Acte arlrlitii:mr! tü the- Const!tntion of
April 22, 1815, which stateJ that it coul<l only be dedared with a law. Sinœ then,
u Chapter One
moments of constitutional crisis in France over the course of the nineteenth 0
and twentieth centuries have been marked by legislatîon on the state of siege.
Afti:r the fol1 of the July Momm;hy, a decree Ù}' the Constituent ;\s.sembly on
hme 24, 11',.j.8, put Paris in a state of siegc and assigned Gem:nü Cavaignac the
task of reRloring order in tbe city. Consequently, an article ;.vas induded in the
ncw constitution of N0vemher 4, 1848, establishing that the occasîons, forms,
and effects of the state of ;,iege wou!d be firmly set·hy a law, From this moment
oui the dominant prindple in the French tradition (rhough_, as we wi!l see, not
without fxceptlnns) has been that the power to suspend the laws can bdong
only to the same power ùrnt produces them, that is, parliament (in contrast to
the German trt1dition, whkh eO.trusted this power to the head of state). The law
of August 9, t849 (whkh was partially restricted latex by the law of April 3, 1878),
consequently established that a polltical state of sicge could be dedared by par­
liament (or, additionally, by the bead of state) in the case of imminent danger
to ex!ernal or interna! sernrity. Napoleon HI had recourse several times to this
law ahd, once installed_ in power; he transferred, :in the constJtu.tînn of January
1851., the exclusive power to proclaim a state of siege to the head of state:, The
Frnnco�Prnssîan War and the insurrection of the Commune coindded with an
unpreœdented gencralizat!on of the s.tate of exception, which was proclaimed in
forty dcpartrnents. and lasted in some of them until 1876. On the 'basis of these
expericnccs, and after Maç\1,ihon's faHed coup d'êtat in May i&n, the law of
1849 was modified to establis.h that a state of siege coutd be dedared only with
a faw (or1 if the Chamb,n of Deputïes was not in s�ssion, by the head of state,
who was then ohlîgated to convene parliament within two days) in the event of
"imminent danger :resultîng from foreign war or anned instrrrectiod' (law of
April 3, 1878, Art. 1),
Wmkl \Var One _coindded wiïh -a permanent sta �c of exception in the marn
jority of the, mrring countries. On August 2, 1914, President Poincaré issue-d a
decree that put 1he entire .;ountry in a state of siege, and thîs decree v/as wn­
verled înto faw by padiament two days later. The state ofsiege ténlàÏned Jnforœ
until Oetober 12, 1919. Although the activity ofparHament, whkh was suspended
during the füst six months of thç war, reoommern:.·.ed·in January 1915, many of
the laws pa:sscd were, Jn truth. pure and .simple delegations of legislat!ve power
to the executivç, such as the law of February 10, 191,'l, which granted the govern�
ment an a11 but absolute power to regulate hy decree the production and trade
of fo-odstuffi. As Tingste11 has ohserved; in this way the exewtive power was
transforrned into a legisla.tive orga.n in the material sense of the term '(Tingsten
The State of Exception as a Paradigm ùf Govern1ru-mt 13
1934, 18). ln any case, Ît ·was dnring this pcriod that exceptional lcgisintion by
executive [governa:tivoJ decree (which. is now perfectly familiar to us) became a
rcgular pr-actice in the European dcmocracies.
Predictab!y, the expansion ofthe executive's powers into- the legislarive sphere
continued after the end of hostilities, and it is significant 1hat military erner�
gency now ceded its place to economîc emergency (with an implicit assirnÜ<l­
tion betwecn war and economics), In January 1924, at a time of serious crisfa
that threatened the stability of the fnmc, the Poinct1 ré govem::ncnt asked for
füU powers over fin andal matters. Aftcr a hitter dc-bate, in whkh the opposition
p-ointed out that tbis ,...,as tantamount to parliament renmmdng its O\VU crm�
stitutiona! powers, the law -i,\'as passed on March 22, 1;vith a four-month lirnit
on the governme.nfs spedal pmvers. Analogous mea�mes were brought to a
vote in 1935 by the Laval government, which issuecl more than five hun<lred
decrees "'liaving force of law'' in order to avoid the devaiuation of the franc.
The opposition from the left, led by Léon Blum, strongly opposed this '�fasdst"
practice, but it is significant that once the Lcft: took power with the l'opu!ar
Pront, it as.kcd parliament in June 1937 for full powcrs in order tù dçval>Jt the
franc, establish ex.change contrnl, and impose new taxes, As has been obscrved
(Ros.siter 1948, 123), this rneant that the new pracüce of legislation by executive
[gi::rvernativo] deçree1 which had been inaugur,ned during the wat, was by now a
practiceacœpted by aU politkal sides, On June 30, 1937, the powers that had been
denied Blum were granted to the Chautemps govemment, in v:hich sev-eral key
minist1·\es were entrnsterl to nonsncfalists, And on April 10, 1938, Êdotwrd Dal­
adier req11<-Sted and obtained from parlîament exœptiornü powers to legislate by
decree in order to rnpe v;ith both the lhrcat of Nazi Germany and the economic
crisis, It can the:refore be said that until the end of the Third Republic "the
normal procedures of parliamentary democracy were in a statc of suspension"
(124;. Vv11en wc study the birth of the so~çalled dictatori;:il regimes in Ital.y and
Gcrrnany, it is important not to forget this concurrent process that transformed
the democratic constitotlom bctween the two workl wars. Under the pressure
of the paradigm of the state of exception, the entire poîitico•-constitution.al Hfe
of Western sockties bcgan gradually to dssume a new form, wh_ich has perhaps
only today reached its fun deve.lopment. In December 1939, after the outbrcak
of the war, the D.1ladier govcrnment obtained the i:iower to take by dccrt·e al!
mcasures necessary to ensure the defense of the nation. Parlîame:nt remained
ln session (except whcn it was smpended for a month ln order to deptivc the
comm,mit>1 padiamentnrians of their Immnnity), but all lcgislative activîly lay
14 \.Jiapter One
firmly-in the hands of the exewtivé. By the timeJ,,farsho1 Pétain nssume<l power,
tlle French parliamcnt was a shadow of itsdf. Nevertheless, the Omstitutional
Ai.:t ofJulyn, 1940, grnntcd the head ofstate the powerto pnxlaim a state of sîcge
throughoul the entire national tcrrltory { which by then was partially occupied
by the German arrny),
In the present constitution, the state of eueption is regulat,ed by Article 16,
whkh De Gaulle had propose<l, The artide estabfühcs that the pr..�stdent of the
Repuhlic may take al[ nece.�sary 1�ea,,;;ures "whçn the institutions' of the Republk1
the JndependeiKe of the Nation, the intcgrity of i1s terri tory, or the execution
ofhs intcn;ational commitmcnts are seriously and imri1cdiate1)' threatened and
the regular functioning of the constit!1tiomil puhlÎC powers is interrupted.''. rn
April 1961, durîng the Aigerlan crisis, De Gaulle had œcourse to Article 16 even
though the functioning of the public powers had not been interrupted. Since
thaï tîme, Artlde 16 bas never again been invoked, but, in conformîty wîth a
continuing tendency în all of the Western democracies, the dedaration of the
st:1te oft'xception has gr;cidually heen replaœd by an unprecedented gcneraliza�
tion of the parndigm of security as the normal technique of government
The history of Article 4-8 of the \Vdmar Constitution is sn tîghrly woven into
the history of Germany between the wars that it is lmpossible to un.:krstand
Hit1er's risc to pmvà wîthout füs.t analyzing the uses and abuses of this artiJe
in the ye.ars bct,veen 19i9 and 193�, Jts lllirnediate prccedent wa;, Artide 68 ofthe
Bisman:ki;;.n Constitution, which, in cases where "public was threat�
ene<l in the territory of the Reich," granted the cmperor the power lü dedare
a part of the Reich to be in a state of war (Krirgs::ustaiuf), whose .:onditÎons
and limitations foHowed those set forth in the Prms-î:::m law ofJune 4, 1851. con­
cerning the state of sîege. Amid the disorder and rîotin.g that followed the end
of the war, tl1e dcp\lües of the National Assembly that •Nas to vote on the 1:.ew
constilu! ion (assisted by jurist� among whùm the name of Hugo Prcuss stands
out) indnded 1.n artîde thargranied the president of the Reich extrcmely hroad
ernergency i ecœz-io11,1liJ powers. The tcrt of Article 48 reads, ''rf security and
publk onler arc seflous!y [erhebliâ,] disturbed or threaten!!d in the German
Rekh, the pr<::siJent of the .Rcich ma.y take the measmcs neœssaryto reestablish
security and pt1h1ic order, with the help of the armcd forces if required. 1b this
end he may whoHy or _partially suspénd the fondamental rights [ Grundrechtej
establi5hed in Articles 114, 115, 117, 118) u3, 124, and 153," The article added that
a law would spedfy in detail the conditions and limitations under which this:
presidentiul powcr was to be exercîsed. Sinœ that Jawwas never passcd, the presM
The State of Exception as a Paradigm of \:,-0vernment 15
ident's emcrge!'lcy f ccœzi,maiil powers rernained so indcterminate that not only
did theotlsts regularly use the phrase "presi<lenti-al dictatorship'' in reference to
Article 48, but in 1925 Schmitt could wrîte that "no constitution on earth had so
eas!!y legaJized a coup d'éiat as did the Weimar Constitution" (Sçhmitt 1995, 25).
Save for a relative pause b<:tween 1925 and 1.929, the gnvernments of the Re:
public, �eglnning with Brüning's, mnde continuai use of Article 48, prodaiming
a state of exception and bsuing emergcncy decn�es on more than two hundred
and fiftyoccasions; among other thîngs, 1hey cmployed it to imprison thomands
of communist :militants and to set up special tribuna!s authorized to pronounœ
capital sentences. On severa! üccasions, particularly in October1913, the govern­
ment had recourse to Article 48 to (ope wlth the faB of the mark, thus confirm­
ing the modern tende11cy to conflate pofüîco-mfütary and eamomic crJSes.
It is well known lhat the t,st years ofthe Weimar Repnbîkpassed ent.irdy un­
der a regime of the state of exception; it is lcss ohvim1s lo note that Hitler could
prohably not l1avefaken power had the country not heen under a regime of pres­
idential dictatorship for nearly three years and had parliamcnt been functîon­
ing. In Jnly 1930, the Brüning governmellt was put in the minoriîy, but Brünîng
did not resign. Insteàd, President Hindenhurg grnnted him rccourse to Article
4& and dissolved the Rcichstag. Fro.n thnt rnoment on, Germany in fa.et œa-sed
than twelve months in al!, while a flnctuating coafüfon of Soda} Dernücrats and
cenhisîs stood by and watchcd a govemmcnt that by then amwered only to the
prcsident of the Reich. In 1932, Hindenburg-rerleded prcsî.dent over Hitler
and Thiilmanr.-fon:ed Brüning to rcsign and namcd the centrist vt.m Papen to
bis post. On June 4, the Reichstag \vas dlssolved and never reconvcned until the
advent ofNaûsm, On July 20, a stateof exception was prodaimed in the Pfussian
territory, .and von Papen was named Reich Commissioner for Prussia-ousting
Otto Braun's Social Democratic governmcnt.
The state of exception in which Germany found itselfduring the Hindenburg
presidencywas justi:fied hy Schmitt on a co11stit11tion,1l le-vd by the idea that the
president acted as the "guardian of the constitution" (Schmitt 1931); but the end
of the \Ale-imar Republic clea riy d<:mons:trates that, on the contrary, a "protected
democracy" is not a democracy at aB, and that the paradîgm of constitutional
dictatorship fonctions Ühteàd as a tt,.msitional phase that leads inevitably to the
estabHshmcnt of a tota\itarian regime.
Given these precedents, it 1$ understandablc thatthe constitution of the Fed­
eral Republic did not men.tion the stilte ot ex,:er,tw,n. Neverthcless, on Jlîne 24�
1968, tbe "grand coalition" of Chrisfüm Democrats and Sodnl Dcmocrnts passed
 16 Chaptcr One
à faw for the ami-"nd111ent of the con'ithiltion (Gesetz zur frgd11zungdes Grundge�
setzes} that reintrodu,.:ed the state 1.1f exceplfon (defined as the "state ofintcrnal
necessity;' irmere Notswnd). However� wlth an unintende<l iro.ny, for the first
timc in the history of the institution, th.;, proclamation of the state of exception
waS- prnvided for not slmply to safeguard public order and secmity, but to de­
fend the "lfüeral-dernocraiic constitution." By this point, protected democracy
had become the ruJe.
01i August 31 1•;)I4, the Swiss fcderal Assernhly gnmte<l the Federal Co un-cil "the
unlimjte<l power to take al! measnres necessary to gu.a r;1ntee the securîty, ln�
tegrity, and neutràlity of Switzerland,"' This unusual act-by virtue of which a
non--warring state granted powers to the executive that were even vaster and
vaguer than those receivcd by the governments of countries directly involved in
the war--is of interest because of the dehates it provokcd both in the assem­
bly itself-and in_îhe Swi.;;s Fedt:ral Court when the dtizens objected that the act
was unconstitutionaL The tenacity with whkh on this occasion the Swiss jurists
(nearly thirty years ahead of lhe theorists of ,;';(,nstitutional-dictatorsh!p) sought
(like Waldkirch and Burckhardt) to derive lhe legitimacy of the state of e:xœp�
tion from the. text of the constihJtion itself (specifically, Article 2, which read,
"the ain) of the Confoderation is to ensure the independenœ of the fatherland
agaînst the foreigner [ and] to maintain interna! tranqulfüy and order"'), or {!ike
Hoern i 3nd Fldner) to grmmd the state of exception in a faiv- of necess.îty "inher­
ent in the very existi:nce of the State," or (like His) in a Juridkaî lacuna that the
exceptionaJ provisions mm,t fil 1, shov,m that the theory of the state of exception
is by no means -ihc cxdus.ive legacy of the antidernocratk tradition.
In Italy the hîstory and fogal situation of the state of exception are of particular
interest with regard to legislatlon hy emcrgency execmive [gors:rnat-i 1·-i] decrees
(the so-called îaw-dccrees). Indeed, from thl'l vicwpnfot one <::0uld say th.at Italy
functioned as a trne and prnper juridioo�polîtkal laborarory for organîzing the
proœss ('whkh was aho -Occnrring to diffcdng dcgrces in otbcr European states)
by which the h1.v,r- <lecrœ ''changed from a dcrngatory and exccptional instru­
ment fo-r nonnative production to an ordinary source for the production of
law" (Fresa 1981, 156), But this also means that one of the esscntial paradigms
tbrough which democraqis transformed from par\iàmentaryto exeçntive [gov~
ernmnentale] was·clabornted precisE'ly by a state whose governments were often
unstable. In ariy case, it is in this conte:xt that the emergency decrec's pertinence
to the problcmatic sph;;:re of the statc of exception wmes dearly into vîew. The
The State of F:xreption as a Paradigm of Gtwemment 17
Alhertine Sfatute (like the cmrent RepubJican Constitution) made no mention
of the state ofexception. Neverthek:!ls, the governments of 1he kingdmn resùrtcd
to prodniminga state of sîege ma!1y times: in Pa!crmo and the Skilian provim·es
in 1862 and 1866, in Naple,; .in 1862, in Skily and LunigiMn in 1894, and in Naples
and Mfüin io 1$9-8, where the repression of the disturbances wa:s p:articula.rly
bloody and rrovoked bitter debates in parliament. The declaration of a state
on the occaRion of the carthqnakc of Mes:<lin:i and Reggio Calabria on
December 28, 1908 ls only apparently a different situation, Not only was the
statc of si-cgc 1,.1 ltimntcly prodaimed for reasons of publk order-that is, to sup··
press the robberics and looting prn-..:okC'd by thc disastcr-but from a theoretica]
5tandpoint, it is also sîgnificant that these ac.ts furnished the occasion that al­
lowed S:-mti Rom;rno and other Italbn judsts to da.borate the thesis { whkh we
examine in s-mnc det�dl bter) th.-1 t neœ�sity- ls the primary sourœ oflaw.
In each of thcse cases, the state of siege was. prnd;iimed by a royT1l denee
that, whfü, not requiring parliamentary rntification, was-ncYertheless ahvnys ap­
proycd by parliament, <'!S were other emergency decrees oot rl:'lated to the state
ofsiegc (:n 1923 and 1924 sevcral thousand outst1indi11g faw-dccn:es fosued in the
prccedlng yenrs were t.hns converted into Law). ln 1926 the Fascist regime had a
faw issued that e:xpressly regufated the matter of the law�decrees. Article 3 of
this lnw cst:iblished that, upon deHberntion of the cmmdl of ministcrs1 1'norms
having forœ of iaw'' could be isst1ed by royal decree "(1) whcn the government
is delee'"°ted to <lo so by a lm-v w�thin the Jimits of the ddega tion, and (2) in e:x­
traon:Hnary situations, in whkh it is required for reasnns of urgent and absolok
The judgment conœrning nece:.sjty and urge1K-y is not subject to any
oversight other than parliamcnt's political oversight.'' The decrecs providcd for
in the second dause hnd to be presented to parlîament for conversion into law;
but parliament's tütal los5 of autonomy during the Fascist regime rendered this
condition superfluous.
Although the Fascist governments" abuse of emergcncy decrces was so great
tllilt in 193-9 the regime itself feh -it nccessary to limil theït n:-arh, Artide 77 of
the Repuhlican Constitution established vvith singular contimüty that '1 in ex­
traordfnary situations of necessity and emergency" the government wuld adop-t
"provisional measures baving forœ oflaw,"' ,,vhich had to be prr:sented the stlme
dey ro parliament and ,,.;hich wcnt out of effect if not conYcrted into law within
sixtr days oftheir issuance.
It is wdl known that since then the practice of executJve fgon•t114mmfnlr}
legislation by la:w-decrees has beoome the rule in It:ily, Not only have emergcncy
18 Chapt.cr One
decrees been issued in moments of politkal crisis, thus circumventing the con�
stitntional pdndple that the rights of the dtizens ca11 be limited only by law
(seè,_ for example, the deçrces issued for the repressîon of lcrrorisrn: the law�
decree of March 28, 1978, 11. .59, converted into the law of May 21 l978, 11. 191
[tbe so-called Moro LawL and the law-decree of December 15, 1979, 11, 625, con­
verted into the law ofFebnwry 6, 1980, 11, 15), but law,,decrees now constitute
the nomial form of legisL1tion to such a that they have bcrn described
as "bills strengtbene<l by guarantecd t:mcrgency" (Fn:sa 1981, 152). Thîs me.ans
that the dernocratk principle of the separntion of powers has today collapsed
and that the executive power has in fu.:t, at least partially, absorbed the legisl.a­
tive power. ParHament is no longer the sovcrcign legislative body that holds the
exclusive power to bind tl1e citîzcns by meaî1s of the law: it is limited to ratify­
ing the decre<:s issued by the e:xecutive power. ln a technical sense, the Itafüm
Republic is no longer parliamemary, hut exeo.ttivc' [govcrnamcnta1ej . And it is
significant t:hat though thi,; tramformatîon of the constitutional order (which is
today underway to l'"'t\ ,,c,;œ,c, in aU the Western democrades) is perfectly
well known to jnrists and politidans, it bas remained eutirely mmofü:ed hy the
citize-ns. At the very moment whcn it would like lo give 1essons in democracy
to diffèrent traditions and cultures, the politicnl rnhure of the West does not
teal ize lhat lt ha� enttl'el'f lost its canon,
Th e o:nly legal apparatus in Englami that is comparable to lhe French état de
siège goes. by the tertn martial lawi but 1.his concept is so vague that ît has bcen
rîghtly described as an "unlucky name for the justificallon by the rnmmon law
of acts clone by necessity for the defcnce of the Commonwealth when the-te
is war within the realm" (Rossiter 19481 142). This) however, does not mean
that something like a state of exception could not ex:ist. In the Mutiny .Acts;
tbe Crown's power to decfarc martial law was generally confined 1o times of
war; nevertheless, it necessarily entailcd sometimes seri.ous conscqucnces for
ihe civilia.m who found thcmselves factua!Jy involved in the àrmed repression.
Thus SCTlmitt mµght to dislinguish martial law from the military tribunals and
summaiy proccedîngs that at flrst applled only to soldîers, in order to conœive
of if as a purely foctual prn.:eeding and draw it closer to the state of exception:
""Despitç the namc it bcars, martial law fa heithcr a right nor a Law in this si;�nse,
but rather a procceding guided eBscntially by the necessity t>fachleving a certain
end" (Schmitt 1921, 172),
\Vorld War One playtrl a dccisive mle in the generalizatîon of exceptlonal
The State of Exception a:. a l"aradigm of Government 19
executive [governmneatali] apparatuse,� in England <1s welL [ndeed, immedîately
after tvar was dedared, the government asked pàrliàment to approve a series of
ernergencr measures thnt had beeu prepared by the 1·e!ewmt ministers, and they
w1?rc passe.cl virtually without discu:>Sion. The most imponant of these acts was
the Defon.ce of the RealmAct of August 4) 1914, known Js DORA, whid1 not only
,
granled the gnvernment quite vast powers 10 rcg11laœ the wartime cconomy) but
also provided for scrious limitations on the fondamental rights of the citizcns
Un particufar, granting military tribunal;; jarisdiction over dvilians). The ac tîv­
ity of parliament saw a ûgnificant ec!ipse for the en tire duration of the war, just
as in France. And in England too this process went bcyond the emergency of
the war,_ as js shown by the approval•···-on October 29, 1920, in à time of stdkes
and social tensions-of the Emergency Powers Act. Jndeed, Article 1 of the act
stated that
[i)f at any tllllc it ap pears to His Maj�sty that any action ha:,; been taken or is
i,mmediately threatened by any persons or body of pcrsons of such a nature
and on so extensive fi scale as to be cakulated, by interfering ,vith the supply
and distribntion of food, water, fuel, or Hght, or ,vith the me.ms of Joçomo­
tfon, to deprive !hc wmmunîty, or any substantial ;:mrtion of the commu­
nily, of the essentials of life1 His Majesty may, by pr? damation (_hereinafter
referred to as a proclamation ofemerge;1cy}, decfare that a state ofemergency
cxists,
Artidc 2 of the law gave His Majesty in Cu und] the powe'r to hsue regulations
ant.1 to grant the exccutive the ""·"'"""' ,m <l dutfos , . , necessary for the preser­
vation of the peace:' and it introduœd specialcourts ("courts of summary juris�
diction") for offendcrs. Even though the penalties imposed by these courls cou!d
not excecd th_re.c months in j.iil {''with orwithont hard labor*), the prindple of
the state of excep1ion had bcen Hrmly introduced into English law.
The p lacc-both logical and pragmJtic�--of a thcory of the statc of exception in
the Amcrican constitution is in the dia!ectic betwecn the powers of theprcsidcnr
and those of Congrcss. This dialectic haidaken s.hape hiswricaîly (and in an
exemplar y way already beginning with the Civil Wa.r) as a confüct over supreme
,mthodty in an emcrgcncy situation; or, in Schrrüttiàn terms {and this is smdy
significant in a country considen�d to he the cradte of democracy), as a confiict
over sovercign dedsion.
20 Chapter One
'fhe te:xtual basis of the confüct lies 6rst of ail in Artide 1 of the constitution,
whîch establishes that "[t]he Privilege of the Wrît of Habeas. Corpus shaH not
be ;,uspen<led, w1less when in Cases of RebelUon or hwàsion the publk S,:1fety
may require it'' but does not specîfy whkh authority has the jurisdiction to de­
cide on the suspension (even though prevailing opinion and the context of the
passagè itselflead one to assume that the clause is directed at Congress and not
the president). The second point of confücl lies jn the relatfon between another
passage of Artîcle 1 (whi.,:h dedarcs 1hat: the power to rleclare war and to raise
and support the army and navy rests wilh C..:ongress) and Article 2, whkh states
that " \ tJhe President shail be Con1m<1nder in Chief of the Army and Navy of the
United States,"
Both of these problems reach their critical threshotd with the Civil War
(1861'71865.), Acting counter lo the text of Article 1, on April 15 1 1861, Lincoln de­
creed thut an anny of sevcnty-five thousand men was to be rnised and eo,wened
a spcdal session of C01_1gress for July 4. In the- ten wecks that passed between
April 15 and Jn!y 41 Jfocoln in fact acted as an abso!ute di<tator (for this reason,
in his book Dictator�hip, Schmitt can rc-fcr to it as a perfect example nf com­
mJssarial dictatorshlp: sec 1921; i36). On Aprll 27j wlth a tedmically evcn more
sigt1ificant dccision, hc authodzed the General in Chief o( the Army to sus­
pend the writ of habeas corpos whenever hc deemed it necessary along military
lin es between \-\fashington and Phlladclphia, wbere there had been disturbanœs.
Purthennore, the pn:sident's autmiorny in decidingon extnordinary measuœs
continued even after Coogress was. co-nvened (thus� on Feb.rnary 14, 18621 Lin­
coln impnsed œns0rship of the mail and auihorized the a:rrest and <letention in
mifüary prisons of persons suspected of "dîsloyal a.ad treasoùahle practkes").
In the .speech he deïivcred to Congress 1vhm it was finally convened on July
4, the prcsident openly justified hl.$ actions as the ho!der of a snprcme power to
vfolatc tbc rnm;titntîon in a situatkn1 ofnecessity, "Whether strictly legal or not;"
hcdedared, the mea.rnrcs he had adopted had becn taken "un<ler what appeared
to be a popular demand and· a public neœssity" in the ccrtainty that Congrcss
would ratify tbem. They wcre based on the conviction t:hat e1<en fundamental
law could be violated if the very existence of the union and the Juridical order
were at stake ("Are all the laws but one to go unc·xecutcd, and the Government
itself go to pieces lest that one be violated?" See Rossiter 1948, 229),
. It js obvious that in a \.vartimc situation the conflkt between the president
and Congress is essentfally theoretkal Thé fact is that allhough Co-ngress was
pcrfectly aware that the constitutionaf jurisdictions had been transgressed, lt
The State of Exception a,s a Paradigm of Government n
could do nothing but ratify the actions of the pre-sident, as it di<l on August 6,
18fü. Strcngthened by this approval, on September 22, 1862, the pres.ident pro­
daîmed th-c emancipation ofthe sîaves on Jlis authority alone and1 two days !.ner,
generaHztd the state of exception th rm.1ghout the cntire terrHory of the United
States, authorizing th.i a.rre&t and trial before courts martial of "a11 Rebds and
Insurgents, their alders and abettors within the United States, and all pcrson�
discouraging vohmteer enlistments, re�fating militia drafts, or guilty of any dis-,
loyal practice, affording aid and corn.fort to Rebels against the authorîty of the
United States.'' By thls point, the president of ù1e United States was the holder
of the sovereign decision on the state of exception.
According to Amerkan histùt'ians, during World \,Yar One President WoodM
row\Vilson personally m:snmed even broaderpowers than those Abraham Lin­
coln had daimed. Il is, however, neœssary to spedfy that instead of ignoring
Congress, as Lincoln had done, Wilson preferre<l ea,;,h time to have the powers
in question delegated to him by Congress. In thfa regard, hls prnctice of gov­
emment is doser to the one that would prevait in Europe in the same years, or
to the i:urrent one, which instead of dedaring the state of exception prefers to
have exccptional laws issued. ln any case) from 1917 to 1918, Congress npproved
a scrïes of a<ts (fi:Üm the Espîonage Art of June 1917 to the Ovennan Act of May
1918) that granted the presklent compkte co11trol over the admînistrntion of the
country and not only prohfüited dîsloyal activities (:mrh as collaboration with
the enemy and the diffusiùn of false reports), but even fnade h a crime to ''wifl­
fully uUer, print, write, or puhlish any disloyal, profane, <;currilous� or abusive
language about the form of govcrnment of the United States:;
Becanse the sovereign power of the president is essentfally grounded in the
emergency linked to a state of Wdf, over the course of the nventîeth cenrury the
metaphor of war bccomes an integral part of the prcsidcntîal politica1 voçabu­
lary whenever dedsJœ)s çonsidered to be ofvital importance are heing imposed,
Thus, in 1933, Frankiin D. Roosevelt was able to assume exlraordinary power0
to cope wilh the Great Deptession hy presenting his actions i.l:S those of a com­
mander during a military campaigrt:
1 assume unhesitatingly the leadership of this great army of our people <ledi­
cated to a disdplincd attack upon our common problems, . . . I am prepare-d
un<ler my constitutional d-nty to recommcnd the measures that a stricken
Nation in the midst of a sttkken world ma.y f<'/4lt1ire. . . . But in the event
that the Congress shall fait to take �the ncœssary measuresj and in the event
 n ChaptcrOne
that the national emergcncy is still critical, I shall not cvadc the cl.car course
of duty that \Vill then confront me. I shall ask the Congress for the one re­
maining instrument to meet the crisi�broad Executive pmver tu wage war
against the cmergency, as great as the power that w · ould be givcn to me if we
were in .fuçt invaded hy a foreign foc, (I�oosevdt 1938, 14--1 5)
It is wdl not to forget that, from the comtitutional standpoint, the New Deal
was realized by <ldegating to the president (throngh a serles of statntes culmi­
nating in the National Recovery Att of June 16, 1933) an unlimited power io
regulate and rnntrol cvery aspect of the cconomk Hfe of the country-a fact
that is in perfect ccmformfty wtth the already mentioncd parnlldism between
milîtary and emnomic emergcndes that charactedzes the poiitics of Ùle twen �
tieth ceutury.
The outbreak ofWor!d Wa r Two extended these powers with the prodarna­
tion of a "limited" national emergem::y on Septexnber S, 1939, whkh became un­
limited on May 27, 1941., On Septembcr ï, 1942., while reqoe_stlng that Congrcss
rcp-ea! a law wncerning ewnomk matters, the president renewtd his cla.im to
sovereign powers <lming the emergency: "ln the event that the Congress should
fail to act, and act adequateîy, I shall acœpt lhe responsihfüty. and I will act• . . .
The Ameriçan people can . , , be sure that I shall not hcsHate to use every power
Vested in me to aœomplish the defeat of our encmies in any part of tl1e world.
wherc our own safoty demari,<ls such defeaf' (Rossîter 1948, 268-69), The most
spcclacular vîofaüon of dvil rights (all the more sc-rïow, became of its soldy
racüll motivation) occurred on 1:ebruary ig., 1942, with the internment of .";ev­
enty thousand American citizens of Japanese descent who re-sided on the ½'est
Coast (along wîth fortythousand Japanese citizens wlu) Hved and worked there).
President Bush's decisîon to refor to himself co11stantly as ùte ·«comman­
der in Chief of the Army" after Septernber u > 2001, must be considered in the
context of this prcskle11tial daim to sovereign powers in emergency situations.
If, as we have seen, the assumptioo ,of this titlc cntaîls a direct refercnce to the
state of exception, then fü1sh is attcmpting to produce a situation in which the
[ the juridicai order, and the problem of defin -ing it concerns precisely
emcrgency becomes the n.,1le 1 and the very distinction betwcen peace and war
(and between foxdgn and civil war) be.cornes impossible.
1.8 The dilferences in the legal traditions correspon,I in scholarship
to the division betwcen those who seek to indude the state of excep­
tion within the sphc-re of the juridical order and those who consider it
'fhc Statc of Exccptlon as a Paradigm-of Gavernmcnt :z.3
somethîng external, that is. an essemUaHy poUtical, or in any case e.x­
trajnridkal> _phenome11on. Among the formerJ some (such as Santi Ro­
mano; Hauriou, and MDrtati) tmderstand the statc of exception to be
an integral part of positive law because the necessity that grounds lt acts
as an autonomous source of law, while othcrs (such as lioerni, Rancl­
letti, and Rossiter) conceive of it as the state's subjective {natural or
constitutional) rîght to its own preservation. Those in the latter group
(sucl1 as Biscaretti, Balladore-Pallieri, and Carré de Malberg) instead
consider the state of ex<:eption and the necessity that gTounds ît to be
essentially eii- rajuridical, de facto elements i eve11 though they may have
consequcnces in the sphere of law. Julius Hatschek has summarized the
various positions in the contras( between an objehive NotstandJtlteorie,
according to wlüch cvery act performed outside of or in confHct with
the Iaw in a state of ncœsshy is -contrary to law and, as sU.chi is lcgally
chargeable; and a suhjektive Notstandstheorie, according to which emer­
gency ! eccezionari] powe-rs are grounded in 1'a -constltutional or pre-con­
s!itutional (natural) right" of the state (Hatschek 1923, 158ff.), regarding
which good faith is ennugh to guanmtee irnmunity.
The simple topographkai opposition (inside/outside) implidt in
thi?se theories, seems lnsuffident to account for thé phenomenon that
it should e:xplaln. If the sta te of exce:ptiorls characteristic property is a
( tntar or partial) su."ipensfon of the juridkal order; how can such a sus­
pension still be contained within it? How can an anomie be insaihed
within rhe juridical order? And if the state of exception is in.ste"d only
a de facto situation, and is as such unrelated or contrary to Jaw, how is
it possible for the order to contain a lacuna precisely where the decisive
sltuatfon is concerned? And what is the meaning ofthis lacuna?
In truth 1 the state of exception is neither external nor înternal to
a thrcshold, or a zone of in<lifforencc, where lnside and outside do .not
exclu<le each othcr but rathcr hlur with each other. The su,5p-ension of
the norm does not mean its abolirion; and the zone of anomie that ît
e-stabllshes iB not ( or at least daims not to be) unre)ated to the juridkal
order. Bence the interest of those theories that, lîke Scbmitt's, compli­
cate the topographîcal opposi1ion into a more complcx topologkal re­
lation, in which the very limit of the juridical order is ·,:tt issue. ln any
24 Chapter One
case, to understand the problem ofthe statc of exception, one must first
correctiy determine its localization ( or îllocalization), As we will see, tl1e
conflkt ovcr the state of exœptjon presents itself essentîally as a dispute
over its proper locus.
1.9 A recurrent opinion posits the concept of necessity as the founda­
tion of the state of exception. According to a tcnadously repeated Latin
adage (a history of the adagia's strategic fonction in legal literature has
yet to be writtèn), t1ecessitas legem non habet., ''neœssity has no lawi"'
whkh is inte:rprete:d in two opposingways: "necessity does i10t recognize
any law» and ''neœssity c,reates its own faw" { néce&;ité fait loi). In both
cases, the theory ofthe state of exception is whol!y redoœd to the theory
of the staHJs necessitatis, so that a ju<lgment conœrning the existence of
the latter resolves the question conœrning thé legitimacy of the former.
Therefore, any discussion of the structure and meaning of the state of
exception first requfres an analysis of the qmœpt of necessity.
The principle according to whkh nect•ssitas !egt:m non habet was for­
mnlated in Gratîan's Decretum, It appears therc Lwo times: first in the
gloss and then in the text The gloss (whkh refors to a passage in whkh
Gratian limits himself to stating generically that "many tlùngs are done
against the rule out of necessity or for whatever other cause" [pars I.
dist. 48] ) appears to attribute to necessity the power to render the illidt
licit (Si propter necessitarem aliquid fit, illud licite fit: quia quod non est
licit11m in lege1 necessitas fodt licitum. ltem necessilas legem non habet [1f
something is done out of necessîty) it is clone lidtly, sinœ what îs not
licit in law necessity makes licit. Llkewise neœssity has no lawl ) . But the
j
sense in which this should be takcn is made clearer by a later passage in
Gratiau's text concerning the celebration of the mass (pars III. dist. 1. c.
11).After lrnving stated that the sacrifice must be offered on the altar or in
a consecrated place 1 Gratfan adds 1 ult is pœforable not to sîng or listen to
the mass than to celebrate it in places where it sh-ould not be ce1ebrated,
unless it happens becat,tse of a supreme necessity, for neœssity has no
laW (nisi pro summa necessitate contingat, quoniam neccssitas legem non
habet ). More than rendering the il!idt !kit, necessity acts here to justify
a single, spedfic case of transgression by means of an exœption.
This is dear in Lhe way Thomas în the Swnma theologita develops
The St;>tc of Exo:1:,tlon as a Paradigm of Govcrnment :l5
and comments on this principle preciseiy in relation to the sovereigds
power to grant dispensations from: the law (Primn secw1dae, q. 96, art.
6: utnu-n ei q ui subditur legt, liceM praeter verbti li:gîs ageri; (whether one
who is subjcct to Jaw may ac! against the letter of the law] ):
lf observing the letter ofthe law d0cs H()t ent,dl a1: immcdiate danger
that must be dealt with at once, h is not in the power of any man to
interpret what is of nse or of harm to the city; this rnn be doue only
by the sovereign who, in a case of this sort) has the a_uthority lo grant
dispcnsations from the law. If there is, hmvever, a sudden danger, re­
garding ·which there is no timc for recourse to a higher authority1
the very necessity cardes a dispensation with it, for necessity is not
suhject to the law f ipsa ncccssitas dispe11satfoncm habet mmexam, quia
necessitas non subditur legiJ .
Here, the theory ofnecessity is none other than a theory of the excep­
tion (dispensatio) by virlt1e of whkh a partkular case is released from
the ohlîgation to observe the iaw, ::-Jecessity is not a source of law, nor
does it properly su<:pend the iaw; it merély release.,; a particular case from
the Hteral application of the norrn: "He who acts beyond the letter of the
law ln a case of necessitydocs not judge by tll.e law itselfbut judges by the
particular case, ln which he sees that the letter of the law ls not to be ob­
served [ non iudicat rie ipsa lege, sed fudicat de casu singulari, in_ qùo videt
verl>a legis ab5er-vamla non esse]." The ultimate f:-,round of the exception
here is not necessity but the prindp]e accor<ling to whkh ''every law is
ordaîned for the c.on1mon well-being of men, and only for this does it
have the force and rcason of law [vim et rationem legisl; if it fails in this
regard, it has no rapadty to bind l Firtutem (}hligmuli non habet J ." Tn the
case of necessity, the vis obligandi of the law fa.ils ) because in this case
the goa1 of _s111us hominum is lacklng. \'\lhat is <'lt issue herc is dearly not
a status or sîtuation of the juridical order as such (the state of exception
or necessity); rather1 in ead1 instance it is a question of a p:articular case
in which the vis and ratio of the law find no application.
� We find an example of the law's ceasing to app-ly ex âispet1Satione misercor­
diae [ out of a dispcnsation of mercy] in a peculiar passage from Giatian where
the canonlst states that the Church can dect not to puni:;b a transgrc-ss.ion in

a situation wherc the transgressive deed has aJrcady oc.::urred (pro everU-u rei
[for the comequencf' of the thing] : for èxampfe in a ca&e wherc a person who
muid not accede to the epi�cnpate ha<i in fuct already been ordained -as bishop) .
Paradoxkally, the law is not applied here precisely because the trnnsgressive act
has effectiwly akeady heen committcd and punishing it would anyw;i_y entail
negative consequençes for the Church. In analyzîng lhis text) Anton Schütz has
rightly observcd that ''in conditioning validity by factidty, in seeking conta(,i
with an extrnjuridkol reality, [Gratianl prcvcnts the law from referring only to
the law, and thus prevents the dosure of the ,iurldi<:al (Schütz 1995, 120).
In tl1is sensc, the medicvaf cxcepüon rcptcS:cnts an opcujng of the juridical
system to an ex:ternal fact, a sort of ftctio Jegis by whkh., in this case, one acts
At if the bishop had bccn legitimately eledcd. The modem sfate of exception is
instcad an attempt to indude the exception itself v.'1thin the juridkal order by
creatîng a Z?nc of indistinction !n whid1 fact and \aw œindde.
� \Ve find an implidt cdtique of the -�tate 0f ex1:eption in Dante\ De monnrrhia.
Seeking to prove that Rome gained domfoion over the world not through vio­
lence but iurc, Dante States that it is impossible to obtàin the end oflaw (that îs,
the common good) without lai.-v, and that therefore "whoever fn ten<ls to a<:hicve
the end of law} must proceed with htw [q11imnq,1e finem foris fotcrulit mm titre
graditur]" Tlle ldea that a suspension of làw may be neœssary for the
cornmo11 good is foreign to ihe medieva[ wodJ.
1.10 It is only with the moderns that the sfate of ncœssity tends to be
induded within the juridical order an<l to appear as a true and proper
""s tate" of the law, The principle accordtng to which neeessity de:fines a
unique situation in which the law loses its vis obligandi (this is the sense
of the adage neœssitas h:gem non Jiabct ) L'> reversed 1 becoming the prin­
ciple according to which necessity constîtutes, so ta speak, the ultimate
ground and very so urce of the law. This is true not. only for those writ­
ers who sought in this vvay to justify the national intercsts of one state
against another ( as in 1he forniula 1Vot kennt kî!ln Gcbot [neœssity knmvs
no law] 1 used by the Prussian Chanœilor Bethmann-Hollweg and taken
up again in Josef Kohler's book of that titlc [1915]), hut also for those
jurist.�1 from Jellinek lo Duguit1 who see necessity as the foundation of
the validity of decrees havîng force of!aw issued by the executivc in the
state of exception,
The State ofExccption as a Pa-radig1_n ofGovernment 27
It is interesting to analyze from this perspective the ext.reme position
of Santi Romano, a jurîst who had a considerahle influence on European
legal thought between the•wars. For Romano, not only is nccessity not
unrelated to the juridical order, but it ls the first ,:md origînary source' of
law, He begins by distinguishing belween, on the one band� those who
see necessjty as a juridical fact or cven a-subjective right of the .state>
which is nltimately gfonnded as su.ch in the legislation in forœ and in
the general prindples of Iaw, and, on the other hand, those who think
ncœssity is a mcre fact and that thcrefore the emergency [ etrczionoli]
powers founded upon it have no basis in the legislativc system. Acco rd­
ing tD Romano, hoth positionsi whkh agreç in their idcntifinition of the
juddical order [ il diritto] with the law lla legge]," are incorrect, in.,.:;ofar
as they disavow the existence of a true and proper source of law beyond
legislation.
The neceS-sîtywith which -vve are concerned here must be Lonceîved of
as a state of affairs that, at 1east as a rule and in a complete and prac­
tkally effective way, cannol be regufated by prevîously estahlished
norms. Rut if ît has no iaw1 it makes law, as another cornrnon expres­
sion has ît; which means tl1at it itself constltutes a true and proper
source of!aw. . , . Jt can be s.1id that 11cccssity is the first ,md originary
source of all law, su.ch that by cornparison the others are to be con­
sidered somehow derivatlve . . . . An d it i� to necessity that the origin
and legitimation of the legal institntlon par excellence, namely, the
statE\ and îts constitutional order ln general, must be traœd back)
when it is cstablished as a de fac to process) for example, ùn the 'A'f!Y
to revo]ution. Aud what occurs ln the in itial moment of a partkular
regime c.an also repeat itselt: though in an 1,;xceptional way and wüh
* The nm term� here are diriltr, and lrgg,>, l:,;)th t>fwhkh nn: 1F1u!Jy trnnsldcd :in English
as "lmv." VVh:lle these terms have dme t:Dnèfp;,nden,:es i=l French (dmir, loi), Spanîsh
(d,tredw, iey), a:,d Genmm {Rerht, Gesetz}, ,;orne oft!wîr �e;:;�"' fa inevitably lost in tht'
1''"�;;g:t to EogHsh. Am,-:ing i:b::ir mon]ng.s, :Jirifi:; ç;s1Tir� �h,: s0ns� ofbw in the abstrart,
or the tnti:•e sphere ofhiw, while /cgg,; rctf'n to the �ped.fic body ofrnles that il conmmnîty
{lr ,tate con::idf'n: bindin;;, H1:re and b a fr;w (lthcr r.:ises where this distinction i� critical, 1
h;ive, follnwing the :rnthor's suggr�tinn, rrndercd diri1to as "thc- juridkal order"' and !eggc
as "the faw.''- Trans.
28 Chapter One
more attenuated cbaracteristics, even after the regime bas formed
and regulated its fondamental institu tions. (Romano 1909, 362)
As a figure of necessity, the state of exception therefore appears
(alongside revolution and the de facto establishment of a constitutional
system) as an "illegal" but pèrfectly "juridical and consti tutional" mea­
sure that is realized in the production of new norms ( or of a new juridi­
cal order):
The formula . . . according to which, in Italian law, the state of siege
is a measure füat is contrary to the law (let us even say illegr1l) but is
at the same time in conformity with the unwritten positive law, and
is for this reason juridical and constîtutional, seems to be the most
accurate and fitting formuh i. From both the logical and the bistorical
points of view, necessity's ability to overrule the law derives from its
very nature and its originary character. Certainly1 the law bas by now
become the highest and most general manifestation of the juridical
norm, but it is an exaggeration to want to extend its dominion be­
yond its own field. There are norms that cannot or should not be
written; there are others that cannot be determined except when the
circumstance? arise for which they must serve. (Romano 1909, 364)
The gesture of Antigone 1 which opposed the written law to the
agrapta nomima [unwritten laws] is here reversed and asserted in de­
fense of the constituted order. But in 1944, by which time a civil war was
un der way in his country, the elderly j urist (who had already studied the
de facto establishment of constitutional orders) returned to consider the
question of necessity, this time in relation to revolution. Although rev­
olution is certainly a state of fa-et that "cannot be regulated in its course
by those state powers that it tends to subvert and destroy" and in this
sense is by definition "antijuridical, even when it is just'' (Romano 1983,
222), it can, however, appear this way only
with respect to the positive law of the state against which it is di­
rected, but that does not mean that, from the very different point of
view from which it defines itself, it is not a movement ordered and
regulated by its own law. This also means that it is an order that must
The State of Exception as a Para digm of Govcrnment 29
be classified in the category of originary juridical orders, in the now
well-known sense given to this expression. In this sense, and within
the limits of the sphere wc have indicated, we can thus speak of a
law of revolution. An examim1tion of how the rnost important rev­
olutions, including the rnost recent ones, have unfolded would be
of great interest for demonstrating the thesis that.we have advanced,
which could at first sight seem paradoxical: revolution is violence,
but it is juridically organized violence. (Romano 1983, 224)
Thus, in the forms of both the state of exception and revolution, the
status necessitatis appe<1rs as <1n ambiguous and uncertain zone in wbich
de facto proceedings, which are in thernselves extra- or antijuri dical,
pass over into law, and juridical norms blur with mere fact---that is,
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 ("Emergcncy is a state of fact; howcver, as the brocard fittingly says,
e facto oritur ius [law arises from fact]" [Arangio-Ruiz 1913, 528 1 ) , 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 facL
The essential point, in any case, is that a threshold of undeddability is
produced at which factum and ius fade into each other.
Hence the aporias that every attempt to define necessity is unable to
resolve. If a measure taken out of neccssity is already a juridirnl norm
and not simply fact, why must it be ratified and approved by a law, as
Santi Romano (along with the majority of writers) believes it must? If it
is already law, why does it not last if it is not approved by the legislative
bodies? And if instead it is not law, but simply fact, why do the legal
effects of its ratification begin not from the moment it is converted into
law, but ,x tune [ from then] ? (Duguit rightly notes that this retroactivity
is a fiction and that ratification can produce its effects only from the
moment at which it occurs [Duguit 1930, 754] .)
But the extreme aporia against whicb the entire theory of the state
of necessity ultimately runs aground concerns the very nature of neces­
sity, wbich writcrs continue more or less unconsciously to think of as an
ohjective situation. This naive conception---wh ich presupposes a pure
factuality that the conception itself has called into question-is easily
30 Chapter One
critiqued by those jurists who show that, far from occurring as an ob­
jective given, necessity clearly cntails a subjective judgment, and that
obv�ously the only circumstances that are necessary and objective are
those that are declared to be so.
The concept of necessity is ah entirely subjective one, relative to the
aim that one wants to achieve. It may be said that necessity dictates
the issuance of a given norm, because otherwise the existing jnridi­
cal order is threatened with rnin; but there must be agreement on
the point that the existing order must be preserved. A revolution­
ary uprising may proclaim the necessity of a new norm that annuls
the existing institutions that are contrary to the new exigencies; but
there must be agreement in the belief t:hat the existing order must
be disruptcd in observance of new exigencics. In both cases . . . the
recourse to necessity entails a moral or political (or, in any case, ex­
trajuridical) evaluation, by which the j�ridical order is judged and is
held to be worthy of preservation or strengthening even at the price
of its possible violation. For this reason, the principle of necessity
is, in every case, always a revolutionary principle. (Balladore-Pallîeri
1970, 168)
The attempt to resolve the State of exception into the state Of neces­
sity thus runs up against as many and even more serious aporias of the
phenomenon that it should have explained. Not only does necessity ul­
timately corne clown to a decision 1 but that on which it decides is, in
truth, something undecidable in fact: and law.
�t Schmitt (who r�fers several times to Santi Romano in his writings) probably
knew of Romano's attempt to ground the state of exception in necessity as the
originary source of law. His theory of sovereignty as the decision on the excep­
tion grants the Notstand a properly fondamental rank, one that is certainly com­
parable to the rank given it by Romano, who made it the originary figure of the
juridical order. Furthermore, he shares with Romano the idea that the juridical
order [il diritto] is not exhausted in the law [ la legge] (it is not by chance that be
cites Romano precisely in the context ofhis critique of the liberal Reclit,çstaat);
but while the Halian jurist wholly equates the state with law, and therefore denies
all juridical relevance of the concept of constituent power, Schmitt sees the state
The State of Exception as a Paralligm ofGovernment 31
of exception as precisely the moment in which state and law reveal their irre-­
ducible difference (in the state of exception "the state continues to exist, while
law recedes" [Schmitt 1922, 13/12]), and thus be can ground the extreme figure
of the state of exception-sovereign dictatorship-in the pouvoir constituant,
1.11 According to some writers, in the state of necessity "the judge elab­
orates a positive law of crisis, just as, in normal times, he fills in juridical
lacunae" (Mathiot 1956, 424). ln this way the problem of the state of
exception is put into relation with a particularly interesting problem in
legal theory, that of lacunae in the juridical order [ il diritto] . At least as
early as Article 4 of the Napoleonic Code ("The judge who refuses to
judge, on the prctence of silence, obscurity or insufficiency of the law,
can be prosecuted on the charge of denial of justice"), in the majority
of modern legal systems the judge is obligated to pronounce judgrnent
even in the presence of a lacuna in the law [ la legge] . In analogy with
the princip1e according to which the law [ la legge] may have lacunae,
but the juridical order [ il diritto] admits none, the state of necessity is
thus interpreted as a lacuna in public law, which the executive power is
obligated to rernedy. 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? 1s there truly
something like a lacuna in the strict sense? Here, the lacuna does not
concern a cleficiency in the text of the legislation that must be cornpleted
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 nor­
mative lacuna, the state of exceptîon appears as the opening of a ficti­
tious lacun a in the order for the purpose of safeguarding the existence
of the norrn and its' applicability to the normal· situation. The lacuna
is not within the law [ la legge] , but concerns its relation to reality, the
very possibility of its application. Tt is as if the juridical order [ il diritto]
contained an essential fracture between the position of the norm and its
application, wh ich, in extr!me 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 [ la legge], as such, remains in force.
2 l\ Force-of-J;aw_:
2.1 111e most rigorous attempt to construct a theory of the state of
exception was made by Carl Schmitt, essentiaHy in the books Dicta­
torship and, one year later, Political Theology Because these hvo books
from the beginning of the 1920s describc-with a, so to speak, inter~
ested prophesy-a paradigm (a ''form of govemment" [Schmitt 1921,
151]) that has not only remained current but has today reached its full
development, it is necessary at this point to pr-esent the fundamental
theses of Schmitt's theory of the state of exception,
First a frw remark'i conœming terrninology. In the book from 1921
the slate of exception is prescnted through the figure of dictatorship.
Dictatorship, however, whkh t:'ntompasses the state of siege, is essen­
tially a «state of exception,1' and insofat as it presents itself as a "sus­
pension of law," it comes down to ù1e pmblem of Jefining a "\:oncrcte
exception, . . . a probiem that up to now has not been held in due con­
sideration by the general theory of lav/' (Schmitt 19211 xvii). Havlng
tlms inscribed the st;:1te of exception within the c-0ntex.t of dktatorship>
Schmitt then' distinguishes between ''commîssarfal dictatorshipt which
has the aim of defending or restoring the existing constitution, and
"sovereîgn dktatorship,i' in which> as a figure of the exception, dictator­
ship reaches its, so to speak1 critica1 mass or rnelting point. The terms
dictatorship and statc of siege can thus dîsappcar in Politiwl Theology1
with the state of exception (Ausnalimezustnnd) taking their place, while
the empha.sis shifts, at le--ast apparently, from a definition of the excep­
tion to a definîtion of sovcrefgnty. The strategy of Schmitt's lheory is
therefore a two-stage strategy, whose articulations and aims we wîU have
to understand dearfy,
ln both books, the telos of the thcory is the inscription of the state of
exception within a juridical context. Schmitt knows perfectly wcll that
because ît brings about a '<suspension of the entire existing jurldical or­
der" (Schmitt 1922, 13/12_) , the state of exception scems to ''sub tract itsdf
from any ronsîderation of law" (Schmitt 1921, and that indeed "ln
its factual substance, that is, in Jts core t it cannot take a jmidkal fom1"•
(175) . Nevertheless, it _îs essential for Schmitt that in every case some
relation to the juri<lical ordcr be ensured: "Both ç,0m mîssarial dictator­
ship nnd soveœign dictatorship eu tail a relation to a juridîcal context"
( 139); ''Because the state of exception is always something different from
anarchy and chaos, in a juridical sense, an order stlll exîsts in it> even if
it is not a juridical ordee' (Schmitt 1922, 13/12).
TI1e specific contribution of Schmitt's theory is precisely to have
made such an artkulatîon between state of exception and juridical or­
der possible. It is a pa.radoxical artkulationi for what must be inscribed
within the lm.v is something that is essentîally exterior to it, that is,
nothtng less than the suspensîon of the jurîdkal otder itself (hence the
aporetïcal formulation: "ln a jurldical sense, an order stilJ exists, . . .
even if it is not a ,iurîdka1 order").
In Dictatorship, the operator of this imcription of an outside Q[ the
law wlthin the law is, in the case of commissarial dîctatorship, the dis­
tinction between norms of law and norms of the rea1ization of law
(Rechtsvcrwirklichung) and) in the case of sovereign dictatorship_, the
distinction bctween constituent power and constituted power. Indeed,
because it "suspends the constitution irt concreto in order to protect its
concrete e...xistenœ" (Schmitt t921, 136) ) commissariat dictatorship ulti­
mately has the fonction ofcreating a state of affairs "in which the faw can
be realized" (137), ln commissariat dictatorship1 the constitution can be
suspended in its application "v11itbout thereby ceasingto rcmaJn in force,
be,c,_mse the srn;pension signifies solely a c-oncrete excepti{m" (137). On
a theoreticaJ level, commissarial dictatorship am drus be wholly sub­
sunwd in the distinctîon between the norm and the techno-practkal
rules that govern its realization.
The situation is diffotcnt in sovereign dictator5lüp, whkh is not lim­
ited to suspending an exfating constitution ''on the basis of a dght that is
provided for th-erein and is therefore itselfconstitutional" (Schmitt 1921,
Ratheri ît aims at creatîng a state of affairs in which it becomes pos­
sible to impose a new constitution, In this case j the nperator that allows
the state of exception to be anchored to the jurid.ical order is the dis4
tînction bchveen conslituent power and c<.mstituted power, Consf-itucnt
34 Chapter Two
power îs not, however, "a simple question of force"; it is, rather) "a power
that, though it is not constituted in virtue of a constitution, is neverthe­
less connected to every existing constitution in such a waythat it appears
as the fmmding power, . . . and for this reason it cannot be negated even
if the exîsting constitution might negate it" (137), Though it js juridîcally
formless (forrnlos)) it represents a ''minimum of constitution" (145) in­
scribed within every politically decîsive action and is therefore capable
of ensuring the relation between the state of exception and the juridical
order even in the case of sovereign dictatorship.
This clarifies why in the preface Schmitt can present the "esscn­
tial distinction between comrnissarial dictatorShip and sovereign dic­
tatorship" as the "chief outcome of the book," which makes the con­
cept of dictatorship "finally accessible to jurisprudential consideration"
(S_chmitt 1921) xviii). Indeed, what Schmitt had before bis eyes was a
"c.onfosion" and "combinatîon" between the two dictatorships that he
never tired of denouncing (203 ) . Yet neither the Leninist theory and
practice of the dicta torship of the proletariat nor the gradual exacerba­
tion of the use of the state of exception in the Weimar Republic was a
figure of the old cornmissarial dîctatorship; they were, rather, somethîng
new and more extreme, which threatened to put into question the very
consistency of the juridico-political order) ,md whose relation to the law
is exactly what Schmitt sought to preserve at all costs.
In Political Theology) on the other hand, the operator of the inscrip­
tion of the state of exception within the juridical order is the distinc­
tion (which had already bcen proposed in the 1912 book Gesetz und
Urteil) between two fundamental elements of law: norm (Norm) and
decision (Entscheidung, Dezision) . In suspending the norm, the state of
exception "reveals [ ojfenbart ], in absolute pnrity, a specîfically juridical
forma] element: the decision" (Schmitt 1 922, 13/13). The two elements,
norm and decîsion 1 thus show their autonomy. "Just as in the normal
situation the autonomous moment of decision is reduced to a mini­
mum, so in the exception al situation the norm is annulled [ vernichtet] .
And yet even the exceptional situation rcmains accessible to juridical
knowledge, because both elements, the norm as well as the decision,
remain with in the frarnework of the juridical [im Rahmc11 des .furistis­
chen] " (13/12-13 ) .
Force-of-� 35
At this point we can understand why the theory of the state of ex­
ception can be presented in Politirn! Thcolngy as a theory of sovereignty.
The sovereign 1 who can decide on the state of exception, guarantees its
anchorage to the juridical order. But precisely because the dedsion here
concerns the vcry annulment of th e norm , that is, because the state ot
exception represents the inclusion and capture of a space that is neither
outside nor inside (the space that corresponds to the annulled and sus­
pcnded norm) 1 "the sovereign st.mds ou tside [steht r111ficrhalh] of the
normally valid juridical ordet\ and yet belongs [gehOrt] to it, for it is
he who is responsible for deciding whether the constitution can be sus­
pended in toto" (10/7) .
lking-outsirfe, and yet bclongi11g: this is the topological structure of
the state of exception, and only because the sovcreign, who decidcs on
the exception, is, in trnth, logically defined in his being by the exception,
can he too be defined by the oxymoron ffstasy-bclonging.
N The relatîonship between Dictatorship and Pofitirnf Thc()/ogy must be seen
in the light of this complex strntegy of inscribing the state of exception ·within
the law. Jurists and political philosophers have gencrnll )' directed lheir Mtention
chiefly to the theory of sovereignty contained in the hook from 1922, without
realizing that this thcory acqt1ires its sen se solely on the basis of the t:heory of the
state of exception already elaborated in Dictatorship. The rank rmd the paradox
of Schmitt's concept of sovcrcignty derive, as we have seen, from the state of
exception, and not vice versa. And it is certainly not by chance that Schmitt had,
in the 1921. book and in previous articles, first laid out the theory and praxis
of the state of exception, and only later laid out his theory of sovcreignty in
Politiml Tlicology. Therc îs no doubt that his theory of sovereignty rcpresents an
atternpt to anchorthe stote of exception unequivocallyto the juridical order, but
the attempt would not have been possible if the state of exception hc1d not first
been articulated within the tenns and concepts ofdictatorship c1nd, so to speak,
"juridicized" tl;rough reference to the Roman magistrncy and thcn through the
distinction between norms of law and norms of realîzation.
2.2 Schmitù theory of the state of exception proceeds by establishing
1vithin the body of the law a series of caesurae and divisions whose ends
do not quite meet, but which, by means of their articulation and oppo­
sition, allow the machine oflaw to fonction.
 36 Chnpter 'I\ro
1àke on the one hand the opposition between norms of law and
nonns of lhe realization oflaw, between the norm and its concretc ap�
plkation. Commissariat dictatorship shows that the- moment of appli.ca­
tion is :: rntonomous with respect to the norm as suth; and that the norm
"can be suspended, without thereby ceasing to remain in force'., (Schmitt
1921, 137), Tho.t is) commis.s a.rial dictatorship represents a state of the law
in which the law is not appiied, but remains in force, Jnstead) soverdgn
dktatorship (in which the old constitu tion ho longer ex:ists and the new
one is present in the "minimal" form of con5tîtueflt power) represtmts a
state of the law in which the law is applied, but is not formally in force.
Take now the opposition betvveen riorm and dedsion. Schmitt shows
that they are lrreducible) in the sense that the decision can never be deM
rived from the content of a norm without a remainder (restlos) (Schmitt
1922, 9/6). In the decision on the state of exception, the norm is sus­
pcn<led or even annulled; but what is at issue in this suspens.ion is> onœ
again , the creation of a situation that makes the applica tion of the norm
possible (''a situation in which juridica! norms can b-e valid [gelten J must
be bronght about" (1.3/13), That is, the state of exception scparates the
norm from its application in nrder to make its application possibie. It
introduœs û zone of anonüe into the law in order to make the effedive
regulation [ normazione; of the real possible,
We e;rn ) then, deiine the state of exception in Sdunitt1s theory as the
place where the opposition bcttveen the norm and its reaHzalion reacbes
its greatcst intensity. It i5 a field of juridical tensions in whkh a mini~
nmm of formal beîng-in-force [vigenza] coinddes with a maximum of
real appHrntion) and vice_ versa. But even in this extreme znne---and,
indeed, predsely byvirtue ofit--the two elements of the law show their
intimatt} cohesion.
� The structurai analogy between !anguage and law is inuminating here. Just
as lingnistk dements subsist in langue wîthout any ,cal denotation, which thcy
acquire only in actunl diso::mrse1 so in the ;,1:ate of exception the norm is in forœ
without any refen:nce to reaiily, But just as concrete !inguîstic activity becomes
tnteUigibJe pn:dsely through the presupposition of somcthing like a languago;'\
so fa the norm ahle tu n:fer to the normal situation through the suspcnsïon of
its npplication in the state of exception.
Jt çan generally be said that not only language and law but all social institu�
tic.ms have been forme<l through a proœss of desemanticization and suspen­
sion of concrete praxis in its immediate reference to the rcal. Jusl as gram"
mat, in prodt1cing a speech without denotationi has isolated something like
a language from discourse, and law, in suspcnding the concrete custom and
usage of individua!s, has been ab]c to isolate something like a norm, so tl}€
patient work of civiliu.tion procecds in every domain hy separating human
praxis from its concrch:' exerdse and therebycreating that ex,;:ess of sîgnifkation
over denotation that Lévi-Strauss was the first to recognil.e, ln thls sen:;e, the
f!oating signifier••·-this guidin.g concept in the hnman sdences of th<: tv10ntieth
centur yc---corr�:,pond:s to tbe state of exception, in tvhich the norm is in force
withont beiug ap1Jlied.
2.3 · In 1989, at the Cardozo School oîLaw in New York, Jacques Derrida
gave a lecture titled "Force de loi: le 'fondement mystique de l'au torité: "
The lectu re, whkh in tn1th was a reading of Benjamin's essay "Critique
of Violence:' gave rise to a wide debate among philosophers as well as
jurisrs, but the fuel that that no one attempted to ana!yze the seeming!y
enigma tic formula that gave the text its 1îtle is an indica tion not only of
the complete separation henveen philosophkal and leg-,;l cultures, but
also of the 1atter's dedine,
Behind the syntagma fone of Llw stands a long tradition in Roman
and medieval law, where (:at least beginning ,vith Justinian's Digests, De
legibus, 1.ï; legis virtus haec est: imperare, vctare; permittere, punire [The
capacity of law is rhis: to command, to forbid, to allow, to punish ] ) it
has the generic sense of effica cy, the capacity to bind . But only in the
modern epoch, in the context of the French Revolution, does it begin
to indicate the supreme value of those state acts <leclared by the repre­
sentativc assemblies of the people. Thus, in Article 6 of the constitutio,1
of 1791, force de loi designates the untouchahiHty of the law, whkh even
the sovereign himself can neither abrogate nor modify. In this reganl,
modern doctrine distinguishes bet\-veen the efficacy of the law-which
rests absolutely with every vaJid legislative act and consists in th,• pro�
duction of legal effects-and the force oflaw, which is instead a relative
concept that expresses the position of the law or of acts comparable to it
with respeét to other acts of the juridîcal order that are endm,ved with a
38 Chapter Two
forœ superior to the law (as in the case of the constitutïon) or inferior to
it (such as the decrees and regulations issued by the executive) ( Quadri
1979, 10 ).
The decisive point, however, is that in both modern and andent doc­
trîne the syntagmaforce oflaw refus in the technical scnse not to the Iaw
but to those deC:rees {which, as we indeed say, have the force oflaw) that
the executive power can be authorized to issue in some situations, par­
ticularly in the state of exception. That is to say, the concept of ''force of
law;' as a technkal legal term, defines _a separntion of the norm's vis 1J/1li­
gandi, or applicability, from its formal essence, whereby decrees ) provî­
sions1 and rneasures that are not forma!ly laws nevertheless acq_uire their
"f01:ce." TI1us, when the Roman sovereign begins to acquire the power
to issue acts that tend increasingJy to have the value oi: laws, Roman
doctrine says that these acts have the "force of lav/' (Ulpîan 1 in Digests,
1.4-,1; quod principi placuît legis habet vigorem [because it pleased the
sovereign, it has the force oflaw] ; usîng equ iv:i]ent expressions > though
ones that underscore the formal distfnctkm betwcen the falVS and the
constitution of the sovereign, Gaius -..vrites legis vireni (lbtineat [lèt it
take thepiaœ oflaw] , and Pomponius writes pro lege servetur (let it serve
for law]).
In °0 l�r di.:;cusslon of the state of exception, ,ve have encountered 1111-
merous ex.amples of thü confusioii betvveen acts of the executive power
and acts of the legislative power; îndeed, as we have seen, such a con­
fusion defines onc-,of the essent îaJ chanicteristks of the state of exéep�
tion. (The ilmit case is the Nazî regime, in which) as Eichmann never
tired ofrepeating, "the words of the führer have the force oflaw [ Geset­
zeskraft] ):' But from a tedmical standpoint the spedfic contribution of
the state of exception is less the confusion of powers, which has been
ail fo� strongiy lnsisted upon, than it îs the separntion of "force oflaw»
from the htw. It defincs a "state of the law" in whkh) on the one hand,
the norm îs in force [ vigeJ but is not appUed (jt has no '!force" [JO rza J)
and, on the olher) acts tha t do not have the value [valoreJ oflaw acquire
its "force," That is to say, in extrcme situations "force of law" tloats as
an indeterminate ekment that can be daimed both by the state author­
ity (which açts as a commîssarial dictatorship) and by a revolutionary
organîzatîo-n (which acts as a sovereign dictatorship), The state of ex­
ception is an anomie space in which what is at stake is a force of law
without hnv (whkh should therefor<: be written: force-of-Jaw.:.). Such a
"forœ-of'...]trvft in \vh kh pole!1Jiality and act are rndirn lly sepa rated, is
certninly something like a mystical element, or rather a fictio byrneans of
which faw sccks to anncx i'!nom ie itself, But hfYW is it possihîe to conceive
"'
ofsuch a ''mysilcal demcnt and the way it acts in the state of exception?
This is precisely the problem lhat we must try to clarify.
2.4 The concept of application is œrta inly one of the most prohlematic
categone, oflegal (and not on]y legal) l'heory. The question ,;,v;;is put on
a false track hy helng related lo Kanî's theory ofjudgmcnt a-; a facuîty of
think:ing the partkular as contained in the genernl. ·n1e application of a
norm wnuld thus be a �use of de-terminant judgment; in whkh the gen­
eral (the rule) is given, and the pnrticular case is to be sub:mmed under
it. (ln reflective judgment it is instead the particular that îs given, and the
general rule that must be found.) Even though Kant was perfectly aware
of the aporetk nature of the problcm and of the dj ffiçulty involved in
concretely dedding bctween the two types of jndgment : as sh mvn by
his theory of the ex,rmpte as an instance of a ruk that cannot be enun­
ciated), the mJstake here is lhat Hte relation hetween the part:icufar case
and the norm appea.rs as a merely logkal operation.
Once aga.in, the analogywith languagc is illuminatîng: In the relation
berween the general and the rartk11lar (and all the more so in the case of
the application of a ,luridk.al norm) ) tt is not only a l ogka! subsumption
thàt is at issue) but first and foremost the passage- from a generic propo�
sition endowed with a merely virtual refere-nœ LO a cuncrete refrrcnœ
to a scg.me11t of reality (that is, nothing less than the question of the ac
tual relation betWl"en language and world), This passage from langue to
parole, or from the semiotic to th e semantk, is not -a )ogical oreratbn at
aU; rather, it alway'S eritails a practical activity, that is1 the assumption of
langue by onc or m0re spcnkîng st1hjc..::ts and the impkrnentati011 of that
cornplex apparatns that Benveniste dcfined as the ennnci ative fon ction,
which logicians often tend to undervalue, ln the case of the }uri<lical
norm, reforenèe to the concrcte case entails a «trial" that a1ways involves
40 arnptcr Two
a plurality of subjects and ultimately culminates in the pronunciation of
a sentenœ, lhat is, an enundation wlwst� operative reference to reality
is _guarantecd hy the institut1onaJ power&.
In order to pose the prohlem of application corrcctly; it must therc­
fore first be moved from the logical sphere to the pracùcal. J\s Gadamer
has sbown (1960, 360, 395/37�•79, 418), nor only is cvery linguistk inter­
preration 'ahvays reaBy an application requiring an effective operation
(whkh the trad l i ion of theologkal hermeneutîcs has summarized in the
maxim that Johann A. llengel placed at the beginning of his edition of
· the New Tes lament: te totum applicn ad textmn, rem totam applica ad
te [ apply al! of yoursdf to the tcxt; apply ail of it _to yourself!), but it
is also perfect!y obvions (and Schmitt had no difficulty theorizing this
obvlousness) that) in th e case oflaw, the application of a norm is in no
way contained within the norm and éànnot be derived from it; other­
wise, there woul<l have been 110 need to create the grand edHice of tdal
law. Just as between hmguage and world, so behveen the norm and its
applicatîon there is no internal nexus that aJiows one to be derived im­
mcdiately from the other.
In this st:ns-e, the stnte of exception IS the opening of a spaœ in wh ich
application and norm reveal thcir se:paration and a pure forœ-of-]àv,(
realizes (thal is, applies by ceasing lo apply f dis-applicamlo] ) a norm
whose applicntîon has been suspellded. In this way; the impossible task
of welding norm and reality together, and thereby cbnstituting the nor­
mal sphere, is carried out in the form of the �xœptfon, that is to say, by
prcsupposing their nexus. This means drnt in order to apply a norm ît is
ultimateJy necessnry to suspend its appl ication, to produce an exception.
In every case, the state of exception marks a thr�shold at \Vhich fogjc and
praxis blur with each other and a pure violence without logo;; daim:, to
realize an enundation without any real reference.
3 � Iustitium
3.1 TI1ere is an institution of Roman law that can în some ways be
-considered the archetypc of the mode-rn A11s11ahmczustand, and yet·····
indeed, perh-aps predsely for thîs rcawn-does not seem to have heen
given sufficient attention by legal historians and theodsts of public law:
the iustitimn. Because it allows us to observe the st'flte of exception in its
paradigmatic form� wc wiU use the iustittwn here as a miniature mo<lel
as we attempt to untangle the aporias that the modern theory of the state
of e--.:ception cannot resolve,
Upon Jparning ofa situation th at endangered the Republic1 the Senate
w0tùd issue a scnatt1s ccmsu ltum :1!ti111um �final dccree of the Senate]
by whkh lt called upon the consuls {or those in Rome who :acted in
their stead: interrex or proconsùls) and, in some çases, 'the praetor and
the tribunes of the people> and even� in ex:treme cases, all dtizens, to
take wha tever measures they considered neœssary for the salvatfon of
the state (rem publimm defendrmt, opcmmque dent ne quid respublira
detrùnenti capiat [Let them defend the state, and see to it that no hurm
corne to the statel ). At the base of this semitus mnsultum was a decree
declaring a tumultus (that î�1 ;m emergenry situation in Rome re:mlting
from a fureign war} insurrection, or civil w,u) i which usuaUy Jed to the
proclamation of a iustitium (iustitium edicere or indiœre [ to prodaim
or dedare a iustitium] ).
'fl1e term iustitimn-�which is constructed ex:acdy llke solstitiun1-
literally means '"standstiW' or ''suspension of the laW': i/t1tmdo ius star,
as the grnmmarfans cxplaîned etymologkally, sicut solstitium dicitur
( iustitium means "wheu the )aw stands still, just as [ the sun does inJ
the s.olstkc"); ori in the words of Aulus Gellhts, fltris quasi interstitio
quacdam et ccssatio ( as if it were an Jnterval and a sort of cessa tion of
law). The term implied, then, a suspension nût simply of the adminis­
tration of justice buL or the law as such. The meaning of this parad oxical
legal imti iution--which consists solely in the production of a juridical
 42 Chapter Thrce
void-is what we must examine here frorn both a philosophico-politiœl
standpoint aod from the perspective of the systematics of public law.
1-t The definition of the concept of f:u multus, partkularly in wrnparison to war
(hellum), has led to debates that are not always pertinent. The conne<:tion be­
twren the two concepts is alre<1dy present in an dent 1,ources� for exampk in the
p:m:ige frnm lhe Philippics (8.1) in which Ckero &tatcs that "there can be a wilr
without tumult, bu l no tumult without a war." AJl evidenœ suggests !hat this
passngc doe6 not rnean that tumult ls a special or stron€rer form ofwar ( qthJli,
firirles, ge.steigcrtes /Jcll11111 [see Nisscn 1877, 78]); instead, at the very momenl of
affirming a connection bt'twecn war and tumult, it places ,m lm:dudble differ­
cnce between them. _J ndeed, un analysîs of the passage!i from Uvy rnncerning
t11rnu!t11s show� that though t11t! cause of a tumuh can be (but is not alway�}
an external wrir, the ter!l'.I tedmkalJy desigJJates the state of disordcr and imrest
(tmnultus is related to tumor, which mean:,; '" svvdling, fermentation'') that atist'&
Îtl Rome as a rcsult of lhat event (thus the news üf a defoat in the war against
the Etrnscans gave dRe to a turnuh and 11uriam11 quw11 re tcrrorem [greuter ter­
rer than the thing] [Livy w.�p.] in Rome), This confusion bctween cause ami
effect Js dear in the definition found ill the Latin dictkmaries: hrl!Hm aliqrwd
rnhitum, l]Uod ah pcrinJ!i rmigrritt;rfbî1•m hos1hnnqac 1·idnif.rrern m;1g,wm urbi
trepîilatiLmcm inmtieb11f rany sudden WaJ' that brings great alarm to the city on
account of the magnitude of the danger and neamess of the mcmy1 (ForœHinYs
Totim T ati11itr.fis t.,xicon), Tumult ls not ''suddcn w:ir," but th,:, magno trcpîdritia
that it prodti..:es in Rome, ']11isis 1vhy, in otbcr cast>s, the same lerm can a!so des­
ignate the disotder resulting from 'ln ITl:tcrnaJ însurrection or civij wa r. Tht• only
po:.slhle dchnition capable of comprising all it:- known uses is the ont'- that sees
tumultus as "the G1esura by tne<1ns of whkh" from the point of view of puhlk
Iaw, e,xceptkmal mcasores may be takcn" (Nissen 1877, 76}. The rel8tion between
bellum and tumultus is the s;une one that exists between war and mlHtary slate
of siegc on the one han.I and statc of e:;;,:er•ll<m and politkal sfltic of siege ou
the other,
3,2 It Œn comc as no surprise that the reconstruction of something
Hke a theory of the state of exception în the Roman çonstitution has
always put Roman scholars ill at ease, given that, as w;;; have secn, such
a theory is geùcrally mîssîng frmn public law.
Jn this regard, Mommsen:,s stance is signifi,,::ant. \Vhen, in his ROmi-
Tmtitimn 43
sches Staatsrecht, he has to con front the problem of the senatus consul­
twn 11ltiin1.11n and the state of n<>œf:sity that it presupposes, �he best he
can do is œsort to the image of the right of self-defense [ lrgiffima dtftsa 1
(the German term for self-defcnse) No!wehr1 recaJls the tcrm for the state
of emergency, Notstrmd): "Just as every citizen acquires a right of self.
defense in those urgent situa!Jons in which the protection of the com­
munity faHs, so there is aiso a right ofself-defense for the state and for ev­
ery citizen 2s such ,vhen the community is ln danger and the mag1strat­
ical fi.mction breaks down. Though in a certain sense it stands outside
of the law [ausserhalb des Rechts] , it is nevertheless necessary to make
the essence and application of th-is right of self-defense [ Nat111ehrrcchtj
intclligible 1 at ]cast to the dcgree to whkh it lends itself to a theoretical
e..xposition" Ovfommsen 1969, 1: 687-88).
Mommsen's affirmation of the state of exccption's extr::ijnridical
character and his doubts about the very possibility of presenting it the­
oretkally are matched by certain heshotions and jnconsistencies in his
discussion that are surprising in a mind such as his, which has been
described as rather more systematic than hîstorîcal. Firsl of alJ, even
though he is perfoctiy aware of Jts contiguity with the senatus mnmltum
ultimum; he does not examine the ius-t-hiu11-: in the section dedicated to
the state of neœssity (Mommsen 1969, 1: 687--97) but in the Séction rhat
deals with the magistrales' right ofveto (263ff.). Furth ermore\ though be
is aware that the senatus consultwn u!timul"!1 refers essentially to dvil war
(it is the me.ans by which "dvil Nar is prodaimed" l693] ), and though
1
he knows that the form of conscription is different în the t½'O cases
( 695t he does not seem to distinguish between tum11lt1-1s and state of
\var { Kriegsrccht). In the last volume of the Staatsrech t, he defines the
senaws consultm-n -u.ltimwn as a "quasi--dictatorshîp;'' introduced into
the com;tit\Jtional system in the time of the Gracchi, and he adds that
"în the 1a.st œntury of the Republ.î c, the Senate's prerogative to exercise
a law of war over the citizens was neve.r scriously contested" {3: 1243-
44). YCt the image of a "quasi -dktatorship" (which wîll be picked up
by Plaumann [19131) is entirely misîea<ling, for here not only is there
no creation of a new magistra cy, but îndeed every citizen seems to be
invested with a flo,ning ,n1d anom<1lous imperium th ,:it resists definition
within the terms of the normal order,
44 Chapter Tbree
In his description of this state of exception, Mommsen)s acumen
manifests itself precisely at the point where it slwws its limits. He oh••
serves that the pmver in question absolutely excccds the constitutional
rights of the magistrates and cann ot be examined from a juxidico-formal
point ofview. He writes,
Jfalreadythe mention of the tribunes ofthe people and the provincial
governors, who lack impcrimn or hold it only nominally, prohihits us
from considering thts appeal l the one contained in the senatus con­
sultum ultimum] as merely a call to the magistrates to energetically
exerdse füeir constitutional rights> this appcars even more dearly on
the occasion when, afler the senatus consullwn provokcd by Han­
nibal's offensive1 aH tlH) ex:-dktators, ex-consuJsj and ex-censors as­
sumed imperium again and retaine<l it untii the w!thdrawal of the
enemy. As the call to the ceosors also shows, this is not a case of an
exceptionol prorogation of a previously held office1 whkh, moreover1
the Senate coukl not have ordcred in this f�)ffil. Rather, these sena­
tus consulta cannot be judged from a Juridko�formal standpoint: it
is necessîty that produces law, and by dedadng a state of exception
[Notstand], the Senate, as the highest advisory authorHy ofthe com­
munity, adds only the counsel tbat the now permitted and necessary
persona! defenses be expediently organized. ( 1969, 695-96 J
Here Mommsen reca Ils the case of a private citiz.cn 1 Sdpîo Kasica,
who, when confronted with the consuYs refüsal to act against Tiberlus
Gracchus in execution of a senatus consult11n1 ttltimwn, exdaims, " q ui
rem p ublicmn salvam esse vult me sequatur! [He who tv'ishes that the
state be safe, let him follow me! ] " and kills Tiberins Gracchus.
The imperium of these commanders in the state of exception [Not­
standsfeldherren] stands beside that of the consuls more or less as
the imperium ofthe praetor or proconsul stands besidc consular im­
perium. . . . The power conferred here is the customary one of a com­
mander, and it makcs no difference whether it is directed against an
enemy who lays sicge to Rome or against a citizen who rebels. . . .
Moreover, this authority of comm,md [ CommandoJ j however it may
mttnifest itself, is stfü less formu!ated than the analogous power in the
Iu,tifimn 45
s:tate of necessity [ Notstt111dsrmnmando) in a zone militiac, and; Hke
it, disappears on il& o,vn wlth the cessation of the danger. (Mommsen
1969, 1; 694--96)
In his description of this Nr>tstnrufscommando, in whk:h any and ev­
ery citizen sccms to be invest.ed with _an imperimn that lS floating and
''outside of the law," Mommsen came as dose .is he cou ld to formul:Hing
a theory of the state of exception, but he remained on this sîde of it.
3,3 In 1877, Adolpb Nissen1 professor at the University of Strasbourg,
pub1ished the monograph Das Iusititum. Eine Studie a/15 der riimîsc11en
Reclttsgescfl ichte. Th\� boot which seeks to analyze a "legal institution
that has until now passed nearly unobser ved,>' is interesting for a num­
ber of reasons, Nissen is the first to see clearly tllia the usual undcrstand­
ing of the term as a "court holiday" ( Gerichtsfericn) is entirely insuffi­
dent and that, in its teéhnkal sense, it must also be distin guishe<l from
its later meaning as ''publk mourntng." Let us t:akc an c:xcmphuy ,:ase of
a iustititlm, Lhc one Cicero describes in P!Jifippics 5.12. Confr-onted with
the threat of Marcus Anton ins, whn is lea<lîng an army toward Rome,
Ciœro addresses the Senate witb these words: tumultum censeo decerni,
imtitium indici, saga sumi dico oportere (I ass:ert that it is neces5ary to <le­
dar� a state of tumultus; prodairn a iustitiwn, and dnn the doaks tsaga
sumere means roughly that the dti1,ens rnust take off thelr togas and
prepare for comhatj). Nissen readiiy demonstrates that translating iusti­
tium here as "court holiday,, would slmpîy make no sense; rathe r, it is
a matter ot� under exceptional conditions> puttlng aside the restrictions
that the Jaw imposes on the acdon of the m-agistra.tes (în particular, the
prohibitfon that the Lex Sempronio .:stublished agaînst puttîng a Roman
citizen to _death inimsu populi [without orders from the people] ). Still­
stand des Rcchtes, "stands lill and suspension of the law,"' is the formula
that, ao::ording to Nisse11 1 both defines the tcnn ii,•:,•-rttfom and tr.a:nslates
it to the lettcr, The iusti.Ùum "suspends the law and, in this ,vay, alJ legaî
prescriptions are put out of operation. No Roman citizen, ,vh,::• ther a
magistrate or a private citizen, now has lega! powers or duties" ("\lissen
18j7, 105), Nissen has no donbts ahout the aim of this ne-utrali z.ation
of the law: 1'\tVhen the law was no longer able to pt'rform its highest
46 Chapter Three
task-to guan:mlee lhe public weJfure•-the law was abandoned in favor
of expediency, and just as in situations of neccssity the magistrat.es were
rt?leased from Lhe restrictions of the law by a sen a tus cousultwn, so ü1 rhe
most extrerüe situations the law was set aside. Instead of transgressing it,
when it became harmfül it was cleared away; it was suspended through
a iustitium" (98). ln other words, accor<ling to Nissen, the iustirium re­
sponds to the same 11ecŒsity that Madùavelli unequivocally indkated
when, in the Discourses� he suggested "breaking" the order to save ît
(''Iior in a repuhlic wherc such a provision is lacking 1 one must either ob­
serve the orders and be ruined, or break them and not be .ruined" [1381),
Viewing lt from the perspective ofthe state of nCcessîty (Notfall), Nis •
sen cm thu s interpret the senatus consuftum ultimum1 the dcdaration of
tumultus, and the iustitimn as systematically connected. The consulturn
presupposcs the twnultu.s, and the tumultus if; the sole cause of the iusti­
tium. These are not catcgories of criminaI law but of constitutiona] law,
and tht:y designate "the caesura by rneans of \vhich; from the point of
view of public law. exceptional measures [Aumahmemaflregeln: may be
talœn" (Nissen 1877, 76).
� In the syntagma senatus CMISuhmn Hltimum, the term that <listînguîshcs ît
from other consulta fa obv[omly the ad,iectivc ultimus, which appears not to
have r�ri ved due attention from s(holars. That th.is lerm has a technical vnlue
1$ demo�stratec! by the fact that we fmd it repeated as a definition ofboth thesît­
t1il tion justH}'ing the rons�tltum (senat11s consultum ultimae neœssitatù) and the
vox uitima, the appeal addressed to aH citizens for the salv:ît:ion of the republk
(qui rc111 publicam ml-varc vuit, me sequatur).
Uitimm derives from the adverb uls, which me.:ms "beyond" (as opposed to
cis, "on this sidc"). The etymological meaning of ultimus is therefore "'what is
found ahsoiutely beyond, the most ex.treme."' U!timâ nrœssi'tas (rwœdo etyrno­
logically meam "I cannot go back") indicates a zone beyond whicb shelter and
safcty .,ire not possible. The scna!us conS11ltum ultiimm1 lies at such an extreme
outtr edge, but if we nüw ask ''\\'!th respect to what?" the only po8sible answer is
the jurklkal ordcr, whkh indeed gets -Suspended in the iustitiwn. In thîs sen.se,
srrta!Us ammit:1111 u!tù-1wm and iustit-ium mark the limit of the Roman consti-
tniional order.
� Mid<lell's monograph {1887}, publîshed in Latin (lhmtgh the modern authors
are cited in German), falls far short of a profound theoretical inqui_ry into the
Iusfitimn 47
problem, Tiiough, likr Nissen, he dea rly sees the tight connectîon between tu­
multus and iustitium, Middell emphasîzcs the formai co.ntrast betwecn cumul�
tus, which is decreed by the Senate, and iusrîti11m, which must be prodaîmed
by a magistrate. From this he concludes that Nisscn's thesis (the iustitium as a
total suspension of law) was excessive, for the magistrate could not inde-pen..
dently release himsdf from the restrictfon..<:: of the· laws. Thus relrnbilitatln;1 the
old intcrpretation of the iustitium as a court hollday, Midddl lets. the meaning
of thi:" instîtutio n sHp away from him. For whoever may have hecn the person
lechnically qi1alified to proclaim a iustitium, it is certain that it \Vas ahvays and
only dedared ex auctoritate patmm :on the authority of the fothersl, and the
magistrate (or mere- citizen) therefore actcd on the basis of a stale of danger
th,H authorized the suspension of the la\v,
3.4 Let us try to pin down the characteristics of the iustitium as they
emerge from Nisst.'D's monograph and, at the same time, devdop his
ana]yses toward a general theory of the state of exception.
First of aH� because it brings about a standstiU and suspension of the
enlire juridkal order, the iustitium cannot be interpreted through the
pa radlgm of dictatorship. In the Roman constitution, the dktator was
a spedfic kind of magistrate whom the consuls had chosen and whose
imperium, which was ex:tremely broad, ,,,r,1s conferred by a lex curiata
thal defined its airns. On the contrary, in the iustitium (even in the case
where it is a dktator in office w-ho declares it) , there is no creation of
a nev.r magistracy; the unl imited power enjoyed de facto by the exis.­
tent magistrates iusticio indicto [the iustitiwn having been declared] re-·
sults not from their being invested 'w ith a dictatorial impcrium, but from
the suspension of the laws that restrîcted their action. Both Mommsen
and Plaumann arc perfectly aware of this 1 and for this reason speak not
of dktatorshlp but of "quasî-dictatorship"; however, not only does the
1 1
' quasf do nothing to eliminate the arnhiguity, it in fact contributes to
the institution's being in terpreted according to a manifestly erroneous.
paradigrn.
This is equally true for the modern s-tate of exception. The confusion
of state of exception and dictatorship is the limitation that prevented
both Sdunill lJl 192.1 and Rossiter and Friedrich after \Norld \Var 'J\vo
from resolving the aporias of the state of except!on.-In both cases, the
error was self-serving, sînœ it was certainly easier to justify the &tate
48 Chapter Three
of exception juridically by inscrîbing it in the prestigious tradition of
Roman dictatorship than by restoring it to its authentic ) but more ob­
Scure, genealogical paradigm in Roman Iaw: the iustitium. From this
perspective, the state of exception is not defined as a fullness of powers,
a pleromatic state of law) as in the dictatorial model, but as a kenomatic
state, an emptiness and standstill of the law.
N , In modern public law theory, it is customary to define as dictatorships the
totalitarian states barn out of the crisis the democracîes underwent after World
War One. Thus Hitler as well as Mussolini, Franco as well as Stalin, get indiffer­
ently presented as dictators. But neither Hitler nor Mussolini can technically be
dcfined as dictators. Mussolini was the head ofthe government) legally invested
with this office by the king, just as Hitler was chancellor of the Reich, named by
the legitimate president of the Reich. As is well known) what characterizes bath
the Fascist and Nazi regimes is that they allowed the ex.isting constitutions (the
Albertine Statute and the Weimar Constitution, respectively) to subsist, and­
according to a paradigm that has been acutely defined as "dual state"�they
placed beside the legal constitution a second structure, often not legally formal­
ized, that could exist alongside the other because of the state of exception. From
a juridical stand point, the term dictatorship is entirely unsuitable for describing
such regîmes, just as, moreover, the clean opposition of democracy and dicta­
torship is misleading for any analysis of the govcrnmcntal paradigms dominant
today.
N Though Schmitt was not a Roman scholar, he nevertheless knew of the iusti­
tîum as a forrn of the state of exception ("martial law presupposed a sort of
iustitîum" [Schmitt 1921, 173]), most probably from the monograph by Nissen
(who is cited in the book on dictatorship, though in relation to another text),
Though he shares Nissen's idea that the state of exception represents "an emptî­
ness of law" (Nissen speaks of a juridical vacuum), Schmitt prefers, apropos of
the senatus consultum 11ltimum, to speak of a "quasi-dictatorship" (which sug­
gests a knowledge) if not of Plaumann's study from 1913, at least of Mommsen's
Staatsrecht).
3.5 This anomie space that cornes to coïncide suddenly with the space
o � the city is sa peculiar that it disorients not only modern scholars but
also the ancient sources thëmselves. Thus in describing the situation cre­
ated by the iustitium, Livy states that the consuls (th e highest Roman
Iustitium 49
magistrates) were in privato abditi, reduced to the state of private cit­
izens (Livy 1,9.7); on the other hand ) Cicero writes apropos of Scipio
Nasica's gesture that though a private citizen ) in killing Tiberius Grac­
chus he acted "as if he were a consul" (privatus ut si consul esset�· 1l1scu­
lan Disputations 4.23.51) . The iustitium seems to call into question the_
very consistency of the public space; yet, conversely, the consistency of
the private space is also imrnediately neutralized to the same degree. ln
truth, this paradoxical coincidence ofprivate and public ) of ius civile and
imperium, and ) in the extreme case) ofjuridical and nonjuridical, betrays
the difficulty or impossibility of thinking an essential problem: that of
the nature of acts · committed during the iustitium. What is a hum an
praxis that is wholly delivered over to a juridical void? Tt is as if when
faced with the opening of a wholly anomie space for hurnan action both
the ancients and moderns retreated in fright. Though bath Mommsen
and Nissen unequivocally affirm the iustitium's character as a juridiCal
tempus mortuum, for Mommsen there still exists a Notstandsrommando,
which he does not further i dentify, while for Nissen there remains a Be�
fehl, or "unlimited command" (Nissen 1877, 105), which is matched by
an equally unlimited obedience. But how ·can such a cornmand survive
in the absence of any legal prescription or determination?
It is from this perspective that one must also view the impossibil­
ity (cornmon to both the ancient and modern sources) of clearly dcfin­
ing the legal consequences of those acts committed du ring the iustitium
with the aim of saving the res publica. The question was of particular im­
portance, for it concerned whether the killing of an uncondemned ( in­
demnatus) Roman citizen was punishab]e or not. Apropos ofüpimius's
assassination of Caius Gracchus's followers, Cicero already describcs as
"endless" ( inftn ita quaestio) the question ofv.,rhether or not a person who
has killed a Roman citizen while acting in èxecution of a senatus consul­
tum 11Itim11111 can be punished (De oratore 2.31.134) . Nissen, for his part,
denies that either the rnagistrate who had acted in execution of a senatus
consultmn or the citizens who had followed him could be punished once
the iustitiwn was over; but he is contradicted by the fact that Opimius
was nevertheless brought to trial (though he wàs acquitted), and Cicero
was sentenced to exile as a consequence of his bloody repression of the
Catiline conspiracy.
50 Chapter Three
In trüth, the entire question is poorly put, for the aporia becomes
clear only once we consider that because they are produccd in a juddi­
cal void, the acts committed during the i11stitî11111 are radically removed
from any juridical determination. From a legal standpoint it is possible
to classify human actions as Jegislativei executive, or transgressive acts.
But it is entirely clear that the magistrate or private citizen who acts dur­
ing the iustitium neither executes nor transgresses a law, and even less
does he create law. All scholars agrce on the fact that the senntus consul­
t11m ultim11111 has no positive content; it merely expresses a counsel with
an extremely vague formula ( videant consules , . . [let the consuls see to
it . . . ] ) that leaves the magistrate or whoever acts for him entirely free
to act as he sees fit, or even not to act at all. If we wanted at all costs to
give a name to a human action performed under conditions of anomie,
we might say that he who acts during the i11stiti11m neither executes nor
transgress the ]aw, hut incxecutcs [ inesegue] it. His actions, in this sense,
are mere facts, the appraisal of which, once the iustitium is expired, will
depend on the circumstances. But, as long as the iustitium lasts, theywill
be absolutely undecidable, and the definition of their nature-whether
executive or transgressive, and, in the extreme case, whether human,
bestial, or divine-will lie beyond the sphere of law.
3.6 Let us now try to surnmarize the results of our genealogical inves­
tigation of the iustitium in the form of theses.
(1) The state of exception is not a dictatorship (whether constitu­
tional or unconstitutional, commissarial or sovereign) but a space de­
void of law, a zone of anomie in which all legal determinations�and
above all the very distinction between public and private-are deacti­
vated. Thus, all those theories t.hat seek to annex the state of exception
immediately to the law are false; and so too are both the theory of ne­
cessity as the origi nary source of law and the theory that sees the state
of exception as the exercise of a state's right to its own defense or as the
restoration of an originary plerornatic state of the law ('(full powers") .
But fallacious too are those theorîes, like Schmitt's, that seek to inscribe
the state of exception in<lirectly within a juridical context by grounding
it in the division between norms of law and norms of the realization of
law, between constituent power and constituted power, between norm
Tustitium 51
and decision. The state of necessity is not a "state of law," but a space
without law ( even though it is not a state of nature, but prescrits itself as
the anomie that results from the suspension oflaw).
(2) This space devoid oflaw seems, for some reason, to be so essential
to the juridirnl order that it must seek in every way to assure itself a rela­
tion with it, as if in order to groun d itse1 f the juridical order necess<1rily -
ha<l to maintain itself in relation with an anomie. On the one hand,
the juridical voîd at issue in th e state of exception seems ahsolutely un­
thinkable for the law; on the other, this unthinkable thing nevertheless
has a decisive strategic relevance for the juridical order and must not be
allmved to slip away at any cost.
(3) The crucial prohlem connected to the suspension of the law is that
of the acts committed during the imtitium, the nature of which seems to
escape all legal definition. Because they are neither tnmsgressive, exec­
utive, nor legislative, they seem to be situated in an absolute non-place
with respect to the law.
(4) The idea of a force-of-lawC is response to this t1ndcfinabil ity and
;:i
this non-place. It is as if the suspension of law freed a force or a rnystical
element, a sort of legal mana ( the expression is used by Wagenvoort
to describe the Roman auctoritas [\-\Tagenvoort 1947, 106]), that both
the ruling power and its adversaries, the constituted power as well as
the constituent power, seek to appropriate. Force of law that is separate
from the law, floating imperium, bcing-În••force [vigcnzn] without ap­
plication, and, more gcnerally, the idea of a sort of "degree zero" of the
law---all these are fictions through which law attempts to encompass
its own absence and to appropriate the state of exception, or at least to
assure ltself a relation with it Though these categories (just like the con­
cepts of mana or sacer in the anthropology and religious studies of the
nineteenth and tv.,re ntieth centuries) are rea lly scientific mythologemes,
this does not mean that it is impossible or useless to analyze the fonction
they perform in the lav/s long battlc o vcr anomie. Indeed, it is possible
that ,vhat is at issue in these ec1tegories is nothing less than the definition
of what Schmitt calls "the political." Th e esscntial task of a theory of the
state of exception is not simply to clarify whether it has a juridical na­
ture or not, but to define the meaning, place, and modes of its relation
to the law.

4 N Gigantomachy Concerning a Void
4.1 It is from this perspective that we will now read the debate be­
tween Walter Benjamin and Carl Schmitt on the state of exception. The
exoteric dossier of this debate, which took place in various forms and
at differing levels of intensity between 1925 and 1956, is not very large:
Benjamin's citation of Political Theology in The Origin of German Tragic
Drama; the curriculum vitae of 1928 and Benjamin's letter to Schmitt
from December 1930 (both of which attest to an interest in and admi­
ration for the "fascîst public law theorist" [Tiedemann, editorial note,
in Benjamin, Gesammclte Schriften, 1 .3: 886] and have always appeared
scandalous); and Schmitt's citations of and references to Benjamin in
his book Ham/et or Hecuba, written when the Jewish philosopher had
been dead for sixteen years. This dossier was further enlarged with the
pu_blication in 1988 of the letters Schmitt wrote to Hansjôrg Vîesel in
1973, in which Schmitt states that his 1938 book on Hobbes had been
conceived as a "response to Benjamin [ that has] remained unnoticed"
(Viesel 1988, 14; see Bredekamp's· observations, 1998, 913).
The esoteric dossier, however, is larger and has yet to be explored in
all its implications. Indeed, we will attempt to demonstrate that the first
document that must be induded in the dossier is not Benjamin's reading
of Political Theology, but Schmitt's reading ofBenjarnin's essay "Critique
of Violence" (1921). The essay was published in issue 47 of the Arch iv für
Sozialwissenschafte n und Sozialpolitik, a journal coedited by Emil Led­
erer, who was then a professer at the University of Heidelberg (and later
at the Ne,111 School for Social Research in New York), and who was one of
the people Benjamin frequented at that time. Now, not only di d Schmitt
publish numerous essays and articles (încluding the first version of The
Concept ofthe Political) in the Archiv between 1924 and 1927, but a careful
examination of the footnotes and bibliographies of his writings shows
that from 1.915 on Schmitt was a regular reader of the journal (he cites,
among others, the issues immediately preceding and following the one
Gigantomachy Concerning a Void 53
containing Benjamin's essay) . As an avid reader of and contributor to
the Archil', Schmitt could not easily have missed a text like "Critique of
Violence," which, as we will sec, touched upon issues that were essen­
tial for him. Bcnjamin's interest in Schmitt's theory of sovereignty has
always been jndged as scanchl ous (Taubes once described the 1930 let­
ter to Schmitt as a "mine that can blow to pieces our conception of the -
intellectual history of the Weimar period" [Taubes 1987, 271 ) ; turning
the scandal around ) we will try to read Schmitt's theory as a response to
Benjamin's critique of violence.
4.2 The aim of the essay is to ensure the possibility of a violence ( the
German term Gcwalt also means simply "power") that lies absolutely
"outside" (a11jlerhalb) a nd "beyond" (jenscits) th e law and that, as sucl1,
could shatter the dialectic between lawmaking violence and law-­
preserving violence ( rcrhtsrtzende 1tnd rech tserhaltcnde Gewalt ). Benja­
min calls this other figure of violence "pure" ( reine Gewalt) or "divin et
and, in the human sphere, "revolutionary." V\lhat the law can never
tolerate-what it feels as a threat \vith which it is impossible to corne to
tcrms-is the existence of a violence outside the law; and this îs not be­
cause the ends of such a violence are incompatible with l m,v, but bernuse
of"its mere existence outside the law" (Benjamin 1921, 1 83/239). The task
ofBenjamin's critique is to provc the reality (Bcstnnd) of such a violence:
"If violence is also assured a reality outside the law, as pure immediate
violence, this furnishes proof thc1t revolutionary violcnce-which is the
name for the highest manifestation of p ure violence by man-is also
possible" (202/252). The proper character'is tic of this violence is that it
neither makes nor preserves law, but deposes it (Entse tzung des Rechtes
[202/251-52] ) and thus inaugufates a new historical epoch.
Benjamin does not name the state of exception in the essay, though
he does use the term Ernstfall, which appears in Schmitt as a synonym
for Ausnahmezmtand, But another technical term from Schmitfs vo­
cabulary is present in the text: Entsrheidung, "decision." Law, Benjamin
writes, "acknowledges in the 'decision' determined by place and time a
metaphysical category" (Benjamin 1921, 189/243); but this acknowledg­
ment is, in reality, only a counterpart to "the curious and at first dis­
couraging experience of the ultimate undecidability of all legal problems
54 Chapter Four Gigantomachy Concerning a Void 55

[ die seltsame und zuniichst ent11111tgende Erfahrung von def lctzlichen Un­ not be recognized as such by means of a dedsion (.Entscheidung [Ben�
entscheidbarkeit aller Rechtsprobleme] " (196/247) , jamin 1921, 203/2521 ), so too for Schmitt "it is impossible to ascertain
with compkte clarity when a situation of necessity exists, nor can one
4,3 The theory of sovereignty that Schmitt develops in his Politien/ spell out, with regard to content, what may take place in such a case
Theology can be read as a predse response to Benjamin)s essay. While when it is truly a matter of an extreme situation of necessity and of
the strategy of "Critique of Violence,, was aimed at ensurîng the ex­ how it is to be elirnim1ted" (Schmitt 1922, 9/6-7); yet ) with a stratcgic
istence of a pure and anomie violence, Schmitt instead seeks to lead inversion, this împossibility is precisely what gro unds the necessity of
such a violence back to a juridical context. The state of exception is the sovereign decision.
space în which he tries to capture Benjamin's idea of a pure violence
4.4 If these premises are accepted> then the entire exoteric debate bc­
and to in scribe anomie within the very body of the nomos. According to
twcen Benjamin and Schmitt appears in a new light. Benjamin's de­
Schmitt, there cannot be a pure violence-that is ) a violence absolutely
scription of the baroque sovercign in the Tra11crspiclb11rh can be read
outside the law-because in the state of exception it is induded in the
as a response to Schm itt's theory of sovereignty. Sam Weber h as acutely
law through its very exclusion. That is to say, the state of exception is the
observed how Benjc1min's description of the sovereign "diverges ever
device by means of which Schmitt responds to Benjamin's affirmation
so slightly, but significantly, from its ostensible theoretical source in
of a wholly anomie human action.
Schmitt" ( Weber 19921 130 ) . The hc1roquc concept of sovereignty, Ben··
The r�lation betwecn these two texts, however, is even doser than
jamin writes ) "develnps from a discussion of the state of exception> and
this. We have seen how in Political Theology Schmitt abandons the dis­
makes it the most important function of the sovereign to exclude this"
tinction between constituent and constituted power, which in the 1921
(den rmszmrhlief,en [Benjamin 1928, 245/65] ). ln substituting "to ex­
book had grounded sovereign dictatorship) and replaces it with the con­
clude" for "to decide," Benjamin surreptitiously alters Schmitt's defini­
cept of decision. This substitution acquires its strategic sense only once
tion in the very gesture ,vith ,vhich hc clc1ims to evoke it: in deciding on
it is seen as a countermove in response to Benjamin's critique. For the
the state of exception, the sovereign must not in some way includc it in
distinction between lawmaking violence and law-preserving violence­
the juridical order; he must, on the contrary, exclndc it, leave it outside
which was Benjamin's target---corresponds to the letter to Schmitt's op­
of the juridical order.
position; and it is in order to neutralize this new figure of a pure violence
The meaning of this substantial modification becomes clear only in
removed from the dialectic between constituent power and constituted
the pages thc1t foll ow, wh ere Benjamin elahorates a true and proper the­
power that Schmitt develops bis theory of sovereignty. The sovereign vi­
ory of "sovereign indecision"; but this is precisely where the interweav­
olence in Political Theology responds to the pure violence ofBenjamin)s
ing of reading and counterreading becomes tighter. While for Schmitt
essay with the figure of a power that neither makes nor preserves law, but
the decision is the nexus that unîtes sovereignty and the state of excep­
suspends it. Similarly, it is in response to Benjamin's idea of an ultimate
tion, Benjamin ironically <livi des sovereign power from its exercise and
undecidability of all legal prohlems that Schmitt affirms sovereignty as
shows that the baroque sovereign is constitutively incapable of deciding.
the place of the extreme decision. That this place is neither external
nor internai to the law-that sovereignty is, h1 this scnse, a Grcnzbegrijf The antithesis betwccn sovereign power [ Herrscherrnach t ] and the
[limit concept J.-is the necessary consequence of Schmitt's attempt to capacity to exercise it [HerrschvcrmOgcn] led to a feature pcculiar
neutralize pure violence and ensure the relation between anomie and the to the Trauerspiel which is, hmvcver, only apparently a generic fca­
juridical context. And just as pure violence, according to Benjamiri, can- ture and which can be illuminated only on the basis of the theory
56 Chaptcr Four
of sovereignty. This is the tyrant's inability to decide [Entschluflun­
fiihigkeit] . The sovereign, who is responsible for making the deci­
sion on the state of exception, reveals, at the first opportmüty,-that
it is almost impossible for him to make a decision:' (Benjamin 1928,
250/70-71)
The division between sovereign power and the exercise of that power
corresponds exactlyto that between norms oflaw and norms of the real­
ization oflaw, ,vhich in Dictatorship was the foundation of comrnîssarial
dictatorship. In Political Thcology Schmitt responded to Benjamin's cri­
tique of the dialectic hetween constituent power and constituted power
by introducing the concept of decision, and to this countermove Ben­
jamin replies by bringing in Schmitt's distinction between the norm and
its realization. The _sovereign, who should decide every time on the ex­
ception, is precisely the place where the fracture that <livides the body
of the law becomes impossible to mend: between Macht and Vcrmiigc11,
between power and its exercise, a gap opens which no decisîon is capable
of filling.
This is why, with a further shift) the paradigm of the state of exception
is no longer the miracle ) as in Politirnl Thcology, but the catastrophe. "In
antithesis to the historical idea of restoration, [ the baroque] is foced with
the idea of catastrophe. And it is in response to this antithesis that the
theory of the state of exception is devised" (Benjamin 1928, 246/66)
An unfortunate emendation in the text of the Ges(lmmclte Schriften
has prevented all the implications of this shift from being assessed.
Where Benjamin's text read, Es gibt eine btirocke Eschatologie, "there
is a baroque eschatology," the editors, with a singular disregard for all
philological care, have corrected it to read: Es gibt keine . , . , "there is
no baroque eschatology" (Benjamin 1928, 246/66). And yet the passage
. that follows is logically and syntactically consistent with the original
reading: "and for that very reason [ there is l a mechanism that gathers
and exalt-s all earthly creatures bcfore consigning thcm to the end [dem
Ende] ." The baroque knows an eskhaton, an end of time; but, as Ben­
jamin immediately makes clear, this eskhaton is empty. It knows neither
redemption nor a hereafter and remains immanent to thîs world: ''The
hereafter is emptied of everything that contains the slightest breath of
Gigantomachy Concerning a Void 57
this world, and from it the baroque extracts a profusion of things that
until then eluded all artistic formulation . . . in order to clear an ulti­
mate heaven and enable it, as a vacuum, one day to destroy the earth
\Vith catastrophic violence" (246/66).
It is this "white eschatology"--which does not lead the earth to a r':­
<leemed. hereafter1 but consigns it to an absolutely empty sky-that con­
figures the baroque state of exception as catastrophe. And it is again this
white eschatology t.hat shatters the correspondence between sovereignty
and transcendence, between the monarch and God, that defined the
Schmittian theologico-politicaJ. While in Schmitt '(the sovereign is iden­
tified with God and occupies a position in the statc exactly analogons to
that attributed in the workl to the God of the Cartesian system" (Schmitt
1922, 43/46), in Benjamin the sovereign is "confined to the world of cre­
ation; he is the l ord of creatures, but he remains a creature" (Benjamin
1928, 264/85).
This drastic redefinition of the sovereign fonction implies a different
situation of the state of exception. It no longer appears as the thre· shold
that guarantees the articulation hetween an inside and an outside, or be­
tween anomie and the juridical context, by virtue of a law that is in force
in its suspension: it is ) rather, a zone of ahsolutc indeterminacy between
anomie and law, in which the sphere of creatures and the juridical order
are caught up in a single catastrophe.
4.5 The decisive document in the Benjamin-Schmitt dossier is cer­
tainly the eighth thesis on the concept of hlstory, composed by Ben­
jamin a few months before his death. Here we read that " [t]he tradition
of the oppressed teaches us that the 'state of exception' in which we live
is the rule. We must attain to a concept ofh istory thJt accords wfrh this
fact. Tben we will clearly see that it is our task to bring about the real
[ ivirklich] state of exception, and this will improve our position in the
struggle against fascism" (Benjamin 1942, 697/392) .
That the state of exception has become the rule is not a simple
intensification of what in the Tmuerspielb11ch appeared as its undecid­
ability. One must not forge! here that both Benjamin and Schmitt had
before them a state-the Nazi Reich-in which the state of exception
proclaimed in 1933 had never been repealed. From the jurist's perspec-
58 Chapter four
tive, Gerrnany found itself tcchnically in a situation of so_vereign dicta­
torship, which shonld have led to the defin itîve ahol.ition of the VVeïmar
ConStitution and the establishment of a new constitution� whose fun�
damental charncteristics Schmitt strove to define in a series of articles
bctwce11 1933 and 1936. But what Schmitt could în no way acœpt 'Was that
the stute of exception be wholly confused with the ruk. ln Dictatorship
he had already stated tlrnt arriving at a correct concept of dictatorship is
impossible as long as every lcgal order is_scen "only as a latent and inter­
mittent dictatorshlp'' (Schmitt 1921 , xiv). To be sure, Political Thcology
unequivoc;,,lly acknowledged the primacy of the exception, însofar as
it makes the con stitution of the normal sphere possible; but H: in th!S
sens<:i the rule "lives ouly by the exception" (Schmitt 1922, 15/15), '<V'hat
then happens whcn exception and iule hecmne undecid,tble?
From Schmitt\; perspective, the functioning of the juridical order ul­
timù tely rests on <1n apparalus�the sta te of exceptio n-,vhose purpose
is to- make the norm appl icable by te:mpora dly suspending its eflî.cacy,
When the exception becomes the rulc, the machine eau no longer fonc­
tion. In this sen se, the undcddability of norm and exception fonnulated
in the eighth thesis ruts Schmitfs thcory in check. Sovercign dcdsion is
no longer capable ofperformfog the task that Political Thealogr assigned
ii: the rule, whkh now coincides 'With what it lives by, devours itself. Yet
this confusion hetwecn the exceptlon and the rnle was precisely what the
Third Reich had concretely brought about, and the obstinacywith which
Hitler pursued the organization of hîs "dnaI state" wi thout prnmulgat­
ing a new cons1itution is proof of it. (In this regard Schmitf's attempt to
de:tine the new nrnkrial tl.!fatlon betwcen the Führer and the peop1e in
the Nazi Reich was destined to fail.)
It is frorù this perspective that Benjamin's distinction în the eighth
thesis between real state of exception and state of exception tout court
should be read, The distinction was 1 às we have seen, alread-y present in
S(hmitfs discussion of dictatorsl1ip. Schmitt borrowed füe tern1 from
Theodor fü>inach's book De l'état de siège, but while Reinach, referring
to Napoleon's decree of Deœmber 2,1, 1S1 1, opposed an Üût de siège
effertif(or military) to an état de siège fictif (or political), Schmitt, in
bis lenaciûus critique of the lega] state f Stato di diritto J, gives the name
Gigantomud,r Concemîng a Vo.id 59
"fictitious" to a state of eJcceplion that woul<l be regulated by law, with
the aïm of guaranteeing some degree of indfvidual rlghts and liberties.
ConsequentJ y> he forcefully denounccs the \-Veimar jurists' inability to
distinguish between the merely foctua1 action of the president of the
Reich under Article 48 and a procedure regulatcd by Jaw.
Benjamin once again reformt1hi tes the oppmitfon in order to tum
it back against Schm itt Xov1 tha1 nny possfüîJity of a fktitlous state of
exception-in wh kh exœption and normal coridirions are temporaHy
and !ocally distinct- --has collapscd, the state nf e�œption ".in which we
live" is real and ahsolutely canno1 he distînguished from the rule. Every
fiction of a nexus bctween violence an<l law disappears here: there i.s
nothing but a zone of anomit\ in •.vhkh a vio1cnœ without .iny juridical
form acts. The attempt of state power to ;m nex anomie through the sfute
of exception is unmasked by Be njamin for what it is: a fictia iuris par
exceJlence, whkh daims to maintn in the law in its v,;-ry suspension as
forœ�oi\)��- What now takes its place are civil war and revolutionary
violence, that is, a hum an action that has shed f dep()sfo} evcry relation
to law.
4.6 The stakes in the debate between Benjamin and Schmitt on the
state of exœptînn can now be defin,:,d more cle.i rly. The di-spute takes
place in a zone of anomie that, on the one hand must be nrnintaîne(i in
rdatkm to the law at aU costs and, on the other, must be just as ünpla­
cably relcased and freed from this relation. Th at is to say1 at issue in the
anomie zone is the relation betweèn violence and law-in the last anal­
ysisJ the status of violence as a dpher for hurnan action. \Vhile Schmitt
attempts every time to reinscribe violence \,\'ithin a juridicnl context,
BenJamin responds to this gesture by St.�cking every titne to assure it-as
pure violence-an exi stence outside of the law,
For reaso11S that we nmst try to dnrify> th i� ,') trnggle for anomie seems
to be as decisive for Western politks as the gïgnn tom(lchia peri tés ou­
sias, the "bart!e of gümts conœrning b�·lng,1' t.hat defines \Veste-ru mda­
physics. tlere, pure viülence as th e extreme political object, as the
"thing" of politics, is the counterpart to pure bcing, to pure existence
as the ultimate metaphysical stakes; the strategy of the exception , wh ich
60 Chapter Four
must ensure the relation between anomie vîolenœ and law, is the coun­
terpart to the onto-theo-logical strategy aimed at capturing pnre being
in the meshes of the logos.
That is to sa.y; everyth ing happens as îfbüth law and logos needed an
anomie (or alngica] ) zonè of suspensîon in order to ground theît ref­
crence to the workl of life. Law seems able t_o subs-ist only by capturing
anomie, jusl as languagc can snhsist only by grasping the nonlinguistic.
In both cases, the contlic,t seems to conœrn an empty space: on the one
hand, anomie., ,iuridkal vacuum 1 and, on th e other, pure being, devoid
of any deter111ination or real predicate, For law, this empty space is the
state of exception as fts constîtutive dimension. The relation between
norm and renlity involves the suspension of the norm, just as in ontol­
Of:>'Y the relation between language an4 world involves the suspension of
denotation in the fonn of a longue, But just as essential for the juridical
ol'<ler is lhat this zone---wherein Hes a human action wïthout relation
to the norm--colnddes with an extreme and spectral figure of the law,
in which law splits in to a pure being- in-forcc fvigenza] ivithaut appli­
1
cation (the form of law) and a pure application without being in force:
tlle for,ce-c,f-Jl�,
If thls is trne 1 then the structure ofd1e state of exception is even more
cômp)ex than what we have glimpsed of it up to now1 and the positions
of the two sicles that strugg]e in and for it are even more tightly wo­
ven lnto each other, And jnst as the victory of one player in a sporting
match 1s not somcthing Hke an originary state of the game that must be
restored, but only the stake of the game (which dœs not preexist it, but
rather results fmm it) , so pnre violence (which is the name Benjamin
gives to human action that neither makes nor preserves law) is not an
originary figure of human action that at a certain point is captured and
inscribe<l wlthin the juridical order (just as there is not, for speaking
man, a prelinguistlc reality that at a certain point falls into language). lt
ÎS; rnther, only the !':take in the conflict over the state of exception, what
results from it and, in this way only, ls s11pposed pr.ior to the law.
4.7 lt is therefore all the more important to understand correctly the
meaning of the expressîon reine Geivait, "pure violence;' as the essen­
tial tecllnical term of Benjamin's essay, What does "pure" mean here? ln
Gigtrntom<1chy Corwemirlg a Void 6t
January 1919 {that is, about a year before draftîng the essay) Ilenjamin 1
in a letter to Ernst Scboen t.hat takes up and develops moti fs alrcady
elaborated in an artide on Stîfteri carefully defines what he means by
"purity" (Rcinheit):
lt is a mistake to postulate anywhere a purity that exists in itself and
needs only to be preserved. . . , The purity of a bdng is never uncon­
ditiomil or absolute; it is always suhject to a condition. This condition
varies according to the being whose purity is at issnej but this cnn­
diti0,n never inheres in the being itself. In other 'Nords: the purity of
every (finlte) being Ü; not dependent on itseîf. . . , For na ture, hu�
man language îs the condition of its purity that stands outside of it.
(Benjamin 1966, 2061!38)
This relational rather than suhstantial conception of pu rity îs so cs­
sentfal for Benjamin that again in the 1931 essay on Kr.ms he èan write
that "at the origin of the creature stands not purîty [Rei11htitJ but pu­
rifkatîon r Reinigung] " (Benjamin w31, .365/455). This me;ms tlrnt the
pmi1y at issue in the 1921 essay is not a substantîal characteristic beiong­
ing to the vioknt action in îtsdf; that îs to say, the d.iffcrencc between
pure violence and my thico-juri<llcal violence àoes not lie in the violence
it,;;elf, but in its relation to something externaL Benjamin firrnly states
what this external condition is at the beginning of the essay: "The task
of a critique of vl(,lencc can be s11mmarized as that of expou-nding its re­
lation to law and justice." Even the criterion of the "purity" of violence
will therefore lie in its relati-on to lav1.• (and the topic of justice in the essay
is, in fact, discmstd only in rcfotion to the ends of law).
Benjamin's thesis is tbat while mythico-,iuridical viol ence is ahvays à
rneans to an en<l 1 pure violence is ncvcr simply a.means--•-whether iegiti­
mate or illegitimatc--to an end (whether just or unjust J The critique of
violence dof:'s not evaluate violence- in relation to the ends that ît pnrs.ues
as a me8ns 1 but seeks its ..:ri terion ''in a dl:'i-tinction vvithin the sphere of
me8 ns themselves, without regard for the ends they serve" (Benjamin
1921, 179/236).
Here appears the topic-,vhkh flashes up in the text only for an in­
stant1 but is neverthdess sufficient to i1lumina!'e the entire piece--of
62 Chapter Four
violence as "pure medium;' that is, as the figure of a paradoxical "me­
dialitywithout ends"-a means thêlt, though rernaining such, is consid­
ered independently of the ends that it pursues. The problem, then, is not
that ofidentifyingjust ends but that of"individuating a different kind of
vîolencé that certainly could not be either the legitirnate or illegitirnate
means to those ends but is not related to them as means at all but in
some different way [ nicht als Jvfittel zu ihnen, viclmchr irgendwie anders,
sich verhalten würde]" (Benjamin ,921, ,96/247) .
What can this other type of relation to an end be? It will be useful
to apply the consideratîons that we have just developed conccrning the
meaning of Benjamin's term "pure" to the concept of "pure" medium
as well. The medium does not owe its purity to any specific intrinsic
property that differentiates it from juridical means, but to its relation
to thern. In the essay on language1 pure language is that which is not an
instrument for the purpose of communication, but communicates itself
immediately, that is, a pure an<l simple communicability; likewise, pure
violence is th at which does not stand in a relation of means toward an
end, but holds itself in relation to its own medial ity. And just as pure
language is not another language, just as it does not have a place other
than that of the natural communicative languages, but reveals itself in
these by exposing them as such, so pure violence is attested to only as
the exposure and deposition of the relation between violence and law.
Benjamin suggests as much imrnediately thereafter, evoking the image
of violence that, in anger, is never a means but only a man ifestation
( Manifestation). Wh ile violence that is a means for ma king lmv never de­
poses its own relation with lmv and thus instates law as power (Macht),
which remains "necessarily and intimately bound to it" (Benjamin 1921,
1_98/248), pure violence exposes and severs the nexus between law and
violence and can thus appear in the end not as violence that governs or
executes (die schaltende) but as violence that purely acts and manifests
( die waltende). And if the connectfon between pure violence and ju­
ridical violence, between state of exception and revolutionary violence,
is thus made so tight that the two pfoyers focing each other across the
chessboar<l of history seem always to be moving a single pawn-force­
of.-Jm( or pure means-what is nevertheless decisive is that in each case
Gigantonrnchy Concerning a Void 63
the criterion of their distinction lies in the di ssolution of the relation
between violence and law.
4.8 It is from this perspective that we m11 st read Benjamin's statement
in the letter to Scholem on August 11 1 1934, that "the Scripture without
its key is not Scripture, but life" (Benjamin 1966, 618/453), as well thè
one found in the essay o n Kafka, acC:ording to which "[tl he law which
is studied but no longer practiccd is the gate to justice" (Benjamin 1934,
437/815). The Scripture (the Torah) without its key is the cipher of the
law in the state of exception, which is in force but is not applied or is
applied with ôut beîng in force ( and which Scl1olem 1 not at all suspccting
that he shares this thesis with Schm itt, believes is sti11 lJw) . According to
Benjamin, this law-or, rather, this force-of.-]:m(--is no longer law but
life, "life as it is lived;' in Kafka's novel, "in the village at the foot of the
hill on wbich the castle is built" (Benjamin 1966, 618/453). Kafka's most
proper gesture consists not (as Scholem believes) in having maintained
a bw thot no longer bas any meaning, but in h ,nring shown that it ceases
to be law and blurs at all points with life.
In the Kafk:a essay, the enigmatic image of a law that is studied but no
longer pr;:1cticed corresponds, as a sort of remnant, to the unmasking of
rnythico-juri clical violence e ffectecl hy pure violence, There is, therefore,
still a possible figure oflaw after its nexus with violence and power has
been deposed, but it is a law that no longer has force or application, like
the one in which th e "new attorney," leafing through "o ur old hooks;'
buries himself in study, or like the one that Foucault may have had in
mind when he spoke of a "new law" that has been freed from all disci­
pline and all relation to sovereignty.
\Vhat cm hc the meaning of a law that survives its deposition in such
a way? The difficulty Benjamin faces here corresponds to a problem that
can be formulated (and it was effectively formnlated for the first time in
primitive Christianity and then lat.cr in the Marxian tradition) in these
terms: V\That becomes of the law after its messinnic fulfillment? (This
is the controversy that opposes Paul to the Jews ofhis timc.) And what
becomes of the law in a society withot1t classes' (This is precisely the de­
bate between Vyshinsky and Pasbukanis.) These are the questions tbat
64 ChaptcT Four ·
Benjamin seeks to·answer with his reading of the "nciv attorney."' Obvi�
ously1 it is not a question here of :1 transition:11 1,hasc that ncvt'r achieves
its end:. nor of a _process of infinite deconstruction th.it) in maintain­
ing the law in a spectral Ufe, QUl no longer get to the bottom of it, 1lu:
dedsîve point here is that the law-no longer prn.ctiœd, but stuJled­
is not justkej but only the gate that leads to ît \Vhat opens a passage
tow�ird Justice is not the erasure oflaw, hut its d-eactivation and i nactivity
(înoperosîtà ]�that is> another use of the lave This is prcciscly i,.vhat the
force-of]àv( ( whkh keeps the lawworking [ in opera] beyond its formal
suspension) seeks to prevcnt Kaika\-; characters-and this îs why they
interest us-have to do with this spectral figure of the law in the state
of exception; they seek, each one following hîs or her own strategy, to
"study" and deactiv;1tc it, to "play" with it.
One day humanity will play with law Just as children pfay with dis�
used objectsi 1101 in order to reston.: them to their canonial use but to
free them from it for good. \'\11lat i.s found after the law is not a more
proper ar:d orig.inal use value that precedes the law, but a new use that îs
born only after it. And usel which has been contaminated by law, must
also be freed from its own value. 1111s lfüeration is the ta.sk of stud)\ or
of pby. And this stu<l ious play is the passage that allows us to arrive at
that justice that one ofBenjamîn's posthumous fragments defines as a
state of the world in which the world appears as a good that absolutely
cannot be appropriated or made juridical (Benjamin 1992, 41).
5 � Feast, Mourning, Anomie
5.1 Roman scholars and leg;1} historians have not yet been able to find a
satisfactory ex:p lanatîon for the pecnliar semantic evolution that le&the
term imtitiwn-the technkal designation for the state of exception-lü
acquire the meaning of public monrning for the death of the sovereign
or hîs close relative, Indeed, v.'1.th the end of the Republk1 iustitimn
ceased to me,m the suspension oflaw in order to cope ,vith a tumul1 and
the nev..• meaning replaccd the old one so perfectly that even the mernory
of this austere institution seems to have entlre!y vanished , At the end
of the fourth œntury CE> the grammarian Charisius could therefore
îdentify the iustitium purely and simply with luctt1s puMiws, And it is
significa nt tbat after the dehate raîsed by Nïs sen's ,md Mî<ldell's mo.no­
graphs, modern schofars have disrcgatded the question of the iu.stiti11111
as the state of exœption and have concentrated solely on the iustitiùm
as pubtk mourning. (Ironical]y evoking the term)s old meaning in his
study of G_ennanicus's füne ral, \V!lliam Seston wmte, "the debate was
rather lively, hut soo n nohody thought about it any more,, [Seston ·, 962>
155J.) But" how did this term that was used in public lfnv to desiguate the
suspension of law in situa tions of the moM extreme political necessity
corne to assume the more anodyne rneaning of a funeral œremony for
a death in the family?
ln an extensive study publîshed in 1980, H. S, Versnel attemptt•fl to
answer this question hy proposlng an nnalogy het ween the phenomc·nol­
ogy of monrrùng-as attested to in the most diverse places by anthro­
pologie.al rescarch-and periods of politkal crisis, in whkh social in­
stitutions and rules seems sudc1enly to dissolve. Just t1s1 1.foring periods
of anomie and crisis, normal soda} structures can collapse and social
functions and roles break down to the point where culturally condi­
tioned l�ehaviors and customs are completely overtnrned; so arc peri­
ods ofmourning usuallr -charnctedr.cd hy a suspension and alteration of
all social relations. "\:v'b.oever characlerizes the critic1l periods as . . . a
66 Chapter Five
temporary substitution of order by dis.orde1\ of culture by naturel of kos­
mos by �haos, of nomos by physis,. of etmomia by rmornia, has irnplidt!y
charactedzed the perlod of mourning and its manifestations" (Versnel
1980> 584--85) . According to Versnel i who here cites the analyses of the
A1nerican sociologists Berger and Luckman 1 "All sodetics are construc­
tions jn the face of drnos. The constant possibfüty of anomie terror îs
actualized whenever the fogitimations that obscure the pre.cariousnèss
are threatened or coHapse" (585).
Here, not ouly Js· the iustitium's evolution from the sta.te of exception
to public mournjng explained by the n:sembhmœ berureen the man­
ifestations of moumtng and those of anon.1ie ( which simply begs the
question), but the ultima te reason for this resemblance is then sought
in the idea of an "anomie terror" said to cbaracterize human sodetfos
as a whole. Such a concept (which is as inadequate to account for the
spedfic:ity of ù1e phenomc-non as lvfarhurg thrology's tremendum and
numinoswn we-re- to orient a çorrect underSta.nding ofthe divine) refers,
in the last analysis, to the darkest spheres of psychology;
TI1e total effocts of mouming ( especially for a ehief or king) and the
çomplete phèuomenoiogy of cyclkal tmnsitional- feaSts. . . . conform
completdy lo the definitîon of anomy, . . . fEJ veryv.'here there is a
(temporary) reversai of the human to the non-human, the cultural
to the natural (viewed as i1s negative con1ra:,t) ) of kosmos to chaos and
ofeunomyto anomy, , . . The feelings ofgriefand disorientation and
their individu al and collective expressi'ons arc not restricted to one
culture or to one type of cultural pattern. Apparently they are intrïn­
sic features of humanity and the human conditîon, which manifest
themselves ahove all in marginal or liminal situations, I would1 there­
fore, gladly agree with V, W. Turner1 who) speaking of"unnatural-or
rather) anti-cultural or anti-structural-•-events" în liminal situations,
suggests that "perhaps Freud and Jung 1 in their different ways, have
much to contdbute to the under:standîng of these nonlogical, non ­
rational (bul not irrational) aspects of liminal sîtuatîons." (Versnel
1980, 604·•5)
N In this neutrnlizatù:m of the juri<licul spediîcî ty of the -iustitiw-n by means of
an uncrhical psycbologistk tedu,;;tion, Versnel had heen preœded by.Durkheim,
\
Fea,;1, M(rnming, Anomie 67
who in his nmnograpb entitled Suicide (1:8:97) had introduœd the concept of
anomie into lhe hmrnm sciences. ln out the category of "anomie sn1-
chle" alongside the other forms of s1.1kide1 Durkheim 1H,d cst2blîshcJ a corn:-­
lation between the dhninution uf society's regul:1tlve influence on indivlduals
and a rise in the suicide rate. This WilS hmtamO Lmt to postulating (.as he doe_�
without providing any e-xplanation) a need nfhuman hdngs to be regulated in
their activities and passions: "What is ch:irncterislic of man is to_ he sub_ie...,i: to
a restrnilit that is not physio1f bnt moral; that is1 social, , . . But when a society
is distnrbe-d by some painful crisis or by beneficent bnt flhrnpt transitions, iî
fa rnomentarily incapnbk of exercising this influence; thence corne the sudden
:rises in the cmy2 of suî ...-ides whkh we have pointed out. , . , Anomie-, therefore,
fa a regufar and spedfü: factor in suicide in our modem sodetîes." (Durkheim
1,-897, :279-8Sh52-5S).
Thus, not only is the behv-een ano1rôe and anxiety taken for
grnnted (white, :as we will see, et!U;vk,gkal and folklnüstic rcsearch shùw tht
contrary), but the possibfüty that anomie has a more inbma:tr and complrx re­
lation to law and the social order îs also rulcd out in adv,mcc.
5.2 Equally inadequate are the <:ondusions of the study published by
Seston a fow years 1ater. The atlthor seems to be aware of the possible
politkal significance of the iustftium as public mourning, insofar as he
stage,s and drnm:atî:r,ç:s the funeral of the sovereign as a state of exception :
"In irnperfal funcrals there survives lhe mcmory of a mobilization . . . .
Framîng the fnucrary rites with!n a sort of general mobilization, with
all civil affairs stopped and normal politkal Hfo s'uspende<l, the procla­
mation of the iu::titiwn tended to trnnsform the dea th of a man înto a
nalional calastrophe t a <lrama in which each person was involved, will­
ingly or uotn (Seston 1962, 171,-71). This intuition, however, cornes to
nothfng, and the nexus between the nv-o forms of imtitium fa accounted
for by once presupposing that which was to be e:xpJained> that is,
an element of mourning implidt in the iustitlum from the start \ 172-73).
Jt is Augusto Fraschetti's achievement to have underscored, in his
nwnograpb on Augustus, the politirnl significancé of publk mounùng,
shn\vi.ng tirnt the link between the two aspects. of the iustitiurn lies not in
a presun1cd character of mourning in C'Xtreme situations or anomie but
in the tumult tha l the sovereign's fün eral eau cause, Fraschetti recov­
crs its origïns in the violent l'iots that had accompanied the funerals
68 Chapter Five
'
!\
,,
of Cacsar, which were si gnificantly described as "seditious funerals"
(Fraschetti 1990, 57). Just as the iuslitium \\11lS the n,ltural response to
tumult in the Rt:pnblican era 1 "ît is clear how the ü.stitium cornes to be
îdentified with public mournîng through a similar strategy, by wh kh
the deaths in the dmnus Augusta are likened to civk catastro phes. , . .
The upshot of this is tlrnt the bona and the ma/a of a single family corne
to be the rnncern of the res pub!ica" (57). Fraschetti readily shows how,
in conformity with this strategy, Augustus, beginning with the death of
his nephe\v Marœll us, \vould prodaim n iustitium ev1:ry1îme the family
mausoteum was opened.
It is œrtainly possible to see the iu.stitium (in the sense of public
morningî as nnthing ot,her than the sovereign's attempt to appropri­
ate the state of exception by trnnsforming it into a family affair. But the
connection JS even more intimate and complex.
Takei for example, Suetonius>s famous description of Augustus's
death at Nola on August 19 of the year 14 CE. The oid sovereign1 sur­
rounded byfriends and courtiers, has a mirror brought to him and) after
having his ha.lr çombed and hîs s.agging cheeks made up, seems solely
concerned to know Whether he has acted the mimus vitae:, the "farce of
his life,i' well. And yet, <tlongs.ide this insistent theatrical metaphor, he
stubborn1y and ahnost insolently continues to ask (identidem CXtJuir­
cn•;)--with what is not simplya pohtical metaph◊r-an iam dr. se tumul­
tusfôrisfuisset1 ''if there wa'i now a tumult outsidc that conœrned bim.1'
The correspondence betv..een anomie and monrning becomes compre­
hensiblc only in the li ght ofthe correspondenœ between the death ofthe
soveretgn and the state of exr.ep tion, The original nexus betv✓een twtml­
tus and iustitiwn is stm present, but the tumuit now coinddes '\vith the
dealh of the sovereign, while the suspension of the law is integrated into
the füneral œremony. lt is as if the sovereign, who had absorbed into his
"august"' person all exo:ptional powers (from the tribunicîa potestas per­
petua [perpetual trilmnkial power] t0 the imperim11 proconsolarc maius
et infinitum [greater and endless proconsular imperi11m ] ) and who had,
so to speak, become a thring iustitium, shoWed bis intimate ,momie char­
acter al the moment of his death and saw tumult and anomie set free
outside of him in the city. As Nissen had intuited in a limpid formula
( which is perhaps the source of Benjamin's thesis according to which
the state of exception has become th-: ru]e) i '"c::xceptional measure'i dis­
appeared because they 1rnd bccome the rui,/' (Nissen 1877, 140). The
constitutional novehy of the prindpatc can ùms be secn as an in corpo­
ration of the state of exception and anomie directly into the person of
the sovcreign, ·who begins to free himself from atl snhordination tû th�
1aw and asserts himse.lf as legihus :iti!utus [ t1 nhonnd by the laws] ,
5.3 The intimately anomie nature of tbis new figu re of supreme power
appears dearly in the theory of the sovereign as '1livïng law" ( nMnM
empsukhos), which îs ebbo-rated among the neo-Pythagoreans Ü:'l the
same years that see the risc ofthe principate. The formub hnsileus nanws
emp5ukhos is fourni in Dîotogtm!-s's treadse on sovcrcignty, which was
partially preserved by Stobaeus and 'Whose rdrvanœ to the origin of the
modern theory of sovereignty must not h12 nnderestimated, The usual
phi1o1ogical myopia has preven lcd the modern editor of the trcatise
from seeing the obvious logicàl connection between this formnfo and
the, anomie character of the sovereign; even though this connection is
uncqnivncaUy stated in the text. The passage in questlon-corrupt in
part, yet nevertheless perfecdy ronsistent-is divided Jnto th rec point-;:
(1) "The king is the most just [ dikaioMtcs I and the most is the most
legal l nominuîtatos! ." (2) "\Ali thout jmttîœ no one can be king, but jus­
tice îs without Jaw f rmr:·11 11011wu dHmfostmP; Ddt11te's propos"�d insertion
of the negative before dikaiosune is totatly un}ustified phUologîcallyJ ,"
(3) ,;(The just is legitimate, and the king, having become the cause of the
just, is a living law" (L, Delatte 1942, 37),
That the sovereign is a living law can only mean that he is not bonnd
by it, that in bim the life of the lavv coincides with a total anomie. Dioto••
gencs explains this a little 1ater with uneqnivocal darity: "Bcc:aust� the­
king has an irresponsihle power [ a-rkhnn m111pctit.l11mon 1 and is himsclf
a living lawi he is Hke a god among me1l' (L. Delatte 1942, 39), And yct)
predsely hecause he is iden Lîfied with the la\:v, he is hdd în refation lo
it and is indeed posited as the anornic fonnùation of the juridkal or<ler.
Thç identification bet\veen s.overcign and law repn:sents; that is, tbe first
attempt to assert the anomie of the sovereign and, at the same tim;:, bis
essential link to the juddicai order, The nomos cn,p,·ukllos îs the orig­
inal form of the nexus that the state of exception estabHshes betweeo
 70 drnpkr Fivc
an outside and an inside of the law, and in this sense it constîtutrs the
ar,,::het ype of the modern theor y of sovereignty.
The co1rresp<m<J er1ce bctween iustitimn and mourni ng shows lts tnw
rneanjng hcrc, If the sovereign is a living nomos, and if1 ,for this reasoni
anomie and 11m11os· perfoctly coinddc in bis person 1 then anarchy (whkh
threatens to loosc itself in thcdty upon the sovereign's dealh, which is to
s<1 y, whcn the nexus that joins it to the law is sevcred) must be rilualize-d
-and controlled, transforming the state of exception into public monm­
ing and monmlng into iustitium, Corresponding to the undeddability
of nornos and ,momie in the living body of the soverf·ign is the undc­
cidability between state of exccptfon and public mourning in the dty,
Refore assuming its modern form as a dedsion on the emergency, the
relation between sovereignty and state of exception appears in the form
of an identHy between 1he sovereign and anomie, Because he îs•a living
law, the sovereign is intimatdy m10tn()s. Herc too the state of exception
is th<>-secret and lruer-Hfo of the lnw,
� The thcsis that ''the sovereign is a living law" fnund ils first formulation in
the treatisl;! by Pseud,H\n:hytas On Law and Justia, whicb was preserved for
us by Stohaem a long with Diotogt'nes's treatise on "over<:ignty. Wbe:-her or not
· Grnppc's hypothr,sis th;n th ese rre:1tises wcrc composeà by an Alexa;1drîne Jcw
in the first cenlury of <rnr cra is corred1 it is certain that we arc dcaling with'r;
· group of texts thnl, tmder lhc -::ov,:r ofP!atonk and Py!hagou:JH catcgories, scck
t(i lay the foundafüms for a conception of wn:rcignty that is cntfrely unbmmd
by laws ,md itnlf th1: a somce of lt'gitimacy In Pseudo-Archyt,1s'to tcxt this
is c:xpressed in rhe distînctfo:1 hctwcrn the s0vc,·e!f,c { iM;,ileus), who is the law,
and the rnagistratc (a1·ki1{in), who ntu;;t only observe the law, 'I11t: iùcutification
betw«en rh.,,� h:w ;rn d tht: soverclgn Jeùds to rhe ,Jlvision o( the law into a hicrnr"
chicàUy supcrior "Hvlng" law {n011u,s. cn•f'511klrrcs) and a written law (r,mmma)
that 1S suhordinatc to it:
I say th,H éVt'l"f corurnonity i:- composed of an arkhün (the magjstrate whü
commitnds), one who :is comrnandcd, aml, third}y, the laws. Of thesc last, the
living une ls the 5-0ve,-cigu Ow men cc1p,11kt10,, in basiirns) and the Jnanimate
one is the lefü:r (gramma). The hnv hdng the fi Nt elemrnt, the king is lcgal-,
the maglsl rate 1$ in conf,,mü!y (wîth the law), the nne who is commandr.:d
is frec and the entire is happy; but j( there is any deviatkm, then the
Fea\t, MonrnJng, Anomie 71
s.overeign is a tyrant, the magistrate is. not in c,mfonnity \Vith the law ant1
the communîty is 1rnhappy. {A. Debtte- 1922, 84_)
By me.ans of a coinplex: strategy, which is nOt witho:it analogies to Paul's
,:;rltique of the Je,;vish t1{1mas (thi.s proxirnityis aiso at times textmll: Romans 3:21:
khOris nomou dikair,sunê; D-iotogcnes: ,mru nomott dikairmmC; and in Pseudo::
Archytas the law ls defined as a '"'letter," gmmma, çxactly as ln Paul), anPmic
elemellts are introduced into thl'.' po!is througil the person of the sovcrcign, with
evidendyno effe.::t on the prim1Ky of the iwmo, (the sovcff'ïgn is ) Jndeed, "living
l.av/").
5,4 The secret solidarity between anomie and law cornes to light in an­
other pht.-:nomenon, whkh represents a symmetrical and jn some ways
inverse figure to the lmpcrial iustitiunr Folklorists :md anthropülogi.sts
have long been famiHar with those periodic feasts (such as the Antheste­
rfa and Saturnalia of the dass:ical wodd and the charivari and Ca.rnival
of the medievaJ and modern world) that arc charncterized by unbridled
lîcense and the suspension afül overturning of normal 1egal and social
hierarchies. During these tèasts ( which are found with similar chan1c­
teristks in various epochs and cultures), men dress up and beh ave Hke
animals, masters serve tbeir slaves, males and females exchange roles;
and criminaJ behavior is considered lkit or, in any case, not punishable.
That is) they inaugurale a perîod of anomie that breaks ,md temporarily
subverts the social order. Scholan hê1ve alwr1ys had dif.ficulty explain­
ing these sudden anomie explosions within welJ.-ordered socîeties and,
above a!!, why the, wotùd be tolerated by both the religious and civil
authorities,
Contrary to thnse intcrpret:ations that traced the anomie foasts back
lo agrnrîan cycles tied to the solar co.lcndar (I\'iannhardt, Frazer) or to a
periodk fonction of p11rification (VVestermarck}, Karl 1v1euH, with a bril�
liant intuitiot).,. instead related them to the state of suspended law that
characterh:ed somc archaic juridicn! institutions, such as the Germanie
Fricd!osigke-it or the persecution of the tvargus in andent English law.
tn a scries of exempfary studies, he showed how the disturbances and
violent acts meticulously listed ln medieval description s ofthe charivari
and other anomie phenomena precisely replicate the different phases
of the cruel ritual in which the Friedlos and the bandit were expelled
 l

72 Chapter Five Fo,,;.t, Mourning, Anomie 73

from the community, their houses unroofed and destroyed, and their
wells poîsoncd or made brackish. The harlequinadcs described in the
unprccedented chalivali of the Roman de Fauvel (Li un montret sort cul
au vent tLi autre rompct 1111 auve11t1 L'un rassoit fenestres et huis, /
/ cret soHdarity. It is as if the universe of huv-and more generaJly) the
L'autre getoit le sel ou puis, / L'un gctoit le bren aus visages; / Trop estoient
fès et smwages [One showed hïs nss to the win<l, / Another smashed a
root� J One broke windows and doors, / Another threw salt in the wells,
1 And another threw fil th in faces; / Theywere trnly horrible and s,wage] )
cease to appear as parts of an innocent pandemonium, and one after the
other find their counterpan and lhdr proper context in the Lex· Baiu­
variorum or in the penaI statu tes of the medieval chics. The samc can
be said for the acts: of h:mtssment cornmitted durfog maske<l feasts and
children's bcgging rituals in which childrcn punished whoever denied
their ohHgatlûn to brive a gifi with acts of violence that Halloween only
distantly recal]s,
Charivari îs one of the many fü'U11es (whkh vary from country to
country and region to r1.-5ion) for an andent and widdy dîffused
act of popu!ar justice., whkh occurred everY¼'here in similar) if not
identical fùrms. Snch forms are also used as ritual punishments in
the cyclical mJsked foasts and their extrerne oftShoots, the traditional
children's he-gging rituals; one'may therefon: immediately draw upcm
these for an înterpretatiori of charivari-like phen.o me.na. A doser
analysis shows that what al firs t sight seemed simply to be rough and
wild acts ofharassmeut are in Lruth well-defined traditional customs
and legal fonns1 by means of which 1 from timc immem.orfr,l� the ban
and proscription were carrîed out. (M_euD 1975, 473)
If !',4euli.'s hypothcsîs is correct 1 the ' legal anarchf' of the anomie
1
the thret-hold of inùifferenœ between anomk an<l law. In showi11g the
momnful character of every feast and rhie fies.rive character ofall 1nourn­
ing) law and anomie show their distance andi at the same time, their se­
sphere of humru1 action insofar as it has to do with law--ultimateJy
appearcd as a field of forces traversed hy t'vv'ü con_joined ;tnd opposite
tensions: one that goes frotn norm to anomiei and another that Îeads
frorn anomie to the: law and the rule. Bence a double paradigm, whkh
marks the field of law with an essential amhigulty: on th l:' one haml) a
normative tendency in the strkt sense i which ainrs at crystallîzing itself
in a rigid system of norms whose connection to life is, however, prob­
lematk îf not impossible ( the perfoct state of law, in which everything is
reg1ùated by norms); and, on the other band, an anomie tendency that
leads to the state of exception or the idea of the sovereîgn as living law,
in whkh a force�of-Jàw: that is without norm acts as the pure inclusion
of life,
The anomie feasts dramatizc this irredudble amhiguity of juridica1
systems and > at the same time, shmv that \,,hat is at stake jn the dfalectic
between these two forces is the very rela tfon betw<:'e-n l;;w and life. The-y
ce-lebrate and parodirnl1y rep]kate the anomie through which the law
applies itsdfto çhaos and to Hfo only on the condition ofmaking itself,
in the state of ex:cep1 ion, Hfe and living chaos. And perhaps the moment
has come to try to bctter understand the constitutive fiction that-in
bin<ling together norm and anomie, law and state of exception--also
ensures the relation belween law and life.

foasts does not refer back to andent agnuian rites, which in themselves
explain nothing; ralher, it brings to light in a parodie form the anomie
within the law, the st ate of emergency as the anomit.� drive c.antained in
the very heart of the nomos.
That is: to say, the ,mom ie feasts point toward a zone in which life's
maximum subjection to the 1aw is ,reversed into freedom and îiœnse,
and the most 1.mbrüllerl anomie shows Jts parodie' connectîon v.rîth the
nomos. Jn other words, they point toward the real stale of exception as

6 l'Î Attctoritas and Potestas
6,1 ln our analysls of the state of exception in Rome, we neglected ta
ask what was the foündation of the Senate's power to suspend the law
hy mcans of the scn,rtus ammltum ultinmm and the conscquent procla­
mation of a iustitium. VVhocver may have bcen the subject qualificd to
declare a iustitimn, it is certain that it was always dedared ex auctoritote
patrum. Indeed, it is well known that in Rome the term designating the
Senate's most proper prerogative was neither impcrium nor potestas, but
auctoritas: aucioritas patru1n is the s.yntagma that defmès the spedfic
fonction of the Sena te in the Roman constitution.
In both the history oflaw and, more general1y, philosophy and pofüi�
cal theory1 all attempts to definc this category of auctoritas--•·-particu1arly
in contrast to potcstas..-seem. to run into almost insnrmountable obsta­
des and aporias. "It is particularly difficult t'' wrote a French legal histo­
rian at the beginning of the 1950s, "to brîng the various juridkaJ aspects
0f the notion of aucwritas backto a unitary concept" (ti.1.agdelain 1990,
685); and; ut the end ofthat decade; HannahArcndt could open her essay
"What ls Authority?" with the observation that authority had "van.ished
from the modern world» to such an extent that in the absenœ of any "au­
thentk and indisputablë' ex.perk"llce of it, "the very term has bccome
douded by contmversy and confusion" (Arendt 1961, 91). Theœ is pcr­
haps no better confirmation of this confusion•--and of the arnbiguities
that it cntails-than the fact that Arendt undertook her reeva luation of
autlwrily only a few years aftcr Adorno and Else Frenkel-Brunswick had
conducted their frontal attack on ''the authoritarîan personalîty." On the
other hand, in forcefully d�nouncing '"the lîherat identification of total­
itarianlsrn ,vith authorltarianism" (9iL Arendt probahly did not realize
that she shared this dennndation with an author whom she certainly
disliked.
H
Indeed 1 ln 1931, in a book bearing the significant title Der . üter der
Ver/a,sung (The guardian of the constitution) , Carl Schmitt had tried
Au,;toritas am[ Pntesta� .75
to define the president of the Reich's neutr<1l power in the state ofcxœp­
tion by dialectkally opposing auctoritas and potestas, After recalling that
hoth Bodin and Hobbes were still able to appreciatc the meanJng of the
dlstJnctioni Schmitt lamented (in words that anticipate Arendt's argu­
ment) ''th e lack of trad ition of the modern theory ofthe state1 wb ich qp­
poses authority and freedom, authority and democraçy , . . to lhe point
of confming authority wüh dictatorship" (Schmitt 1931, 137). Already in
his 1918 treatise on consti1 utional law, though without defining the op­
position, Schmitt evoked its "greM importance in the general th.:ory of
the state:' and referred back to Roman law to descrfüe it ("the Senate
had aurt()rittJS; on the contrary, potestas and imperium derive from the
people" '. Schmitt 1928 ) 109] ).
ln 1968, in a stu<ly of the ide.a of ,mthority pubiished ln a Fc�gabe for
Schrnitt's eighrieth year> a Spanish schoiar, }csus Fueyo, note<l t:h at the
modern confusion of auctoritas and potestrts ("two concepts that cxpres.s
the orlginary sense through which the Roman people conœived their
comnmnal life" [Fueyo 1968, 2131 ) and their convergence in the concept
of sovereignty " was the cause of the phiiosophkal inèonsistency in the
modern theory nfthe state"; :md he imme<liatel y- added 1haL lhis·confu­
sion ''is not only academic1 but is doseJy bound up wîth th e real process
thal has lc<l to the formation of the politirnl order of modernity" ( 213),
What we m'ùst now try to understand is the meaning of this '-'confusion"
t1Jnt is hrnm<l up with the retlection and poJitîcal praxis of th e "West
N: ft is a commonly held opinion that the concept of auctoritas is specîfically
Roman, jmt ris it i� cliché to refer to Dio Cassius in order to denrnnstrate its un­
t!'<lnslatabilîty intn Gretk. But dcspite wb<it is n:'peatedly daimed, Din ü1:rniHs,
who ha<l :.n ex,:el lfnt knowledge ofRom;m law, does not say thal ùte tèr/TJ -is im­
possible to tnm,slate; he says, rather, that it omnot be trnns-lated krithàp-ax, "'once
and for :111" ( hdlênisnî rwtn knthapnx od1mr.ton csti [ l?/lmrm Hisfwy 55.3,s ] ) . 11w
implication here is that it n-JL1st be rendered in Greek with a differenl tcnn e:ach
tïme, depcnding on the context� whkh is obvions, giv-cn the wide f(;èd ch of the
concept. What Dio ha.� in mind, therefore-, is not somcthing like a Roman
ficity of the krm but the dfffkuhy ofleading it back to a single meanlng,
6.2 The definition of the problem is rnmplicated by the fact that the
concept of twctoritas refers to a relativeîy broad juridical phenomenol-
76 Chapter Six
ogy) whkh conccrns both pr ivate and public law. IL wîll be best to begin
our an_alysis with the former) and then to see if it is possible to lead the
two aspects back to unity,
In the sphere of private law1 auctoritas is the property of the auc­
to,; that is, the person sui iuris (the pater familias) who intervenes--­
pronouncing the tedmkal formula auctM fto rT am made auctor ]-in
order to confer legal validity on the act of a subject who cannot inde·
pendently bring a legally valid act into being. Thus, the auctoritas of the
tutor makes valid the act of one who lacks this capadty1 and the auc­
toritas of the father '\rnthorizes11-tJ1at is,, makes valîd-thc marriage of
the son În potcstate. Analogously, the seller (in a moncipatio) is hound
to assist thi; buyer in confirming his tîtle of ownership in the course of
a daim proceeding involving a third opposin g party.
The term dcrives from the verh augeo: the auctor is is (JUi auget,
the person who augments ) increases, or perfocts the act-or the legal
situation-of someone el:;e. In the section of his Jndo-Europcwi Lan­
guage and Society dedicated to Jawi Benveniste sought to show that
originally the verb augeo (which, in the !ndo-European area, is signif­
icantly related to terms that express force) "denotcs not the -increase
in something which already exists but the act of produdng from one's
own breast� a creative act" (Behyeniste 1969, 1: 148/422). In truth, the
tvm meanings are not amtradktory at all in dasskal law. Indeed, the
Greco-Roman world does not know creation ex nihilo; rather. every act
of creation always involves something else-formless matter or încom­
plete being-that must be perfected or made to gmw. Every creation
is always a cocrcation1 just as evcry author is always a coauthor. As
Magdeiain has effectively written, ''[A}ucf<liitas is not suffü:ient in it­
self; whether it anthorizes or ratifies, it împlies an extraneous activity
t11at it validates" (Magdelaîn 1990, 685). lt is, then, as if for something to
exist in lav>" there must be a relationship betwee:n two elemenu ( or two
subjects): one endowed wi th a11ctoritas and one that takes the initfative
in the act in the strict sense. Ifthe tvm elements or two suhjects coindde,
then the act is pcrfect. H0wever, if there is a gap or incongruity between
them, the act must be completed wîtb auctoritas in order to be valid.
But where does the "force" of the auctor come from? And what is this
power to augere?
Auctoritas and Pote.sfa$ 77
It has bccn rightly notcd tlrnt auctoritns has nothing to do with repre­
sentat1on ) whereby the ac1s performed by a mandatary or by a leg:11 rep­
resentative are im p uted to the mandator. The fllfftor 1s act is not founded
upon some Sort of legaJ p ower vested in him lo act as a rep resent'ative
( of the min or or the incompetent ) : it s priri gs directl y from bis cond.iti qn
as pater, In the same way, the act of the seller, who intervenes as auctor
to defend the bu yer, has nothing to do with a right of guarantee in the
modern sense. Pierre Noailles, wbo had sought in the last years ofh..is Hfe
to outline a unitary th:eory of rmctoritns in privnte iaw, coukl therefore
write that it is "an attribute attached to the pcrson, and originally to the
physical person, . . . the privilege, the right that belongs to a Roman,
under the required conditions, to serve as a foun<lation for the let;a1 sit­
uation created by others" (Noailles 1948, 274), "Like ail the powers of
archaic law;' he adds ) ''be they fomîliat prîvate> or p ublic, audoritas too
v.<as oriiinaHy conceivcd according to the unilateral modei of Jaw pure
and sîmpll\, wil'hout obHgation or sanction" (274), And yet we need only
reflect on the formula aurtor fio (,rnd not s:imply auctor sum [I am auc­
tor]) to realize tllat it secms to imply not so much the voluntary exercîse
of a rî ght a.s the actualîzntfon of an impersonal power [potenzal in the
very person of the auctor.
6.3 As we have secn, in pnhlk law rmctoritas designates the most
p roper prerogative of the Senate. The active snbjects of this preroga­
tive are thercfore the J>atrcs: tmctoritas patrum and patres at1ctores fiunt
[ the fathers are made a11dors l are common formulas for expressing the
àmstitutional function of the Sena te. Legal historians have nevertheless
always had difficulty defining this fonction. Mommsen observed that
the Senate does not h:rvc an ;;iction of its own but cm act only in concert
with the magistrnte or to com plete the dedsions of popular camitia by
ratîfying laws, The Sena te cannot express itself without being questioned
hy the magistrates and can onJy request or "colmseY1-consultmn is the
technical term-,vithout this "counsel 1" ever being abso!utely bînding.
f The formula of the scnat us co11srtlt11m is ri cis videatur; "if it seems right
} to them [i.e., the magistratesa] ''; in the cxtreme cnse of the senatus con­
sultum ultimum, the formu la is slightly more emphatic: videa11t consules
:j [let the consuls see to h î. Mommsen expresses this pecullar character of
78 Chaptcr Six
auctoritas when he writes that it is "less than an order and more than a
counsel" (Mommsen 1969, 3: 1034).
It is certain, in any case) that auctoritas has nothing to do with the
potestas or the imperium of the magistrates or the people. The senator
is not a magistrate, and we nearly never fin d the verb iubere [to orderL
which defines the decisions of the magistrates or the people, used for
his "counsels." And yet, with a strong analogy to the figure of the auctor
in priva te law, the auctoritas patrum intcrvenes to ratify the decisions of
the popular comitia and make them fully valid. A single formula (auctor
fia) designates both the action of the tutor that complctcs the act of the
minor and the senatorial ratification of popular decisions. The analogy
here does not necessarily mean that the people must be considered as
min ors un der the tutelage of the patres; rather, the essential point is that
in this case too there is that duality of elements that in the sphere of
private law defines the perfect legal action. Auctoritas and potestas are
dearly distinct, and yet together they form a binary system.
N' The polemics among scholars who tend to unify the auctoritaspatrum and the
auctor of private law under a single paradigm are easily resolved if one considers
that the annlogy does not concern the individual figures, but the very structure
of the relation between the two elements whose integration constitutes the per­
fect act. Jn a study from 1925 thar had a strong influence on Roman scholars,
Richard Heinze describcd the common element between the minor and the
people with these words: "The minor and the people are determined to bind
themselves in a certain direction, but their bond cannot corne into being with­
out the collahorntion of another subject" (Heinze 1925, 350 ). That îs to say, it is
not that scholars tend to "depict public law in the light of private law" (Biscardi
1987, 119), but that there is a structural analogy that, as we will see, concerns
the very nature of the law. Jmidical validity is not an originary characteristic
of human actions but must be conveyed to them through a "power that grants
legitimacy" (Magdelain 1990, 686).
6.4 Let us try to better define the nature of this "power that grants
legitimacy" in its relation to the potestas of the magistrates and the peo­
ple. What previous attempts to understa nd this relation have not taken
into account is precisely that extreme figure of auctoritas that is at issue
in the senatus consultum 11ltimum and the iustitium. As we have seen,
Auctoritas and Potestas 79
the iustiti11m produces a tru.e and proper suspension of the juridical or­
der. ln particular, the consuls arc re<luced to the condition of prîvate
citizens (in privato abditi), while every private citizen acts as if he were
invested with an imperium. With an inverse symmetry, in 2u BCE, at
Hannibal's approach, a senatm rons1rlt11111 resnscitates the imperh1m_ of
the'former dictators > consul �, ,md censors· (placuit omnes qui dictatores,
co11s11lcs censoresve f11issc111 cum imperio esse, dance rccessisset a muris
hostis [It was decreed that all who had been dictators, consuls, or cen­
sors should have i 111perif!111, until the enemy had withdrnwn from the
walls] [Livy 26.10.9] ). Under extreme conditions (that is to say, under
the conditi ons that best de.fine it, if it is true that a legal institution's
truest character is always defined by the excepti on and the extremc sit­
uation) auctoritas seems to act as a force tha t s11spends potestas whcre 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.
This relation�at once one of exclusi.on and supplementation­
betv,'een auctorîtas and potestas is also found in another institution in
which the a11ctoritas patrum once again sh mvs its peculiar fonction: the
interrcgnum. Even after the end ofthe monarchy1 when, because of death
or whatever other reason, there remained no consul or other magistrate
in the city (except the representativcs of the pl ebs), the patres n11rtores
(that is, the group of senators who belonged to a consular family, as
opposed to the patres conscrip ti [con script fathers] ) named an interrex
who ensured the continuity of pmver. The formula used ,vas n?s puhlirn
nrl patres redit rThe republic returns to the fathers ] or m1spicia ad patres
redeunt [The auspices retum to the fathers] . As Magdelain has writ­
ten, "During the in terrcgnum, the constitution is suspended . . . . The
Republic is without magistrates, ,vithout Sennte, without popular as­
semblies. Then the senatorüd group of the patres meets, and sovercignly
names the first interrex, who in turn sovereignly names his own succes­
sor" ( Magdelain 19901 359-60). Here too, auctoritns shows its connec­
tion with the suspension of potcstns and, at the same timc, its capacity
to ensure the functioning of the Republic un der exceptional drcum­
stances. Once again, this prerogative rests immediately with the patres
auctorcs as such. Indeed, the first interrex is not invested with the im­
perium of a magistrate, but solely the auspicia (356); and in asserting
Bo Chapter Six
aguinst the p!ebians the importance of the mtspicia, Appius Claudius
states that they belong personaHy and exclusivefy ta the patres priva­
tim: "nnbis adeo propria sunt auspicia, ut . . , privatim rmsf'icia habea­
mus [The auspices bdong so properly to us that . . . we have them as
prîvate dtizens]" (Livy 6,41.6), The power to reactivate vacant potestas
is not a legal pnwer received frorn the people or a magistrate but springs
immediately from the persona! condition of th e pattes.
6.5 A thir<l institution in whkh auctoritas shows its spedfic fonction
of s'>uspen<ling law is the hostis iut!icatio. In exceptionul :;ituntions where
a Roman citîzen threatened the sec.urîty of the Republic by <::onspîracy OI'
treason, he could be dedared hostis, "public enemyt hy the Senate. The
hostis iudicatus was not simply Hkened to a foreign enemy, the hostis
alicnigena1 because the latter was aJways protccted by the ius gentium
[law of peoples) (Nissen 1877 1 27); he was, rather� ra<licaHy deprived of
anylcgal status and could therefore be stripped ofhis belongings and put
to dealh at any moment. \Vhat auctoritns suspends here is not sîmply the
juridkal order) but the ius âvis, the very s'tatus of the Roman citizen,
The relation-at onœ antagonistic and supplementary-betwcen
auctoritas and potestas is -final1y shown in a tcrmino!ogical peculiarity
tflat Mommsen was the first to' notice. The syntagma senatus auctoritas
is used in a technical sense to <l'esignnte a senatus co11suJt1fnt that, be­
cause it has heen opposcd by an intcrcessio, is without legal effects and
can therefore not be executed ( even if it was enlered as such among the
offidal acts, auctoritas perscripta ), That is, the auctoritas of the Senate
appears in its purest and most perspicuous form when it bas been in­
validated by the pot est.as of a magistrate, v:hen it lives as mere -writing in
absolute opposition to the law's being in fot<ce [vigenza], For a moment
here audoritas shows its essence: the power lJwtenza] that tan at once
"grant legltlmacy" and suspend law e:xhibits its most proper character
at the pofot of its greatest iegal inefficacy, lt is what remains of law Ïf
law is wholly mspended (in this sense; in Benjamin1s readîng of Kafka's
allegory, not law but lifo.-law that blurs at every point with lifo).
6,6 It is perb,1ps in the auttoriras principis-that is, in the moment
when Augustus, in a famous passage of the Res gestae, daims a-uctori-
Aurtoritns and P-Olt!Sfas 81
tas as the foundation of his st:atus as princrps-that we can beHer un­
derstand the meaning of this uniqne prero g:atlve. It is signîfican1 that
the rehirth of modern studies of auctoritas coincides pn:dst'ly with the
publication ln 1924 of the 1\tfamtmcntwn Antiochct11m1; whkh aHowed a
more accurnte recous:trnction of the passage in question, The issue he.re
conce-med a series of fragments of a L.ttin in:scdption conrnining ;i pas­
sage from chapter 34 of the Réi gesta c, which was extant in its entirety
only in the Greek version, Mommsen had reconstructe<l the LaLin lext
in these terms: "post id ternp11s P"aestiti ornnilms dÎgnitme (:axî5rnatî),
potestatis autern nihif arnplius hr1bui ,pwm qui fiœrw1t mihi quoque in
nrngistmtu amicgcie [After that time I surpasscxl all ln dignifas, although
I had no more potestas than those wJ10 were my colleagues in eJch mag­
istracy],"' The An tiochean inscription shov,'cd tha t Augustus had wdtten
not dignitate but ,mctoritme, Commenting in 192,5 on the new informa­
tion� Heinze wrote, "Wc philologists shou!d all be ashamed for h-avlng
blindly followed lvfommsen's auth0rity: the only possible antithesis to
potestas--that ls, to the legal power of a magistrate--was; 111 this pas­
sage; not dignitas) but auctoritas" (Heinze 1,915, 348).
As often happens-and. moreover, as scholars did not fail to ob­
serv�the rediscovery of the concept (no fower than fifteen important
mm1ographs on auctoritas appeared in the following ten years) kcpt
pace -whh the gmwing ,veight thctt th.: authoritarian prindple was 'as­
smning in the pdlitical Hfe of European societies. "Auctoritas," wrote a
German scholar in 1937, "that is, the fundamentai concept of public law
in our modern authoritarian states1 can only be understood---1101: only
liter.:1lly but also as regards the cOntent-starting from Roman law t)fthe
tîme of the principate"' (Wenger 1939, 15z). And yet it is possible that this
nexus hetween Roman law and out own politica[ e:Kperience is predsely
what still remains for us to investigate.
6.7 If we now return to the passage from the Res gestne, the decisive
point is that here Augustus defi nes the tipecitidty of hîs rnnstituHonal
power not in the certain terms of a potestas, whkh he says he shares.
with those who are his colleagues in the rnagîstracy, but in the vaguer
terms of an auctoritas. The meaning of thé name "Augustus,"' which the
Senate confcrred ou him on January 16, 27 BCE, accords entirely with
82 Chapter Sb:
this daim: it cornes from the sam c root as augeo and aucti:ir and, as Dio
Cassius notes, "doe.s not rriean a pntestûS [dunamis ! , . . but shows the
splendor of cmàoritas [ tën f(!U axitimntos lamprotëta1" (Roman History
53.18.2).
In the edict of January 13 ofthe same ye.n, in ,Yh ich he <lccbres his in­
tentînn to rcstore the republkan constitution, Augustns defines himsclf
as op timi sto tf!S auctor [ am:tor of the highest standing] . As fvfagddaiu
has acutely ohserved > the term rmctor here does not have the generk
meaning of "founder;' but the technkal rnè;ming of "guarantor in a
mrmripatio,'T/ Because Augustu.s conceives of the restoratfrm of the Re­
pubHc as a transfor of the res pu Mica from his hands to those of the peo­
ple and the Senate tsee Res ge5f-r1e: 34.1 ), it is possihle that "in th e fonnnla
auctor op timi status . . . the tenn auctor has a rather precise lcgal mean­
ing and refers to the idea of the trnnsfer of the res publica. . . . Augustus
would thus be the a11ctor of the rights rcudered to the people and the
Senate, Just as, in a m;mdpcition, thé mandpio dans is the ,wctor of the
power acquired by the mancipio accipiens over thi: transferred object"
(Magdelain 1947, 57).
ln any casc:1 the Roman prindpate-which we are used to descdbing
with a term (emperor) thal rcf-ers back to the imperiwn of the magis­
trat�i.s not a mag îstracy, but an extreme form of auctoritas. Heinze has
described thîs contrn.st perfectly: "Every magistracy is a preestablîshed
form, ,vhkh the individnal en ters into and \•vhkh constüutes the source
of his power; tmctoritas, on the other hand, springs from the pcrson,
as something that is constituted through him, Hves only in him 1 and
disappears with him" (Heinze 1925, 356). Though Augustus receives ail
m.igistracies frorn the people and th e Senate, auctoritas is inste:i.d bound
to his person an<l constitutes hirn as rmctor optimî status, as hc wh.o le­
gitîmat('s and gnan:mtees the whole of Roman politkal life.
Bence the pecnHar status of hîs person, whkh manifcsts itself in a
fact ••1l1ose importance has not yet been fuHy appreciai-ed by sçholars,
Dio Cassius informs us that Augusms "made al! ofhis house puhHc I t-ên
on:i:m edëmosiüsc pasanl . . . so as. to live at onœ in public and in pri�
vate [ 11in' en tois ùiiois lumw kai en wls koinois Mkoie}" {Roman History
It is the tmrtaritas that he ernbodi es 1 and not the magistrades
with which he has been invested, that make it impossible to isolate in
Auctorîf(IS and PvttstJ.1s ll-3
hirn something like a prîvate Hfe and domu.s. This is also the sense in
v,:hkh one must interpret the fact that a sîgnum to Vesta is dcdicated in
the house of Augustus on the Palatü1e. Fraschctti has rightly ol:;.served
that, given the dof'le connectîon hetween the cult of Vesta and the cult
nf the puhlkPcnates of the Roman peoplc 1 tJ1is me.ant tlrnt the Penat"es
of Augw;;tns's family wcre idenüfied with those of the Roman people
and that therefore "the private cnlts of a fomily . . , ,m d preeminently
communal cults in the sphere of the city (those of Vesta and the public
Penates of the Roman people) would seem in fact to become homolo­
güus in the ho use ofAugnstns" (Fraschetti 1990, 3i;9) , Unlike the Hfe of
the common dtizcns, the '"augu.'>t" ]ife can no longer be dcfi.ned through
the opposition of public and priva te.
� lt is in this light that K:intorowicz's theory of the king\; two bodies should
be t!:'read, sn that we rn1ï m«h- some refinem<-'nîs to k Kantor,.rwicz (who g1n,
ertlily nndervalues the importance of the Roman prcœdcnt to the thoory !.hat
he secks m recoristruct for the and French mon;m::foes) does not relate
th.c distinction betwt"en fltfftnrit11s and Jmte�tn,; to the pn 1bkm of the kJng's two
hodies and thi;; prindple di.gnitas non mnfitur [ rlignitos does not die]. And yet
it is pr<:mc!y bccrnsc the sovereign w.as fin>t and forcmost the emhodîment of
au 11uctoritas_, and not solely of a pot(•stns, that aurtaritas was so closely hm.md
to his phy,;ical rerson, thus rcquJfing the complicai:cd rilua{ of constructing a
wax double of the sov<:Teign in the f111ms imaginariwn The end of a magistracy
r.s such doe!i not entai! a prnblem of bodies at all: One magistrntc suœeeds an­
other tvithmit lrnving to pres11pr0se the irnmortaEty of the oflice, ûnly because,
from the Roman princep:1 on, the <;OVt'reign exprf'sses '.m rmrtoritr15 Jn his very
pei·son, onî y beca\Jse in "aügust" life puhlic and pr1vate have en!cred into a zone
of absolute indistinction, docs it becomes 11ecessary to dh,thtgu'.sh two bodies
in or<ler to ensme the contitiuity of dignifns (which is simply a synonpn for
,mrt(lritns ),
10 understand modern phcnomena such as the Fascist Duce and the Nazi
Fi1hre:; it is im110-rtant not to forger thei.r continuily with the prindpk of the
nl!ctaritas prinripis, As. ·wc have a!rcady ohservcd, evcn thoogh Mussolini held
the office of he:,d o( the govermncnt and Hitkr that ùf ch,mœllor of thr: Re�
kh (just as J\ugustus held imperl/1111 r11n:olare or pat!'strls trii11111ica) ndther the
Duce nor the F'ilhrcr represents. a constitntiono.lly defini:"<l puhlic office or mag­
istracy. The quafüies of Duce or Ffih,.n· are imrne<liately brnmd to the physical
84 Chapter Six
person and bdong lo the biopolitkal traditlo11 of r111ctoritnç and not to the legal
tradition of pot('sta$.
6.8 It is significant tlrnt moden1 scho!ars have been so ready to uphold
the daim that aurtnritas inheres lmmediately in the living person of the
pater or the princeps. VVhat \•vns dc.arly an ideology or a fictio _i ntended
to ground the preemincnce or; in any case, the specific rank of auctori­
tas in relntion to potcstas thus bccomes a figure of law)s immanence to
!ife, lt is not by chance that this should happen precisely in the years
when the authorit.irian prindple saw an unexpectcd rebirth in Europe
thmugh fascism and Nationa.l Sodalism. ·n1(mgh it was obvious that
there cannot be some sort of eternaI human type periodkaHy embod­
ied in Augustus, Napoleon) or Hitler) and that there are only more or
less similar ]egal apparatuses (the statc of exception, the iustitium, the
auctorïtas principis, Führertwn) that are put to use under more or Jess
different drcumstauœs, the power that VVeber called «charismatic'' was
nevertheless linked in 1930s GennanY {and elsewhere) to the concept
of auctoritas and elaborated in a theory of Führertum as die originary
and persona] power of a leader. Thus in 1933, in a short article that seeks
to outline the fondamental concepts ofNatlünal Sodalism, Schmitt de­
fines the prindple of flii/mmg tluc,ugh "the ancestral identity between
leader and followers" (note the use of Weberian concepts), 1938 saw the
publication of the Berlin jurist Heinrich Triepel's book Die Hegemonie,
whkh Schmitt quid<ly reviewe<l. ln ils first section, the book expounds a
tlwory of Fiii1rertwn as an authority founded not on a preexisting order
but on a personnl drnrisma. The F/1//rer is define<l through psychologi­
cal categories ( energetic ) conscious, and creative wHit and hîs unitywith
the soda! group and the originary and personal character ofhis power
are strongly underscoml.
Then in 1947, the elderly Roman scholar Pietro De Francisô pub­
lished Arcana imperii, În whkh he dedic.ates a good deal of spaœ to an
aualysis ofthe "prirnarytype" ofpower that he {seeking to distance him­
self from füsdsm with a sort of euphemism) defines as duttus (and the
leader in which it is cmbodied as ductor). De Frandsci transfonns the
\.-Veberian tripartition of power (traditiona!, legal, charismatic) into a
dichotomy drawn on the opposition of anthority and povver [potest'à J ,
�n1e authoritr of the ductor or the FWm.:r can never be derivatîve but is
Auctoritas and Potfstas 85
aJways orïginary and springs from his person; furthermore, in its i!ssence
it is not coercive1 but is rather founded) as Tricpcl had already ,;;hovvn ,
on consent flnd the free acknowlcdgmcnt of a "superiority of value."
Though both Triepel and De Francisci had fascist nnd Naû tech­
niques of government before their eycs, neither appears to bave h('en
aware that the power they describe attains its appearanœ of original­
ity .from the suspension or neutrali:r.ation of the juridîcal order-that
is) ultimately, from the stnte ofex,:er•ll<m, "Charism.:{'-as its rcference
to Paul 's kharis (whidt Weber knew perfoctly well) could have
suggested-colncides with the neutraHzation oflaw an<l 1wt with a more
odgînary figure of pmver.
ln each case, \.vhat the threc authors seem tü take for granted is that
anthnritarian-charfamatic pmver springs alnmst mn gical!yfrom the very
person of the Führer. Law's daim tbat it coincides at an eminent poînt
with life could not have been affinned more forœfutly. In thîs regard,
ù1e !heory of mu:toritas convergcd at least in pi1rt wi1h the tradition of
jnridkai thonght that saw faw as ultinrntely identlcal with-or imme­
diately artkulated to-Hfe. Sav'1c11v s maxlm ( "'Law is nothing but Hfe
considered from a partkufar point of vieW") fin,:l s a çounterpart in the
twentieth century in Rudolph Srnend's thesis that "the norm receives
the gmunds of its validity jGclwngsgnmd'. , the quality of its validity,
and the content of its validity front life and the seuse attributed to it,
just as, inversely, Hfe mu st be underntood only in relation to its ai:;signed
and regulated vital sense {Lebc11ssi11n]" (Smend 1956 1 300). Just as 1 în
Romantic ideology, something like a !anguage becnme fülly compre­
he.nsîble only in its immediate relation to a people (and vice versa) ) so
iaw and Hfe must be tightly implicated in a redprocal grounding. The
dialectk of m1ctoritas and potestos expresscd precisely this implication
(and in this sense, one can speak of an originary biopolitical charactcr
of the pHradîgm of auctoritas) , The norm can be applied to the normal
.situation and can be su spendcd without totally annulling the juridical
order bernuse in the form of m1rrMitas, or sovereign decision, it refers
immediatcly to litèj it springs from lîfe.
6,9 It is perhaps possi hle at this point to look back upon the path trav­
eled thus far and drnw some provi.sional con clusions from our investi­
gation of the state of exception. The jurldkal system of the \,Vest ;ippears
86 Chapter Six
as a double structure, formed by two hctcrogeneous yet coordinated d­
ernents: one that is normative and juridical in the strict sense (·which we
can for convenience inscrfüe under the ru bric pntestas) and one that !s
anomîc and metajuridkal (which we can caH by the name auctoritas) .
The normative element needs the anomie elemcnt in order to be ap­
plied, but, on the ()thcr hand, auctodtM can assert itself only in the val •
îdation or suspension of potestas. Because ît results from the <lialectk
between the.se two somewhat antagonistk yet fun ctionall y com1ected
elementsj the ancient dwelling oflaw i.s fragile andi in strnining to main�
tain its ovm order, îs always already in the process ofruin and decay. The
s!ate of exception is the device tha t must nltimately articulate and hold
together the Iwo aspects of the juridico-political machine by instituting
a threshold of undeddabîlity between anomie and nomos, hetween Iife
and law, lx�tvveen auctoritas and potestas. It is foun ded on the essential
fiction accordîng to which anomie {in the form of ouctoritas, living Jaw,
or the force oflaw) is still related to the juri<l ical order and the power to
sus-pend the norm lus an immediate ho-!d on lifr. As long as thè two el­
ement,;; rem.ain corre1ated yct conceptually1 tempora1ly, and subjectively
distinct (a.s in republican Rome\ contrast betweeu the Senate and the
people, or in medieval Europe's contrast hetween spiritual and 1emporal
i,01.vers) thdr dialectk-thouglffounded on a fi.ction-can neverthcless
function in smne vtay. But when "they tend_ to coindde în a single per­
son) when the state of exception, în whkh thcy are bound and hlurred
together, bccornes the rule, then the juridico-politlcal system transforms
itself into a killing machine,
6.10 The aim of this investl gntion-in the urgency of the state of ex�
œption "în whkh we 1ive"-was to brîn.g to light the fiction that governs
this nrcanum imperii [secret of powcrl pa.r excellence of mu timc. \-\lhat
the "ark" of power contains at îts œnter is the state of eiccption-but
this is: esse11tiall y an empty spàt:<:1 in which a human actj011 with no re­
lation to Jaw stands before a norm with no relation to Hfo.
This does not mean that the machine1 with jts empty center, is not
effect ive; on tl1e contrary, what we have sought to show is p rcdsely th.at
ît has cûntinued to fonction almost without interruption from \-Vorl<l
\A/ar One, through fasdsm and National Sodalism, and up to our owr1
t.îme. Indeed> the state of exception has today reache<l its m,:rximum
vwrklwî<lc deployment. The normative aspect oflaw can thus be obliter­
ated and contradicted with lmpunîty by a governmemal vioh:ncc tlrnt­
while ig noring international faw externaHy and produdng a permanent
state of exception intcrnall y-nevertl1eless still daims to be ap plying
th e law.
Of course, the task at han<l is not to bring the state of exception ba ck
lvithin its spatiall y and temporal1r defined boundnrie:s in order to then
rçaffirm the primacy of a 110rm and of rights that are themsdves ulti­
mately grounded in it. From the re,îl state of exception in which wc live,
it is not pnssib!e to return to the state of law [;;tat(I di dirirtaJ, for at issue
now are the very concepts of "state" and ,,;law.n But if it is possfüle to
attempt to halt the machine, to show its central fiction, this js h,:cmise
between violence and law, het\veen iife and norm, therc is no suhstantfol
articulation. Alongsîde the movcmt'nt thal seeks to ke.-,..p thcrn in rela­
tion M all costs; there is a counterrnovement that) working in an inverse
1.Ürect.ion in law and in life> ahvays seeks to loosen vArnt has been :artifi­
cially and violently linked. That is to say, in the field of tension of our
culture, two opposite force,s act:, one that institutes and makes i and one
that deactivates and depose.s. The sfate of cxœp tkm is both th<> point of
their maximum tension and-as it colnddes witb the ruk-that -which
threatens today to render them indiscernihle, To Hve in the state of ex•
ception mear:s to e..xpericnce hotb nf these possibHities a nd yet, by always
separating the two forces, ceaselessly to try to interrnp t the ,vorking of
the machine that is leading the West toward global civil war.
6.11 If it is true that the articulatfon between life and law1 between
anomie and -nmnas, that is produced by the state of exception ïs effectjve
though fictional, one can still 11ot conclude from this that somewhere
either beyond or before juridic:i ] :i pp aratuses there is an immedfatc ac •
œss to something whose fracture and impossible unification are repre­
sented by these ap paratuses. Thcre are not first lifo as a natural biolog ..
ical g iven and anomie as the sta ( e of nature, and then their implkntion
in !aw through the state of exception. On the contrary, the very pnssi­
bîlîty of distinguishing life and lnw, ano n1ie: and nomos) coindde') with
their articulation in the biopolitical machine, Barc lift! is à product of the
88 Chaptcr Six
machine and not something that preexists lt, just as law has no court in
nature or in the divine mind. Life and law1 anomie and 1wmos, auctoritas
and potesta5i result from the fracture of something to whkh we have no
other acœss than through the fiction of their articulation and the patient
work thati by unmasking this fiction1 separates what it had daimed to
unîte. Bur disench,r ntment does not restore the enchantcd thing to its
original stale: According to the principle that purity never lies at the
origin, dîsenchantment gives it only the possibility of reaching a new
condition.
10 show law in îts nonrelation to Hfe and life in ils nonrelation to
faw means to open a space between them for human action, which once
daimed for itself the name of "p-olîtics." Politics has suffered a lasting
eclipse because it has been contaminated by law) seeing itselt: at bcst,
as constituent pmver (that is, violence that makes law) 1 when it is not
reduœd to merely the power to negotiate with the law. The only truly
political action, however, is that whkh severs the nexus between vio­
lence and law. And only beginning from the space thus opened wm it
be possible to pose the question of a possible use of law after the "ieac­
tivation of the device that, in the state of exceptîon, tied it to lifo. We
wm then have before us a "pure') law, in the scnse in which Benjamin
speaks of a "pure" language and:? '"pure" violenœ. 'fo a wonl that does
notbind, tbat neither commands nor prohibits anylhing, but says only
itselt wou]d correspond an action as pure means; which shows only it­
self, witlmut any relation to an end. And, betw(�en the two, not a lost
original state, but only the use and human praxis that the powers of law
an'd myth had sought to c.apture in the state of exception,
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Index

Adorno, Theodor Wiesengnmd, 74 Chantrmps, Camille, 13

Antigone, 28 Cicero, 42, 45, 49
Appius Claudius, 80
Arangio-Ruîz, Gaetano, 29 Daladier, Edonnrd, 13
Arendt, Hannah, 3, 74, 75 Dante Alighieri, 26
Angustus, 67-68, 80-83, 84 De Franciscî, Pietro, 84�85
Aulus Gellius, 41 de Gaulle, Charles, 14
Delatte, Louis, 69
Balladore--Pallîeri, Giorgio, 23, 30 De Martino, Francesco, 1
Bengel, Johann Albrecht, 40 Derrida, Jacques, 37
Benjamin, Walter, 3, 6, 9, 37, 52-64, 68-69, Dio Cassius, 75, 82
80, 88 Diotogcncs, 69--70, 71
Benveniste, Émile, 39, 76 Dossetti, Giuseppe, w
Berger, Peter L., 65 Duguit, Léon, 26, 29
Bethmann-Hollweg, The.obald Durkheim, Émile, 66--67
von, 26
Biscardi, Arnaldo, 78 Eichm:rnn, Adolf, 38
Biscaretti di Rnffia, Paolo, 23
Blum, Léon, 13 Fleiner, Fritz, 16
Bodin, Jean, 75 Fontanil, Alessandro, 1
Bonaparte, Napoleon, 4, n, 84 Forccllini, Egidio, 42
Brmm, Otto, 15 Fouc;rnlt, Michel, 63
Brcdckamp, Horst, 52 Franco, Francisco, 48
Brüning, Heinrich, 15 Fraschetti, Angns1o, 67-68, 83
Burckhardt, Walther, 16 frazer, Sir James George, 71
Bush, George W,, 3, 22 Frenkel-Brunswick, Else, 74
Butler, Judith, 4 Fresa, Carlo, 16, 18
Fre11d, Sigmund, 66
Caius Gracchus, 49 Friedrich, Carl)., 6, 7--8, 47
Carré de Malbcrg, Raymond, 23 Fueyo, Jesus, 75
Catiline, 49
Cavnîgnnc, Louis Eugène, 12 Gndnmcr, Hans-Georg, 40
Chnrisius, 65 Gaius, 38
Chnteaubriand, François René de, 11 Germ;micus, 65
94 Jndex fodex 95

Gn1ti,;,:1, 1.4, 2�26 .\fommscn, Theodor, 42-45, 47, 48, 49, Sa.ton, William, 65, 67 llipi:m,38
Gruppe, O. E, 70 77~78, 80, Rl Smend, Rudolph, 35
Mom, Aldo, 1;; Spohr, Wemer,3 Vcnme\, H. S., 65-66
tfannihal, 44, 79 Mort;_1!l, Üi$hmtino, 23 Stalin, Joseph, 48 Viesd, Hnmji'irg, 52,
H;,tschek, Julins, 25 MtJSSülini', Benito, 48, 83 Stifter, Ad"lbert 61 Vyshiosky, Andrd Yamrnrievîcli, 63
l hrnriou, ivhmrke, 2; Stohaeus, Joanncs, 69, 70
Hdm,e, Rkhar<l, 73, 81, K;,. N1r0]oon Hl (Lo\Jls Niipnkon Rorn1.pnrtc), Snctonius, 68 W:ig,:nvoùrt, iL 51
Hinrlenhmg, Paul vcrn, 1,5 12 'W.1ldkird1., Eduard Otto von, 16
His, Eduard, i6 Nfasen, Adolph, 42, 45-46, 47, 4-<'i, 4,9, 65, Tautx:s, Tawh, 53 Wü�kim, Fie-éeri�·k M.; 6
Hitler, Adolf, 2, 14, 15, 38, 48., 58, 6S"69, So 'îh:-ilm,mn, Rl.nst, 15- \V,:l:wr, M:rx, 84, &5
83, 84 Noni!les, Pierre, 77 Thom:1,s Aqninas, Saint, z4--25 Weher, SJmuel, 55
Hohhes, Thomas, 51., 75 Tiberius Gr,1;:dms, 44, 49 Wenger, Leop0hl, 81
Hoerni, Robert, 16, :,.3 Opimh1b, Lndw,, 49 Tledemlmn, Rt,lf, 51. Wcstetmarck, Edw:ml Alexander, 7:
Tingsten, Herbert, 6, 7, 12 V..'-ilsnri, Woo<lmw; :n
follinek, Gemg, 26 Paptn, Franz vnn, 15 Triepcl, l-feinrkh, 84, 85
hmg, Carl Gustav, 66 P1slmk:ink EYg:eny, 63 Turner, V. W., 66
Jmt;nhm 1, 37 Pan!, Snint 63, 71, 85
Pi!t':lin, H<-nd ?hni11pe, 14
Kafk.1, fnmz, 63. Bo Pbum:mn, nerhard, 43, 47, 48
Kant, lmnrnnncl, 39 Poincnré, Raymond, 12, 13
Kmtnrowkz, Ernst, 83 Pomponins, 38
Kohler, JoseC 26 Prt'nss, Hngo, 6, 14
Krnm,, Karl, 61 Pst·udo-Archyt::s, 70-71

L:.w;;l, Pierre, lJ
Lèderer. F:mi1, 5:1
Lcnin, Vl:vlîmir Hyi,::h, 34
Lévl.-Stnmss, Ch:ude., 37
Linrnln,_Ahrnhnm, :w--21
Livy, 41., 48�49, 79, 80
Lutkrnann, 11rnmns, 65
R:meilctti, Oreste, 23
Rcinad,, Theodor, 3, 4'7, 5S
Ron1rtno, San-:-l, 17, :1.3, 27---29, 30
Uonsevelt, Franklin [),, 21�22
Ros1iter, Clinton L., 6, 8-9, 13, 18, io, 23, 4ï

Machiavrlli, Nkcolh, 46 S<linH1onnet, Pnmçois, 1

Mad'vfahon, Maria: Rdm<i- P;,trke de, 12. S:1vigny, FrierJ;kh Karl v-nn, 85
Mag,k!:iin, André, 74-S;;: passim SdHttitt, Carl, 1, 3, 6, S, 9, 10, 15, 18, 19, 20,
h.•îJMhiitdt, Wilhdm, 71 1.!,, 30··',)l, 3:;,;,--.36, 4-0, 47, 48, 50, 51, 52-iio,
:\4-,,r,:;·d!ns, Mn,n;<; Gfandins, 68 63,74-75, 84
M,îrrns Anroniun, 45 Schrmr, Roman, &
Marx, Karl, r,3 Schoen, Ernst, 61
lvfathiot, André, 31 Scholem, nershmn, 63
Menli, Karl, 71-71. Schüt;_,, Anton, 1.6
l\lklddl, Emil, 46,�47, 65 Scipio Nasica, 44, 49