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    Giorgio Agamben, Kevin Attell - State of Exception-University of Chicago Press (2005)

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    Leonnel Radinski

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    State of Exception 8 Giorgio Agamben (Chicago and London oroxcio panstaesinprofsnr of a cs at the Univer of Veron He sshesuthr often revs hos, nln the prea #8 one, Home Sta Sourgn Povterand Rare polished a English by Stare Unkssy Press. scnvta arrests postictralfillow nth Engl Depart tthe Univer of aio, Dav, Hes the trlctor of Giorgio Agamibers The ‘The Unters of Chagos Chico o0s7 The Univers of Chiego Pres id, London 2005 by The University of Chicago AM rhe Pied 2008, ried in the United Sate of Amsercn ssn (coh): 036-0092 180 (paper 26-9254 niginntyputished a Sr dl xeon © 203 Real Ponaghi elkone ss, vin, Libary of Congres Cah ng-in-Poblinion Data Agomben Giorgia 942 td cents Engl Seat afecopion Room Incivdes hisngraphieaeetencs(p, ain ssc 36-0094-6 (cath all paper) — rane 29690995-4(pbe atk paper) 1. Warand emergency powers. 2 Sate ofSepe 3. Waeand io Agua stant by Kevin Atl comegency pewees—Barope—History. 4. Woranl emergeney powers United State-—Hitor 5, Site of ige—Farepe—Hivory. 6 Stiteof United Stat—Mistry, Tila vas6.343 2005 {@ Me perdi his pation mes hen equzements of 1h Ameria Nihon tnd fr kformation Scknese—Rermanenc of perfor Ponte Ura Materia, aN 23948-1953 Contents Translators Note vi 1 The State of Fxception asa Paradigm of Government 3 Force-of Law 2 Ihttium 31 1 Gigantomschy Conceeninga Youd 52 Feast, Mourning, Anomie 65 Auctortas and Potestas 74 References 85 Index of Names 93 ‘Translator’s Note ‘Wherever possible, have included references to published English tranalations ‘of Agamben’ Trench, German, and Taian sources in the references ist How- ‘ever, inorder to maintain consistency in terminology throughout the text, and tobetier reflec Agamben'savetranslations of these sources, the published ng- lish ersions have frequently been modified. Where an Englshecitionilisted in ‘thetibliograpy, che ist page nuraberin the text citation seers tothe original, and the secand tothe English edition (e4 [Benfarnin 142, 697/357}). Where ‘no English edition is sted, the translation is mine | would lik to give my deepest thanks to Coortaey Booker, David Copen- afer, Stmuel Giers,Siietta Simoncini and to Giorgio Agamnben for ther gen ‘tous help in preparing this translation Quavesitetisjuristae in munere veto? [Why are you jurstssilent about chat which concerns yout 18 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 defisition of the sovereign a decides on the state of exception” has been widely commented on and discussed, there is still no theory of the state of exception in public lay, and jurists and theorists of public law seem to regard the problem more asa quaestio facti than as a genuine juridical problem, Not only is such. a theory deemed illegitimate by those authors who (Following the an cient maxim according to which necssitas legem non habet {necessity hhas no Iaw]) affirm that the state of necessity, on which the exception is founded, cannot have a juridical form, but it is dificult even to ar- rive ata definition of the term given its position at the limit between politics and law. Indeed, according to widely held opinion, the state of exception constitutes a ‘point of imbalance between public law and politcal fact” (Saint-Bonnet 200, 28) that is situated —tike civil was insurrection and resistance—in an “ambiguous, uncertain, borderline fringe, at the intersection ofthe legal and the political” (Fontana 1999, 36). The question of borders becomesall the more urgent: if exceptional measures are the result of periods of political crisis and, as sueh, must bbe understood on political and not juridico-consttutional grounds (De Martino 197,320), then they find themselves inthe paradoxical position of being juridical measures that cannot be understood in legal terms, and the state of exception appears as the legal form of what cannot have legal form. On the other h if the law employs the exception—that is the suspension of law itselias its original means of referring to and encompassing life, then a theory ofthe state of exception isthe inary condi same time, abandons the living being to aw. 1s this no-man’s-land between public law and political fact, and between the juridical order and life, that the present study seeks to on for any definition ofthe relation that binds and, atthe 2 Chapter One investigate, Only ifthe veil covering this ambiguous zone i lifted will we be able to approach an understanding of the stakes involved in the Aifferenco—or the supposed difference—between the political and the juridical, and between law and the living being, And perhaps only then Vite possible to answer the question that never censes to reverberate inthe history of Western politics: what does it mean to act politically? 14 One of the elements that make the state of exception so difficult to defines certainly its close relationship to evi wat insurrection, nd resistance, Because civil war isthe opposite of normal conditions it es ina zone undecidability with respect tothe state of exception, whichis state poner's immediate response tothe mostextreme internal confit “Thus, over the course of the twentieth century, we have been able-to witness a paradoxical phenontenon that has been effectively defined as a “legal civil war” (Schnur 1983) Letus take the ease ofthe Nazi State. No sooner did Hier take power (or as we should peshaps more accurately say, no sooner was power given to him) than, on February 28, he pro aimed the Decree fr the Protection ofthe People and the State, which suspended the articles of the Weimar Constitution concerning persons liberties: The decree was never repealed; so that from a juridical stand- point the entire Third Reich can be considered a state af exception that lasted twelve yeas, n this sense, modern totalitarianism can be defined as the establishment, by means ofthe state of exception, ofa legal civil war that allows for the physical eimnation not only of political adver saries but of entre categories of etizens who for some reason cannot be tegrated into the political system. Since then, the voluntary eretion of permanent state of emergency (though perlaps not declared in the technical sense) has become one of the essential practices of contempo: rary sates, including so-called democratic ones Faved with the unstoppable peogzession of what has been called a “global civil war” the state of exception tends increasingly to appear as the dominant paradigm of government in conteinporary politics. This transformation of a provisional and exceptional measure into a technique of government threatens radically 10 alter—in fact, has al ready palpably altered—the structure end meaning of the traditional distinction betiveen constitutional forms, Indeed, from this perspective, ‘TheSteteof ception asa Paradigm of Government 5 the state of exception appears as a threshold of indeterminacy between democracy and absolutism, 'X The expression “global civil war” appeats in the same year (i963) ia oth Hanah Arends On Revolution and Carl Schmit’ Theor ofthe Paetisan: How ever, a8 we will se, the distinction between a “real state of exception” (état de siege effcif) and s “Bettis sate of exception” (état deste flit) goes bbackto French public aw theory and wasaleady clesryariculatedin Theodor Reinach’s book De Peat de sty, rude historique e juridique (984s), which isat the origins ofthe Schmittian and Benjaminian apposition betwee real and a fictitious state af exception. Anglo-Saxon jrisprudence prefers speak here of "Tancied emengeny” For their part, Nasi jurists spoke openly of a gewoile ‘Avonahmezutand, a *willed state of exception? "for the sake of establishing the National Socialist State” (Werner Spo, quate in Drokische and Wieland 1993, 8). 13. The immediately biopolitical significance of the state of excep: tion as the original structure in which law encompasses living beings ‘yy means of its own suspension emerges clearly in the “military or- der” issued by the president of the United States on November 1, 200% which authorized the “indefinite detention” and tial by “military com- missions” (not ¢o be confused with the military wibunals provided for by the lay of wat) of noncitizens suspected of involvement in terrorist activities, ‘The USA Patriot Act issued by the U.S. Senate on October 26, 200, already allowed the attorney genes} to “take into custody” any alien suspected of activities that endangered “the national security of the United States,” but within seven days the alien had tobe either released or charged with the violation ofimmigeation laws or some other crimi- nal offense. What is new about President Bush’ order is that it radically crases any legal status of the individual, thus producing a legally un- namable and unclassifisble being. Nat only do the Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva Convention, they do not even have the status of persons charged with «crime according to American las. Neither prisoners nor persons ac- cused, bu simply “detainees” they ate the object ofa pure defacto rule, 4 Chapter One of a detention that is indefnite not only inthe temporal sense but in its very nature as well, since itis entirely removed from the law and from. jindicial oversight. The only thing to which itcould possibly be compared is the legal situation of the Jews in the Nazi Lager [camps], who, along with theic citizenship, had lost every legal identity, bue atleast retained their identity as Jews. As Judith Butler has effectively shown, inthe de- twinee at Guantinamo, bare life reaches its maximum indeterminacy, 1.4 The uncertainty ofthe conceptis exactly matched by terminolog- ical uncertainty The present study wil use the syntagma state of excep- tion asthe technical term for the consistent se oflegal phenomena that, itseeks to define, This term, whichis eoramon in German theory (Aus- tuahmezustand, butalso Notstand, “state of necessity”) is foreign to al- ian and French theory, Which prefer to speik of emergency decrees and state of slege (political or fetitios, état de sige fictf). kn Anglo-Saxon theory. the terms martial law and eamergency powers prevail If,ashas been suggested, terminology isthe properly poetic moment of thought, then terminological choices can never be neutcal. In this sense, the choice ofthe term state of exception inmlies position taken on both the nature of the phenomenon that we seek Co investigate and the logicmost suitable for understandingit. Thoughthe notions of state of siege and martial law express a connection with the state of war that has been historically decisive and is present to this da, they neverthe- less prove to be inadequate to define the proper structure of the phe ‘nomenon, and they must therefore be qualified as poiial or fis, terms that are themselves misleading in some ways. The sate of excep tion is nota special Kind flav (like the law of war); athe, insofar as it ‘sa suspension of the juridical order isl t defines la’ teshold ot Jimi concept. 18 The history ofthe term ftitious or potsen sate of seg is instructive in this regard, Ir oes eck to the French doctrine that—in reference o Napoleor's de «rea of December 24, 181~—provided for the possibility ofa state of siege that the emperor could declare whether oF nota city was actually under attack or Aircetly threatened by enemy forces, “whenever cizcumstances require giving ‘more forces and more power tothe military police, without it being necessary as souale ale boy The Stat of Bexption la Paradigm of Government 5 to put the place in a state of siege” (Reinach 1885, 19). The institation ofthe state of siege hos is origin inthe French Constituent Assembly decree of July 52791 which distinguished among état de pais, in whick military authority and iil authority each actin its own sphere: état deguerr in which civil authority must act in convert with military anthoritys and éat de ge, in which “al the functions entrusted to the civil authority for maintaining order and internal policing pas to the military commander, who exercises thera under his excl sve esponsibility” (bid). The deere referred ony to miltarystrongholds and ports, but with the law of 19 Fructidor Year 5 the Directory assinilated munic- pales in the interior with he strongholds and, withthe law of 18 Feuctidor of the same year, granted itself the right 19 pt a city im a state of cege, The subsequent history of the state of siege isthe history of its grail emancipa tion from the wartime situation to which it was originally bound in order to bbe used as an extraordinary police measure to cope with internal sedition and public, beginning with Brining’s, made continual use of Article 48, proclaiming, state of exception and ising emergency decrees on more than two hundeed and ity occasions; amsong other thing, they employed ittoimprison thousands ‘of communist militants and to set up special trfbunals authorized to pronounce ‘capital sentences. On several accasions, particularly in October 192) the govern rent had recourse to Article 48 to cope with the fl ofthe mar, thus confirm: ing the modern tendency to conflate politca-military and economic crises, kis wellknown thatthe last years ofthe Weimar Republic passed entirely un der aregime ofthe state of exception; ts less obvious to note that Hitler coal probably net have taken power had the country nat heen ander areginse of pres dental dictatorship for nearly eee years and had parliament bee ing n July 193, the Bring government was pat in the minority, but Brining id not resign, steed, President Hindenburg, granted him recourse to Article function {48 and dissolved the Reichstag Prom that moment on, Germany infact ceased tobe s parliamentary republic, Parliament met only seven times for no longer shan ewelve months in all, while a fluctuating coalition of Social Democrats and centrits stood by and watehed @ government that by then answered only tthe president ofthe Reich. In 1952, Hindenburg—eelected president over Hitler and Thilmann-—forced Beining to resign and named the centest von Papen to hispost. On June 4, the Reichstag vas dissolved and never reconvened url the advent of Nazism. On fuly 20,2 state of exception was proclaimed inthe Prussian territory, and von Papen was named Reich Commissioner for Prussia—ousting ‘Otto Braun's Social Democratic government ‘Thestate of exception in which Geranany found tel during the Hindenburg presidency was justified by Schmitt on a constitutional level by the idea that the president acted as the “guardian of the constitaion” (Schmitt1931; but the end ‘ofthe Weimar Republic clearly demonstrates that, on the contrary, a “protected democracy” isnot a democracy at all, and thatthe paradigm of constitutional icttozehip functions inst as. transitional phae that leds inevitably tothe establishment of totalitarian regime. Given these precedents it is understandable thatthe constitution of the Fed cxal Republic did not mention the state of exception. Nevertheless on Tune 24, 2964, the “grand coalition” of Christan Democrats and Social Democrats passed 6 Chapter One law fortheamendment ofthe constitution (Gesete aur Engiinzung des Grund setzes hat introduced the state of exception (defined as the “state of internal secessity” mere Notstand), However, with an unintended irony, for the first {ime in the history oft institution, the proclamation ofthe sate of exception ‘was provided for not simply safeguard public order and security, but 10 de fend the “liberal-democratic constitution” By his point, protected democracy Ihad become the rule, (On August 3,914 the Swiss Federal Assembly granted the Federal Council “he unlimited power to fake all measures necessary to guarantee the security, tegrity, and neutrality of Switzerland” Tie unaswal act—by vittue of which a ‘son-warring state granted powers tothe executive that were even waster and: vaguer than those received by the governments of dectly involved in the war—is of interest because of the debates it provoled bath in the assem- by itself and in the Swiss Federal Court when the citizens objected thatthe act ‘was unconstitutional. The tenacity with which on this occasion the Swiss jurists {nearly thirty years ahead ofthe theorists of constitutional dictatorship} sought (lke Waldkirch and Burckhardt) to derive the legitimacy ofthe state of excep- tion from the text ofthe constitution itself (specifically, Article 2, which read, “the aim ofthe Confederation is to ensure the independence ofthe fatherland ‘against the foreigner [andl] to maintain internal tranquility and onder") or like Hoerniand Feiner to ground the state of exception inaaw of necessty"iaher- ‘ent in the very existence ofthe State” or (like His} in a juridical lacuna that the ‘exceptional provisions mast fil, shows thatthe theory ofthe state of exception isby no means the exclisive legacy ofthe antidensocratic tradition, In Italy the history and legal situation ofthe state of exception exe of particular interest with regard to legislation by emergency executive [governativi decrees (dhe so-called aw decrees). Indeed, from this viewpoint one could say that aly fctioned asa true and proper juidico-politicalnborstory for organizing the process (which was also occurring to differing degrees in other European stats) by which the law-decree “changed fou a derogatory end exceptional instr tent fo normative production to an ordinary source for the production of live (Ftesa 108,356). But this also means that ane ofthe essential paradigms through which democracy is transformed from pariamentary toexecutive [gov «ermamentale| was elaborated precisely by a state whose governments were often unstable, n any cas, iis in this context that the emexgency decrees pertinence to the problematic sphere ofthe state of exception comes clearly into view. The The Ssteof Exception sea Paradigm of Government 17 Albertine Statute (like the current Republican Constitation) made no mention ofthe stateofexception. Nevertheless, the governments ofthe kingdom resorted to prelaiminga state of ioge mony times in Palermo and the Sicilian prewinces in R62 and 8665, Naples in 386, in Sicily and Langa in a4, and in Naples and Milan jn 2898, where the repression of the disturbances was particularly bloody and provoke bitter debates in parliament. The declaration of 2 state of sige on the occasion of the earthquake of Messina and Reggio Calabria on December 28, 1908 is only apparently a different situation, Not only was the state of siege ultimately proclaimed for veasons of public order-that i to sup: press the rabberies and looting provoked by the dissster—but froma theoretical standpoint, i is also significant that these acts furnished the occasion that al Towed Santi Romano and other Italian jurists to elaborate the thess (which we ‘amine in some deal later that agcensty i the primaty source ofa Im cach of thete cases, the state of siege wns proclaimed by a royal decrea tha, while not requiring parliamentary ratification, was nevertheless always ap- proved by pasliament, os were other emergency decrees not related tothe state of siege (n 933 andsg24 several thonsind outstanding ase-decres issued in the receding years were thus converted into law). in yon the Fascist regime hada Jaw issued that expressly regulated the matte ofthe hw-decrees. Article 5 of this aw established that, upon deliberation ofthe council of ministers, “norms having force of aw” could be issued by royal decree “(2) when the government is delegated to dos by a aw within the limits of the degation, and {2} in ex {taordinary situations, whic is required for reasons of urgent andl absolute necessity, The judgment concerning necesity and urgency isnot subject to any ‘oversight other than parliament's politcal oversight” The decrees provided for {nthe second clause ad to be presented 1 parliament fr conversion into las bot pastiament'total loss of autonomy during the Fascist regime rendered this condition superduous Although the Fascist governments abuse of emergency decrees was so great ‘that in 1939 the regime itself felt it necessary to limit their reach, Article 77 of| the Republican Constitution established with singular continity that “in ex- traordinary situations ofnecesty and emergency” the government couldadept “provisional measures having force of law” which had to be presented the same {day to parliament and wich went out of effect ifnot converted into law within sixty days of ther issuance Tes well known that since then the practice of executive [governamentale] legislation by lw-decrees has become the rule in italy. Not only have emergency 18 Chapter One decree been issue in moments of political cris, thus cccumventing the coa- sstutional principle that the right of the cftzens an be Himited only by Iw (se, for eximpl, the decrees ised forthe repression of terrorism: the la dectee of March 28, 978 59, converte into the law of May 31978, n. 91 Uwheso-ciled Moro Law, and the nw deere of Deceber 5,1979 65 com verted tothe law of Febranry 6,198, n.15), but lawecrees now constitute ‘he normal form of legislation to such «degree that they have been described 8 “ills strengthened by guaranteed emergency” (esa 19h, 192) This means {hat the democratic principle ofthe separation of powers hes today callapsed and that he exeutive power has infact at least partially, absorbed theless tive power. ariament sno longer the sovereign legislative boy that holds the ‘exclusive power to bind the citizens by mesins of the law smite to ratify lng the decrees issued by the executive power, Ina technical sense, the Htlign Republic no langer parliamentary, but executive {gaveramentle). And itis significant that though this transformation ofthe constitutional order (whichis today underway to varying degeesin all the Western democracies) is perfectly ‘well know to jurists and politicians, it has remeined entirely unnoticed by the ‘itizens, At the very moment whe it would like to ive lessons in democracy to diferent traditions and cultures, the politcal culture ofthe West does not ‘alae that it has ently lost ts canon, The only legal apparatus in England that is comparable to the French éat de sidge goes by the term martial law; but this concept eso vague that it has been rightly described as an “unlucky name for the justification by the common Ew ‘of acts done by nocesity forthe defence of the Commonwealth when thete {is war within the realm” (Rossiter 1948, 143), This, however, does not mes that something ike a state af exception con not exis, In the Mutiny Acs, the Crown’s power to declare martial law was generally confined t times of| ‘war, nevertheles, it necessarily entailed sometimes serious consequences for {the civilians who found themselves factsllyiavolved inthe armed repression, ‘Thos Schmitt sought to distinguish martial la from the military telunals and summary proceedings that at ist applied only to so ‘of as purely factual proceeding and draw it closer to the state of exception “Despite the name t bears, marta law is either right nora law in this smse, in onder ta conecive but rathera proceeding guided essentially bythe necesty of achievinga certain end” (Schmitt 190,172) World War One played a decisive cole inthe generalization of exceptional “The State of Erepton asa Panadign ofGovernnent 39 executive [governamentali] apparatuses n England aswell. Indeed, immediately ster yr wae declared, the government asked parliament to approve a setes of emergency measures that had been prepared by the relevant ministers, and they ‘were passed virtually without discussion, The most important of these acts was the Defence ofthe Realm Act of August 42914, own as DORA, which not only granted the government quit vast powers to regulate the wartime economy also provided for serious limications on the fundamental rights of the citizens (in particular, granting military tbunals jurisdiction over civilians), The activ ity of partiament sara significant eclipse foe the entire dur asin France, And in England too this process went beyond the emergency of the war, as is shown by the approval—on October 29,1920, in a time a strikes and social tensions—of the Emergency Powers Ac. Indeed, Article 1 of the act, jan of the war, just stated that Lilfat anytime it appears to His Majesty that any action hasbeen taken or is ‘immediately threatened by any persons or body of persons of such a nature sand on so extensive a scale 95 to becalcuated, by interfering with the supply and dstribotion of food, wer, fie, of light, oF with the means of locomo- tion, to deprive the community, ac any substantsf portion of the commu nity, of the esentialsoflife, His Majesty map, by proclamation (hereinatter referred to asa proclamation of emergency) declare thatastateof emergency Article 2of the law gave His Majesty in Council the power io isiue regulations land o grant the executive the “posrers and duties... necessary forthe preser vation ofthe pice” andi introduced special courts (“courts diction”) for offenders. Bven though the penalties imposed by these courts could jotexceed three months in jal (Sith or without hard labor”), the principle of the state of exception had been firmly introduced foto English law. summary js “The place—both logical and pragiatic—of theory of thestate of exception in the American constitution isin the dialeetc between the powers the president and those of Congress. Tis dialectic has taken shape historically (and in an exemplary way already beginning with the Chil War) a conflict over supreme authority in an emergency siation; of in Selsnittion terms (and this is surely sSguificant ina country considered tobe the cradle of democracy}, a conflict ‘over sovercign decision, 26 ChapterOne ‘The textual bass of the conflict ies frst ofall in Article x ofthe eanstution, ‘whieh establishes that "the Privilege of the Writ of Habeas Corpus shall not ‘be suspended, unless when in Cases of Rebellion or Invasion the public Safety tay require it" but does not specify which authority as th jurisdiction to de- «ide onthe suspension (even though prevailing opinion and the context ofthe passage itselflead one to assume thatthe clause is diected at Congress and not the president), The second point of conflict ies in the relation between another [assoge of Actile 1 (which declares thatthe power to declare war and to rise ‘nd support the army and navy rest with Congress) and Article a, which states that It }he President shall be Commander in Chief ofthe Army and Navy ofthe ‘United States” Both of these problems reach their critical threshold with the Civ? ee (1861865). Acting counter tothe text of Article, on Aprils, 1861, Lincoln de~ creed tht an army ofseyenyfive thousand men was tobe raised ad conned a special sesion of Congress for Jay 4 Inthe ten weds that pased between Apel as and July 4 Im his book Dictatorship, Schmit cam eer to tas pest example of com aissrial diewtorship se 192,19). On Apr 27, with technically even more significant decision, he authorized the General in Chie ofthe Army to sus pend the wit ofhabeas corpus wheneverhe deemed it ecesary along military Tinesbet wen Woshington and Philadelphia, where there a bes Farthermaore, the president’ autonoray in desing on eatrdordinaty measures continued even after Congress was convened (thus, oa February 4286, Line

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