Lecture on Agamben’s and Hegel’s state of exception

Introduction
In his book “State of Exception,” Agamben extensively discusses the reasons why he
considers a state of emergency to be the dominant paradigm of contemporary systems of
governance (Agamben 2005: 2). The usual definition of a state of emergency refers to
circumstances in which the legal order is “legitimately” suspended. The constitutions of many
modern states anticipate special or extreme circumstances that allow for the declaration of a state of
emergency. Some of these include the threat of invasion, internal conflicts, and the escalation of
civil war. In today’s context, the fight against terrorism and pandemics is also cited as a reason for
declaring a state of emergency.
In a state of emergency, the legal order is suspended, effectively bypassing what it normally
regulates. In other words, attention is not given to modern political rights of citizens or principles
such as the separation of powers.
Agamben departs from the conventional treatment of this phenomenon and asserts: “[T]he
provisional abolition of the distinction among legislative, executive, and judicial powers – here
shows its tendency to become a lasting practice of government” (Agamben 2005: 7). Although this
problem has a long history, the era of the so-called total war represents a historical moment in
which, according to his opinion, the process of normalizing a state of emergency begins and the
distinction between extraordinary and “normal” functioning is erased: “[W]orld War One (…)
appear as a laboratory for testing and honing the functional mechanisms and apparatuses of the state
of exception as a paradigm of government” (Agamben 2005: 7). More precisely: “[A]lthough the
paradigm is, on the one hand (in the state of siege) the extension of the military authority’s wartime
powers into the civil sphere, and on the other a suspension of the constitution (or of those
constitutional norms that protect individual liberties), in time the two models end up merging into a
single juridical phenomenon that we call the state of exception” (Agamben 2005: 5).
An illustrative example is Hitler’s Nazi regime. When he came into power, he issued the
Decree for the Protection of People and State on February 28, 1933 (die Verordnung des
Reichpräsidenten zum Schutz von Volk und Staat vom 28. 2. 1993.). This decree effectively
remained in force throughout the subsequent history of the Third Reich. It suspended provisions of
the Weimar Constitution related to individual political freedoms, allowing for restrictions on
assembly, freedom of speech, and the press. In practical terms, it granted police authorities
considerable leeway in legal and procedural matters. Consequently, citizens who were perceived as
political opponents of the regime could be arrested and detained without hindrance. Opposition
political organizations were disbanded and banned, and publications deemed problematic were
suppressed.
Agamben, however, warns that one should not lose sight of the fact that “the modern state of
exception is a creation of the democratic-revolutionary tradition and not the absolutist one”
(Agamben 2005: 5). One can speak of a historical trajectory in which the state of emergency
increasingly divorces itself from the demands of actual wartime circumstances, leading to its
transformation into an internal, extraordinary police measure. This measure does not defend
communities against external enemies but rather against internal ones. In fact, paraphrasing
Agamben’s words, the state of emergency has evolved throughout its history from a “real”
military siege to a “fictional” political one (Agamben 2005: 5)! Furthermore, Agamben warns that
one should not lose sight of the fiction that represents the secret, arcanum imperii, of contemporary
political power (Agamben 2005: 86). Since this fiction is the hidden axiom of modern political
power in general, it pertains to all options within the contemporary political spectrum: “The
normative aspect of law can thus be obliterated and contradicted with impunity by a governmental
violence that – while ignoring international law externally and producing a permanent state of
exception internally – nevertheless still claims to be applying the law” (Agamben 2005: 87).
How is it possible for state of exception to become such an encompassing praxis? Agamben
ventures deeper in the institutional-legal base of modernity and the contemporary politics of the
West, and claims that the real relation of modern political power is that in which it confronts “pure
biological life without any mediation” (Agamben 2000: 40). A state of emergency is not merely a
historical or legal-political phenomenon; it is also an indicator of a deeper “metaphysical”
dimension within modern political practice, defined by the category of biopolitics. Building upon
Foucault’s understanding of modern political practice, Agamben further develops this concept as a
form of modern political conditio humana. In his renowned book Homo Sacer, Agamben asserts:
“Politics therefore appears as the truly fundamental structure of Western metaphysics insofar as it occupies
the threshold on which the relation between the living being and the logos is realized. In the "politicization"
of bare life metaphysical task par excellence the humanity of living man is decided” (Agamben 1998: 8).

The category of “bare life,” or the paradox of “inclusive exclusion” of humans as homo
sacer (the title of Agamben’s book on the topic) refers to an ancient institution in Roman law that
allowed a person to be killed at any time (without legal responsibility), but not sacrificed (Agamben
1998: 12). The paradox of this position, according to Agamben, lies precisely in the fact that it is
simultaneously “within and outside the legal order” (Agamben 1998: 15). For Agamben, this
institution is not a thing of the distant past, but a sign of a particular metaphysical experience that
has been "forgotten" in recent Western European history. Today, when the politics of the state of
emergency is at its historical peak, the biopolitical axiom of political power in general has become
visible:
“[T]he decisive fact is that, together with the process by which the exception everywhere becomes the rule,
the realm of bare life-which is originally situated at the margins of the political order-gradually begins to
coincide with the political realm, and exclusion and inclusion, outside and inside, bios and zoe, right and
fact, enter into a zone of irreducible indistinction” (Agamben 1998: 9).

This convergence, the space “occupied” by this inclusion in the form of exclusion from the
community, is most purely exemplified for Agamben in the Nazi concentration camps. These camps
directly link the state of emergency: “The camp is the space that opens up when the state of
exception starts to become the rule” (Agamben 2000: 38). For him, today, the most horrifying
condition inhumana is no longer associated with a specific location or the historical form of the
concentration camp. Instead, it signifies a space where there is no distinction between law and
exception, where there is no institutional or legal mediation, but rather a direct relationship between
life and sovereign decision.
How does Agamben justify this universal possibility of camps in contemporary political
life? How can we find ourselves at any moment in a “parallel universe” – a state of abandonment by
the order and suffering violence for which no one will be held accountable in principle? Author
Lorenzo Chiesa warns that Agamben’s fundamental thesis on the historical nihilistic orientation of
modern politics and Western political culture is insufficiently understood. Chiesa argues that
Agamben’s entire projection of biopolitics onto the Western European political, cultural, and
intellectual space remains underappreciated, especially considering his understanding of
metaphysics as nihilism (Chiesa: 151)! The direct, immediate symmetry between homo sacer and
sovereign power should be examined precisely through this historical trajectory of Western
European metaphysics, or rather its nihilistic “destiny” (Chiesa 2014: 150).
In conjunction with this nihilistic thesis on the negative biopolitical condition of the
possibility of political power or legal order in general, Agamben asserts:
“In the decision on the state of exception, the norm is suspended or even annulled; but what is at issue in this
suspension is, once again, the creation of a situation that makes the application of the norm possible”
(Agamben 2005: 36).

The circularity that arises in explaining this legal circumstance should be a sign of the
“original coupling” that exists, according to his understanding, between legal norms and human life.
It refers to the way in which “law encompasses living beings through its own suspension”
(Agamben 2005: 3). Although the legal order is suspended, this relationship is essential for the
order (Agamben 2005: 51). He states:
“On the one hand, the juridical void at issue in the state of exception seems absolutely unthinkable for the
law; on the other, this unthinkable thing nevertheless has a decisive strategic relevance for the juridical order
and must not be allowed to slip away at any cost” (Agamben 2005: 51).
The category of homo sacer also represents a universal structure, an “original ‘political’ relation,” in the
sense that “bare life (…) operates in an inclusive exclusion as the referent of the sovereign decision”
(Agamben 1998: 85).

The thesis about the continuity of the rule of this political paradigm within the Western
political space is compelling, and recent experiences confirm it. Almost all European governments,
including ours, have essentially adhered to the motto of “business as usual”: in the name of
“protecting public order” – in this case, “public health” – they have neglected the most vulnerable
segments of society and enabled enormous profits and malfeasance for big capital. Starting from the
premise that the connection between life and rights is fictitious, that it represents a void, one can say
that this void becomes the “rule” even in the face of real danger. In fact, it doesn’t matter whether
it’s a genuine threat or one manufactured by consensus; the dominant political practice becomes
“sovereign irresponsibility” (de la Durantaye 2009: 338). Our political life unfolds in a space where
the distinction between law and legal exception has been erased. However, Agamben’s warning –
what is an emergency measure today will become a “normal” mechanism of oppression tomorrow –
is not the problematic aspect.

Political (Benjaminian) or police (Schmittian) state of

emergency
In 1921, Carl Schmitt presented his understanding of the state of exception
(Ausnahmezustand) in his book Political Theology. He began by addressing the question of “who
decides in a situation of conflict what constitutes the public interest or interest of the state, public
safety and order, le salut public, and so on. The exception, which is not codified in the existing legal
order, can at best be characterized as a case of extreme peril, a danger to the existence of the state,
or the like. But it cannot be circumscribed factually and made to conform to a preformed law. It is
precisely the exception that makes relevant the subject of sovereignty, that is, the whole question of
sovereignty” (Schmitt 1985: 6).
Referring to Article 48 of the German Constitution from 1919, which defines the state of
emergency as declared by the Reich President but subject to parliamentary control (Reichstag),
Schmitt recognizes the paradox: lawmakers’ primary consideration, in defining the state of
exception here, is the reestablishment of constitutional order, even though the very circumstance
defined as extralegal (beyond the law) has the power to “legitimately” suspend it (Schmitt, 2015:
17–18). Schmitt points out that if this suspension, along with the emergency measures established
through it, could indeed be limited “by mutual control, imposing time constraints,” then the
question of sovereignty would lose the significance he insists upon, although even in that case, it
would not be entirely irrelevant (Schmitt, 2015: 18).
The state of exception is defined in such a way that, from the moment of declaration, we are
dealing with unlimited power (of the authority whose competence includes the possibility of
suspending the legal order). As Schmitt states, we observe that “the state persists, while the legal
order recedes” (Schmitt, 2015: 18). Paradoxically, the legal order still holds validity, even though it
is no longer in force, precisely because the inviolability of its application in political decision-
making has been suspended. If we accept the thesis that Schmitt, as a student of his mentor Hobbes,
believed that humans, by their nature, inevitably pose a danger to others, given their self-interest,
then we would have a quick answer to why Schmitt saw a strong state with an exclusive monopoly
over violence, including the declaration of a “domestic enemy,” as the implicit part of declaring a
state of emergency (Schwab, 1985: xxii). However, to genuinely protect the constitution from
subversion, Schmitt proposed mechanisms (the so-called “equal chances”) in his work on Legality
and Legitimacy. These mechanisms would prevent militant political parties from coming to power
and support those factions fully committed to preserving the constitutional order (Schmitt, 2012:
34–35).
Unlike Schmitt, Benjamin started from the standpoint that, in addition to the state, only the
organized labor movement represented a legal subject with the right to use violence or force.
Although this right is covered and defined by the legal order, it is recognized as an emergency
measure that paradoxically needs to be limited again, alongside general permission. There is no
doubt, according to Benjamin, that there is a “contradiction in understanding” this right and the use
of force between those who hold this right and those who sanction it:
“The antithesis between the two conceptions emerges in all its bitterness in face of a revolutionary general
strike. In this, labor will always appeal to its right to strike, and the state will call this appeal an abuse, since
the right to strike was not ‘so intended’, and take emergency measures” (Benjamin, 1999: 282).

According to Benjamin’s understanding, the circumstances of class struggle (which,

incidentally, would theoretically undermine the loyalty to the legal order and the “equal chances”
that Schmitt discusses) highlight something characteristic of the relationship between the legal order
and force in general. Political power or violence is twofold: it simultaneously constitutes the legal
order (or the force that establishes law) and is constituted by it, maintaining it (Benjamin, 1999:
284).
In the “normal” state of political practice, in contrast to the state’s monopoly on the use of
force to maintain the legal order, Benjamin identifies the “powerless” protest of individuals or
groups demanding freedom without being able to give it a specific form. He cites Kant’s categorical
imperative as an example of a “nonsensical” higher order of freedom (Benjamin, 1999: 285).
“And most impotent of all when, instead of attacking the legal system root and branch, they impugn
particular laws or legal practices that the law, of course, takes under the protection of its power, which
resides in the fact that there is only one fate and that what exists, and in particular what threatens, belongs
inviolably to its order” (Benjamin, 1999: 285).

Considering different directions for legitimizing force, Benjamin established fundamental

limitations for each of its orientations. The force that, with its own historical victory, established
new legal institutions and order had to, from a historical-political perspective, at least prove itself as
“victorious” and “disclose” the laws. On the other hand, the force that sustains the legal system has,
as its limitation, the circumstance that it does not set its own goals; rather, these goals are given to it
as valid legal institutions and authorities it protects. However, the situation that aligns with the
provisions of a state of emergency arises when the enforcing force becomes the same as the one in
charge of maintaining order. The logic of the state of exception (in Schmitt’s sense) and the logic of
police force, in Benjamin’s view, are one and the same:
“Police violence is emancipated from both conditions. It is lawmaking, for its characteristic function is not
the promulgation of laws but the assertion of legal claims for any decree, and law-preserving, because it is at
the disposal of these ends. The assertion that the ends of police violence are always identical or even
connected to those of general law is entirely untrue” (Benjamin, 1999: 286 – 7).

In a “normal” state, the powerlessness of an individual or group resisting can be seen in the
fact that the enforcing force and the individual or group would at least nominally recognize the
same legal goal – the preservation of law, which may be interpreted differently or violated due to
individual and limited misuse. However, assuming Schmitt’s political paradigm of the state of
exception, we see that an individual or group striking for the affirmation of their freedom stands
against a “nowhere tangible, all-pervasive” even “ghostly presence in the life of civilized states”
(Benjamin, 1999: 287). Historically, this “police spirit/ghost” has belonged to various political
regimes and perhaps always tended toward its own normalization. For Benjamin, however, the
greatest evil lies within democratic societies because it represents the most profound distortion of
force (op. cit).
The right to strike, for example, was primarily granted by lawmakers as a means to avoid
violence “against which the state could not stand” – if the strike is understood as a reaction to a kind
of deception, its historical precursor involved the destruction of tools and machinery, as well as the
burning of factories. In Benjamin’s interpretation of the relationship between force or violence and
the legal order, emphasizing the right to strike is exemplary. He speaks of the interest of legislative
bodies in persuading everyone to resolve their disagreements peacefully within the legal
framework, delegitimizing the use of force as a means to achieve goals and offering legal
alternatives. However, if the notion of a common interest invested in the legal order is demystified
as limited, situational, or ideological (in the context of class struggle), then discrediting the use of
force within the right to strike can be equally nonsensical. Benjamin asserts: “As regards class
struggles, in them strike must under certain conditions be seen as a pure means” (Benjamin, 1999:
291). Thus, the use of force, or violence, takes on the sense of revolutionary struggle that sets its
own goals (as in the case of Sorel’s proletarian strike) completely apart from the existing state and
legal order (Benjamin, 1999: 291).
Hegel’s notion of Notrecht, as an example of a political dispute
Clearly, connecting Hegel’s concept of Notrecht (right of necessity) with the notion of a state
of exception is not an inherently transparent move. Since Notrecht represents a category where law
and morality intersect, we should always interpret it with this complex context in mind.
Furthermore, the reasons for extending this concept, which has a specific place and role in Hegel’s
philosophy of law, to the realm of political theory is neither immediately evident, nor justified. If
such an extension were allowed for the purposes of discussion, the question remains whether it
would be possible to use the term “politics” in its classical sense.
However, if we consider the dialectical nature of Hegel’s philosophy, the state of exception
and order, the exception and the norm – as two opposing forces – can be understood as moments
within a complex dialectical relationship. Traditionally, this tension has been observed in the
relationship between civil society and the state. Following the logic of the development of
categoriality in Outlines of the Philosophy of Right, Notrecht is a concept that precedes the
discussion of civil society and the state. Therefore, at first glance, and even upon further
examination, linking it to the sphere of politics (where the state of exception is essentially
problematized) would be unwarranted.
However, the proximity between the state of exception and Notrecht can be emphasized
more strongly if we consider a different definition of the concept of politics as a guide. This
definition takes shape within the context of contemporary discussions about the state of exception,
and can also be understood in dialogue with Agamben’s understanding. Agamben’s Homo Sacer
was published in 1995, the same year when Rancière’s Disagreement came out. In Homo Sacer, one
discovers an understanding of politics that implies a different conception of the state of exception.
For both Agamben and Ranciere, the circumstances in which a sovereign, rules-based order is
upheld involves a specific “mechanism,” whose explanation invokes Aristotle’s distinction in his
Politics: the difference between bios and zoe (Agamben) or phone and logos (Rancière, 1995: 17–
38). Based on this original difference as their archê, subsequent political history demonstrates an
effort to simultaneously exclude and include what has been excluded (bios and phone). In this way,
it need not grant legitimacy, but rather leaves it powerless, while simultaneously presenting a
semblance of equality in rights and social goods for equality itself:
“From Athens in the fifth century B. C. up until our own governments, the party of the rich has only ever
said one thing, which is most precisely the negation of politics: there is no part of those who have no part”
(Rancière, 1995: 14).

In the situation of a state of exception, according to Agamben, the sovereign’s decision

reduces a person to bare life, while in Rancière’s perspective, it involves resistance precisely to that
mechanism or logic by which one is (apparently) included while being (truly) excluded. For
Agamben, as we’ve seen, if the state of exception becomes the rule, we are all potentially homo
sacer. In contrast, the state of exception that Rancière formulates belongs to the side that offers
resistance, pointing to an essential conflict. This conflict has no predetermined place or subject, but
it also means that any place can become the site of conflict and thus become politically relevant. In
this direction, Rancière primarily redefines the concept of politics to free it from its usual sense:
“Politics is generally seen as the set of procedures whereby the aggregation and consent of collectivities is
achieved, the organization of powers, the distribution of places and roles, and the systems for legitimizing
this distribution. I propose to give this system of distribution and legitimization another name. I propose to
call it the police (...) Political activity is whatever shifts a body from the place assigned to it or changes a
place's destination. It makes visible what had no business being seen, and makes heard a discourse where
once there was only place for noise; it makes understood as discourse what was once only heard as noise (…)
We should not forget either that if politics implements a logic entirely heterogeneous to that of the police, it
is always bound up with the latter. The reason for this is simple: politics has no objects or issues of its own.
Its sole principle, equality, is not peculiar to it and is in no way in itself political. All equality does is lend
politics reality in the form of specific cases to inscribe, in the form of litigation, confirmation of the equality
at the heart of the police order” (Rancière, 1995: 28, 30, 31 - 32).

Therefore, it could be said that Agamben’s understanding of the state of exception is police-
oriented (Schmittian), while for Rancière it is possible to think about it from the context of
redefined politics (Benjaminian). In Rancière’s view, the state of exception belongs to the side that
resists, pointing to an essential conflict (for more details, Leonhardt, : 53).
From the given fragment, we can conclude that for Rancière, equality is not a positive
political principle. Nor does this concept refer to political virtue, as a discussion about it would turn
to the usual theme of the problematic and utopian nature of equality. It seems, in fact, that equality
serves as the initial stage in establishing the police order in Rancière’s sense. To establish a system
of inequality, to base the mechanism of exclusion, an initial assumption of equality and inclusion is
necessary. “For politics to occur”, claims Rancière, “there must be a meeting point between police
logic and egalitarian logic” (Rancière, 1995: 34). As an example, Rancière cites the freedom of the
Athenians as an empty standard. However, abstract citizen rights, specifically abstract legal
equality, as a manifestation of modern civil freedom in Hegel’s view, could also be added to the list
of examples. Anticipating what still needs to be demonstrated, the most crucial dimension in
understanding Notrecht is the insight into the abolition of this equality – recognizing that the
absolute abolition occurs in an extreme case stemming from the normal police order of social
distribution.
Considering the original historical context of the birth of politics and political reflection –
ancient Greece – Rancière argues:
“The empty "freedom" that makes the poor of Athens the political subject, demos, is nothing more than the
meeting of these two systems of logic. It is nothing more than the wrong that institutes the community as a
community based on conflict. Politics is the practice whereby the logic of the characteristic of equality takes
the form of the processing of a wrong, in which politics becomes the argument of a basic wrong that ties in
with some established dispute in the distribution of jobs, roles, and places” (Rancière, 1995: 35).

Therefore, the assertion that Notrecht is a mode of a state of exception implies that Hegel,
like Rancière, recognizes that the political capacity of this ancient institution within civil society
lies in revealing points of potential dispute or injustice in the existing distribution of social wealth –
points to which, according to the empty standard of equality, everyone has a right. The most
evidence for this thesis can be found within Hegel’s understanding of poverty, his insight into the
process of increasing abstraction of labor, and the resulting parallel accumulation of poverty and
wealth as two parallel “logics” of the same system, which will undoubtedly be further discussed.
Ultimately, Hegel clearly attributes to Notrecht not only a revolutionary political status but also a
higher moral position, as it arises from injustice – an effect of the order in which the empty
assumption of freedom is inevitably negated with each specific social distribution and allocation.
Athenian isonomia is not merely the equality of citizens before the law; rather, it is the
equality of all under the law (Rancière, 1995: 61). The same holds true for Hegel: the meaning of
abstract right, which rests on the universality of the right to be persons, is that it represents (a
substitute for) equality. Rancière critically notes that promoting such a quid pro quo belonged
traditionally to the politics of philosophers or the philosophy of politics. Although he does not
mention it by name, the civil legal category of person was formulated to encompass the abstract
right of all to private property (Hegel, 2008: §44, 45; 60). As legal equality, necessarily mediated by
police logic, it cannot be the “equality” that revolutionary politics presupposes in Rancière’s sense.
Hegel himself distinguished between the abstract category of ownership, in terms of abstract legal
equality, and what would constitute concrete possession, in relation to the overall system of social
distribution:
“Of course people are equal, but only qua persons, that is, with respect only to the source from which
possession springs; the inference from this is that everyone must have property. Hence, if you wish to talk of
equality, it is this equality which you must have in view. But this equality is something apart from the fixing
of particular amounts, from the question of how much I own” (Hegel, 2008: ad. §49; 64).

Inequality can indeed be seen as another name for a kind of injustice toward those who have
no stake, as Rancière says, and throughout the history of Western political thought, it has taken on
various articulations.
In final analysis, it is not excluded that, with regard to Hegel’s philosophy of law, one could
speak of a state of exception in both of the mentioned versions. In the section of Outlines of the
Philosophy of Right where he defines the concept of state sovereignty, Hegel explicitly addresses
the state of exception in an appendix. The most important parts of his definition of sovereignty and
its relation to the state of exception are as follows:
“[S]overeignty depends on the fact that the particular functions and powers of the state are not self-subsistent
or firmly grounded either on their own account or in the particular will of individuals, but have their roots
ultimately in the unity of the state as their simple self (...) In times of peace, the particular spheres and
functions pursue the path of satisfying their particular functions and aims (…) it is by the direct influence of
higher authority that they are not only continually brought back to the aim of the whole (…) In a situation of
exigency [Not], however, whether in internal or external affairs, the organism of which these particular
spheres are members fuses into the simple concept of sovereignty. The sovereign is entrusted with the
salvation of the state at the sacrifice of these particular authorities whose powers are otherwise valid, and it is
then that that ideality comes into its proper actuality” (Hegel, 2008: §278; 266 - 7).

The concept of sovereignty can be seen as the ideal or subjectivity of all “distinct spheres
and tasks” that, through direct action or coercion, guides them toward a unified direction. This
description, which Rancière would likely accept as an account of the police regime, is attributed to
the state of exception. In this context, the state of exception only reveals itself or becomes manifest
as a “distinct reality”, embodied in the authority of a single individual – the monarch (Hegel, 2008:
§279; 265). Marx observed that this ideal of statehood, or sovereignty of power, functions as
external compulsion over the “ruling force and private life” during times of “peace,” which is not
necessarily peaceful but, according to Marx, represents “war and exigency of self-seeking” (Marx,
1972: 20). The state of exception provides an opportunity for this ideal to materialize, to consolidate
from fragmentation into organs based on the division of power. However, the “self-realization of the
idea” in the face of the monarch, according to Marx, transforms the individual (monarch) into a
“God-man” (Marx, 1972: 21). The connection between the ruler’s sovereignty and the state of
exception, as explained by Hegel, functions as a mechanism that, borrowing a phrase, turns the
“ideology of the mythical Leviathan into reality” (Mirbeth, 2017: 60). From this perspective,
Hegel’s insight into the link between sovereignty and the state of exception aligns with Schmitt’s
interpretation, particularly in the context of this work – the police interpretation.