agamben state of exception summary

• December 20, 2020
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The connection between iustitium and mourning, according to Agamben, reveals its “true meaning” within this context: If the sovereign is a living nomos, and if, for this reason, anomie and nomos perfectly coincide in his person, then anarchy (which threatens to loose itself in the city upon the sovereign’s death, which is to say, when the nexus that joins it to the law is severed) must be ritualized and controlled, transforming the state of exception into public mourning and mourning into iustitium. In this sense, the “real state of exception19”, that anomic zone where “violence without any juridical form acts” unmasks the attempt of “state power to annex anomie through the state of exception” as a “ fictio iuris par excellence, which claims to maintain the law in its very suspension as force of law. This arbitrary, and indeed sovereign decision, is in turn premised on the particular interpretation given to it by the adjudicator in light of the unique circumstances of the case and their own individual biases and beliefs about law and world. “If the state of exception’s characteristic property is a (total or partial) suspension of the juridical order, how can such a suspension still be contained within it [the juridical order]” (23). Its function is to depose11 the dialectic between lawmaking and law-preserving violence and in so doing establish a new historical epoch. Let’s consider the example of how the law, which is an abstraction much like the norm, comes to refer to the empirical world and acquires it legitimacy. The latter holds that “the sphere of law exceeds the norm” (ibid.). One norm of Canadian public law has is that the law should be interpreted in a manner that respects rights. Such theorizations are fictitious because the authority so described only acquires its appearance “from the suspension or neutralization of the juridical order–that is, ultimately, from the state of exception” (85). In such extreme situations where the norm is in force but not applied, and acts that lack the value of law acquire their force “the force of law”, those decrees that executive power is authorized to issue in exceptional situations which possess the force of law: Floats as an indeterminate element that can be claimed both by the state of authority (which acts as a commissarial dictatorship) and by a revolutionary organization (which acts as a sovereign dictatorship). The dialectic between authority and power will continue to function insofar as authority and power “remain correlated yet conceptually, temporally, and subjectively distinct (as in republican Rome’s contrast between the Senate and the people [...])” (86).  However, as our time reveals, a potentially lethal situation can arise, however, where power and authority merge in one person and/or institution37. Whilst engaging with various publications by this well-known philosopher, I will focus mostly on the arguments that he develops in A. Agamben, Homo Sacer: Sovereign Power and Bare Life (1998) and in A. Agamben, State of Exception (2005). “It constitutes him as auctor of the highest standing, as he who legitimates and guarantees the whole of Roman political life” (82). The state of exception is an anomic space in which what is at stake is a force of law without law (which should therefore be written: force-of-law).6 Such a force of law, in which potentiality and act are radically separated, is certainly something like a mystical element, or rather a fictio by means of which law seeks to annex anomie to itself (38-9). 1.1. Giorgio Agamben provides a thorough historical and legal contextualization of the state of exception, defining its critical nature and development. Besides functioning to legitimize the autonomous moment of the decision, the trial also serves to construct a referential relationship between the law and reality which in turn “is guaranteed by institutional power” (40). The Exceptional Life of the State: Giorgio Agamben Õs State of Exception Giorgio Agamben, State of Exception. Treating it as quaestio facti (in the Kantian sense of a debate over its conceptualization within legal theory), modern scholars have conceptualized the phenomenon using terms (i.e., emergency decrees, state of siege, martial law, emergency powers etc.,) that fictitiously characterize it as a “special kind of law.”  Two normative frameworks dominate the Western scholarship on the phenomenon. Giorgio Agamben, “The state of exception provoked by an unmotivated emergency” This is a translation of an article that first appeared as “Lo stato d’eccezione provocato da un’emergenza immotivata,” in il manifesto , 26 Feb, 2020. Secretly nestled between the abstract universal norm and its concrete application, therefore, is the ephemeral decision which vanishes into thin air just as quickly as it is enunciated (norm-decision-application). Everything happens as if both law and logos needed an anomic (or alogical) zone of suspension in order to ground their reference to the world of life. What is at stake in both frameworks, therefore, “is the question of the juridical significance of a sphere of action that is in itself extrajuridical” (11). Analyzing the legal and political theory that has given rise to the state of exception, Agamben delivers a highly detailed description of this legal concept. In the final pages of his treatise, Agamben draws some provisional conclusions from his investigation of the state of exception. A state of exception is a concept introduced in the 1920s by the German philosopher and jurist Carl Schmitt, similar to a state of emergency but based in the sovereign's ability to transcend the rule of law in the name of the public good. The key point of interest for Agamben is that the first Roman emperor “defines the specificity of his constitutional power [...] in the vaguer terms of an authority” (81). Giorgio Agamben provides a thorough historical and legal contextualization of the state of exception, defining its critical nature and development. The Western juridical system is held together by two elements: 1) a normative and juridical (power) and 2) an anomic and metajuridical (authority) (86). Pure violence, in this sense,  “manifests” itself “only as the exposure and deposition of the relation between violence and law22” (62) and in this way functions, contra the force-of-law, as a pure means without any relation to an end. It is a hybrid of rule of law and fact where they become indistinguishable. In certain instances the norm’s application seems to flow effortlessly from the norm (e.g. Benjamin’s description of the “baroque sovereign14”, Agamben contends, is a response to Schmitt’s theorization of sovereignty and its exclusive prerogative. The example of revolution, Agamben claims, highlights that necessity can only be framed as an anti-juridical phenomenon when viewed in relation to the “positive law of the state against which it is directed” (Romano, 1983: 224) (Agamben, 28). For Schmitt, pure violence is impossible since the purpose of the sovereign decision is to subsume pure violence under the juridical order through the state of exception12 13 (54). This is precisely what the force-of-law (which keeps the law working [in opera] beyond its formal suspension) seeks to prevent (64). Agamben deftly considers the historical and philosophical implications of this power, offering a brilliant consideration of ’life’ and its tense relation to normativity. In such contexts where the state of exception becomes the rule,  “the normative aspect of law can [...] be obliterated and contradicted with impunity by a governmental violence that–while ignoring international law externally and producing a permanent state of exception internally–nevertheless still claims to be applying the law” (87). In “Political Theology” (1922), building off earlier conceptualizations of “commissarial dictatorship” and “sovereign dictatorship”, Schmitt plays off the distinction between norm (Norm) and decision (Entscheidung and Dezision) in order to annex the state of exception to the juridical order via the figure of the sovereign, the entity defined by virtue of their unique prerogative to decide the state of exception. The iustitium, stated differently, responds to necessity. And how can it be distinguished from the force of law? Turning to Fraschetti (1990),  Agamben argues that these two articulations of iustitium are connected insofar as they are situated within context of social and political uncertainty (i.e., tumult). Agamben rejects the Marxist view of the state as superstructure, and does not see power as mystified. Are Proposals For A World Republic Defensible? Focaultian Biopower In his analysis, Agamben refers to the theory of biopower put forward by social theorist Michael Foucault. What now takes its place are civil war and revolutionary violence, that is, a human action that has shed [deposto] every relation to law” (59). In Foucaultian terminology when sovereignty ended, biopolitics began (Foucault, 142). The state of exception allows for a unique interaction between sovereign nations and their laws. ISBN: 0-226-00924-6 Abstract This review essay examines in some detail Giorgio Agamben’s recent State of Exception, his It suspends the juridical order where the law looses its ability to guarantee social order25 (46). The key point here is to understand that Agamben regards the abstract (“universal”) norm and there sphere of its practical application as two conceptually distinct, radically unbridgeable concepts. In this context, auctor takes on a precise legal meaning in relation to the transfer of the res republica from his hands to those of the people and the senate. Rather, Agamben’s state of exception is “a zone of absolute indeterminacy between anomie and law” (57). In this sense, the “perfect legal action” consists of a duality of subjects/elements–that is, authority and power–which are conceptually distinct yet comprise a binary system that functions to convey judicial validity or legitimacy onto human action (78). In both cases, the conflict seems to concern an empty space: on the one hand, anomie, juridical vacuum, and, on the other, pure being devoid of any determination or real predicate. In Chapter 2, “Force of Law Without Law”, Agamben critically appraises Schmitt’s theory theory of state of exception/sovereignty in order to develop his conception of the state of exception as an ambiguous zone of indistinction connected to the juridical order. Agamben hypothesizes that law that exists in this new historical epoch, is a law that lacks force and/or application23. Hence, that law and life are tightly bound in a reciprocal grounding such that law can only acquire its meaning in relation to life (and vice versa), is expressed in the dialectic of authority and power: “The norm can only be applied to the normal situation and can be suspended without totally annulling the juridical order because in the form of authority, or sovereign decision, it refers immediately to life, it springs from life” (85). The passage from langue to parole (or from the semiotic to the semantic), which represents the movement from a generic proposition (with an abstract or virtual reference to the empirical world) to a generic proposition with its (apparently) concrete reference to the empirical world, is practical activity that concerns the actual relation of language and world. However, necessity is always subjective (30). As Gadamer observed, if the application of the norm was contained within and derivable from the abstract norm “there would have been no need to create the grand edifice of trial law” (40). In the final portion of Chapter 1, Agamben attempts to flesh out his conceptualization of the state of exception through a history of the inclusion of the state of necessity in the juridical order of the modern age (24). The assertion that the “state of exception has become the rule18” evokes the understanding of the state of exception as a zone of absolute indeterminacy. Agamben, Giorgio. For now it is enough to consider the distinction between norm and application. 28–29. Although deliverance from the state of exception in which we live to a state of law is impossible, it is possible, Agamben concludes, to reveal the central fiction of the juridico-biopolitical machine since between violence/law and life/norm no substantial articulation exists (87). Consequently, when the exception becomes the rule, the technique through which law acquires its legitimacy looses its functionality (58). In either case, the principle of necessity reveals the its revolutionary character of the emergency. Throughout this chapter Agamben makes a very subtle argument about the relationship between law and reality–between language and reality–which exploits binary oppositions of legal discourse such as norm/application. In Chapter 3, “Iustitium”, Agamben examines the “authentic, but more obscure, genealogical paradigm” of the modern state of exception [Ausnahmezustand] in Roman law: the iustitium (48). Unless the President is able to subvert this process as well with the state of exception, the electorate may abandon the President in favor of a completely different candidate. “Upon learning of a situation that endangered the Republic, the Senate would issue a senatus consultum ultimum [final decree of the senate] by which it called upon the consuls24 [...] and even, in extreme cases, all citizens, to take whatever measures they considered necessary for the salvation of the state” (41). Here, Augustus stands as as the “auctor [or guarantor] of the rights rendered to the people and the Senate” (82). Extended Summary of Agamben’s State of Exception (draft) In State of Exception (2005), Agamben advances three theses. The first move to this end is to criticize the classical reduction of theory of the state of exception to the theory of the state of necessity (i.e., status necessitatis). Zōon Politikon’s Doppelgänger: Comparing the Political Existence of Man in the Political Philosophies of Aristotle and Aquinas, The Meaning of Labour In John Locke’s Theory of Labour, Introduction to the History of the War Measures Act (Working Draft), The British North America Act (1867): Emergency Power and Implied Rights. Your email address will not be published. With biopolitics, human life becomes the target of the organizational and institutional power of the State (Foucault, 143). Each denies the possibility “of a sphere of human action that is entirely removed from law” (11). The first frames the phenomenon as a juridical phenomenon and thus argues that it ought to be regulated through law. Nevertheless, on June 24, 1968, the 'great coalition' of Christian Democrats and Social Democrats passed a law for the amendment of the constitution (Gesetz zur Ergänzung des Grundgesetzes) that reintroduced the state of exception (defined as the 'state of internal necessity,' innere Notstand). Chapter 1 “The State of Exception as a Paradigm of Government,” begins  with the observation that public law lacks an adequate theory of the state of exception (1). In light of the irreducible ambiguity that such feasts dramatize, the relation between law and life, reveals itself as the primary stake in the dialectic between anomie and law (73). ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, February 2007, pp. By constructing a zone of undecidability between “anomie and nomos, between life and law, between authority and power”  the state of exception at once articulates and binds the normative and anomic elements constitutive of the juridico-[bio]political machine. In Chapter 5, “Feast, Mourning and Anomie”, Agamben analyzes the shift in the meaning of  the term iustitium after the birth of the Roman Empire where it became associated with the time of institutionalized chaos between the death of an emperor and the inauguration of a successor (65-66). The concept of necessity, Agamben argues (citing Balladore-Pallieri) is wholly subjective and dependent upon the particular objective or end sought (30). These frameworks are also inadequate because they imply a topological structure–i.e., inside/outside–which neither accounts for necessity emergency or the state of exception. This modern theory of authority, Agamben thus claims, entails a forceful affirmation of “law’s claim that it coincides at an eminent point with life”.  In this way, this theory converges with “the tradition of juridical thought that saw law as ultimately identical with–or immediately articulated to–life” wherein life-itself grounds the validity of the norm as well as its content (85). Drawing on the writings of Thomas (among others), Agamben observes the dialectical relation between necessity and exception. Chicago: Uni-versity o f C h icago P ress, 2005 / G io rgio A gam ben , Stato di eccezion e: H om o sacer, II, I. Turin: Bollati Boringhieri, 2003. The decisive point here is that the law–no longer practiced, but studied–is not justice, but only the gate that leads to it. Corresponding to the undecidability of nomos and anomie in the living body of the sovereign is the undecidability between state of exception and public mourning in the city. Because two opposite forces are unleashed within the state of exception–i.e., the force of law (the authority which institutes and makes law) and pure violence (the power which deactivates and deposes law)–alongside the movement that seeks to annex life-itself to law’s empire “there is a countermovement that, working in an inverse direction in law and life, always seeks to loosen what has been artificially  and violently linked” (87). The clearest explication of authority, Agamben argues, is located in the passage35 of the Res Gestae Divi Augusti where “Augustus claims authority as the foundation of his status as princeps36” (81). ). “Pure violence–as human action that neither makes nor preserves law–is not an originary figure of human action that at a certain point is captured and inscribed within the juridical order [...]. Noting how Schmitt’s theory of the exception can only advance itself by installing binary oppositions–i.e., norms of law/norms of the realization of law,  constituent power/constituted power, norm/decision–within he body of law, Agamben defines Schmitt’s state of exception “as the place where the opposition between norm and its realization reaches it greatest intensity. Rather, it first presents Agamben’s theory of the state of exception (Chapters 1, 2 and 4) and then presents his genealogical investigation of it which traces the phenomenon from its origins in the Roman Republic through to the present day (Chapters 3, 5 and 6). Is Charles Mills’ Account of Racial Injustice Essentialist? 3) The attempt to ensnare life, a defining characteristic of the juridico-biopolitical-machine, is bound up with a counter-movement (pure means) the objective of which is to forge the conditions of possibility for a realm of human activity that is totally external to the law. Agamben develops his theses about the state of exception as a juridical void and pure violence and the possibility of a new historical epoch by tracing the contemporary form of the state of exception and to its paradigmatic articulation as iustitium during the Roman Republic and Empire and establishing its relationship to a dialectic between authority (auctoritas) and power (potestas) which converges under the figure of the absolute sovereign  (Chapter 3, 5 and 6). The state of exception is the expansion of the executive power to the point where presidential decrees have the force of law, often invoked during “states of siege” or a “state of war.” Through this expansion of executive power, the separation of powers no longer constrains the executive branch. The sovereign’s inability to decide, excludes the state of exception the from the realm of sovereign jurisdiction where it no longer appears, as Schmitt would have it, “at the threshold that guarantees the articulation between inside and outside, or between anomie and juridical context, by virtue of a law that is in force in its suspension” (57). The precise relation between law and violence within this anomic zone is precisely what is at issue in the debate between Benjamin and Schmitt. If the juridical order provides for its own suspension then the law is not, strictly speaking, suspended although it presents itself as such3. Auctorita is the anomic or “metajuridical” whereas potestas is the normative juridical process. It is a field of juridical tensions in which a minimum of formal being-in-force [vigenza] coincides with a maximum of real application, and vice versa” (36). This suspension of the status of Roman citizen (i.e., ius civis) was potentially devastating for the hostis since it amounted to the radical deprivation of their legal status such that s/he could be stripped of property or life (80). Obviously, fervent nationalism (Nazi Germany) or traumatic national events (September 11) can consolidate a political regime and reduce structural resistance but this situation does not represent the norm. “One of the essential characteristics of the state of exception-the provisional abolition of the distinction among legislative, executive, and judicial powers-here shows its tendency to become a lasting practice of government.” ― Giorgio Agamben, State of Exception 2 likes In State of Exception (2005), Agamben advances three theses. While Schmitt’s sovereign constitutes itself and enacts its own transcendence by deciding on the state of exception–such that the sovereign decision can be understood as the ground that fuses sovereignty and the state of exception–Benjamin’s baroque sovereign15–which has shed all relation to divine transcendence–is faced with the profane task of excluding the exception16 17 and is constitutively incapable of rendering a decision on the exception: “The sovereign, who should decide every time on the exception, is precisely the place where the fracture that divides the body of the law becomes impossible to mend: between Macht and Vermogen, between power and its exercise, a gap opens which no decision is capable of filling” (56). Perspective or way of seeing for Understanding Global Dilemmas agamben state of exception summary how Democratic is the law: what is foundation. 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