Giorgio
Agamben: The State of Emergency
In his Political Theology (1922), Carl Schmitt (1888-1985) established
the essential proximity between the state of emergency and sovereignty.
But although his famous definition of the sovereign as "the one who
can proclaim a state of emergency" has been commented on many times,
we still lack a genuine theory of the state of emergency within public
law. For legal theorists as well as legal historians it seems as if the
problem would be more of a factual question than an authentic legal question.
The very definition of the term is complex, since it is situated at the
limit of law and of politics. According to a widespread conception, the
state of emergency would be situated at an "ambiguous and uncertain
fringe at the intersection of the legal and the political," and would
constitute a "point of disequilibrium between public law and political
fact." The task of defining its limits is nevertheless nothing less
than urgent. And, indeed, if the exceptional measures that characterize
the state of emergency are the result of periods of political crisis,
and if they for this very reason must be understood through the terrain
of politics rather than through the legal or constitutional terrain, they
find themselves in the paradoxical position of legal measures that cannot
be understood from a legal point of view, and the state of emergency presents
itself as the legal form of that which can have no legal form.
And, furthermore, if the sovereign exception is the original set-up through
which law relates to life in order to include it in the very same gesture
that suspends its own exercise, then a theory of the state of emergency
would be the preliminary condition for an understanding of the bond between
the living being and law. To lift the veil that covers this uncertain
terrain between, on the one hand, public law and political fact, and on
the other, legal order and life, is to grasp the significance of this
difference, or presumed difference, between the political and the legal;
and between law and life. Among the elements that render a definition
of the state of emergency thorny, we find the relationship it has to civil
war, insurrection and the right to resist. And, in fact, since civil war
is the opposite of the normal state, it tends to coalesce with the state
of emergency, which becomes the immediate response of the State when faced
with the gravest kind of internal conflict. In this way, the 20th century
has produced a paradoxical phenomenon defined as "legal civil war."
Let us look at the case of Nazi Germany. Just after Hitler came to power
(or, to be more precise, just after he was offered power) he proclaimed,
on February 28, 1933, the Decree for the Protection of the People and
the State. This decree suspends all the articles in the Weimar Constitution
maintaining individual liberties. Since this decree was never revoked,
we can say that the entire Third Reich from a legal point of view was
a twelve year-long state of emergency. And in this sense we can define
modern totalitarianism as the institution, by way of a state of emergency,
of a legal civil war that permits the elimination not only of political
adversaries, but whole categories of the population that resist being
integrated into the political system. Thus the intentional creation of
a permanent state of emergency has become one of the most important measures
of contemporary States, democracies included. And furthermore, it is not
necessary that a state of emergency be declared in the technical sense
of the term.
At least since Napoleon's decree of December 24, 1811, French doctrine
has opposed a "fictitious or political" state of siege in contradistinction
to a military state of siege. In this context, English jurisprudence speaks
of a "fancied emergency"; Nazi legal theorists spoke unconditionally
of an "intentional state of emergency" in order to install the
National Socialist State. During the world wars, the recourse to a state
of emergency was spread to all the belligerent States. Today, in the face
of the continuous progression of something that could be defined as a
"global civil war," the state of emergency tends more and more
to present itself as the dominant paradigm of government in contemporary
politics. Once the state of emergency has become the rule, there is a
danger that this transformation of a provisional and exceptional measure
into a technique of government will entail the loss of the traditional
distinction between different forms of Constitution.
The basic significance of the state of emergency as an original structure
through which law incorporates the living being - and, this, by suspending
itself - has emerged with full clarity in the military order that the
President of the United States issued on November 13, 2001. The issue
was to subject non-citizens suspected of terrorist activities to special
jurisdiction that would include "indefinite detention" and military
tribunals. The U.S. Patriot Act of October 26, 2001, already authorized
the Attorney General to detain every alien suspected of endangering national
security. Nevertheless, within seven days, this alien had to either be
expelled or accused of some crime. What was new in Bush's order was that
it radically eradicated the legal status of these individuals, and produced
entities that could be neither named nor classified by the Law. Those
Talibans captured in Afghanistan are not only excluded from the status
as Prisoners of War defined by the Geneva Conventions, they do not correspond
to any jurisdiction set by American law: neither prisoners nor accused,
they are simply detainees, they are subjected to pure de facto sovereignty/to
a detention that is indefinite not only in its temporal sense, but also
in its nature, since it is outside of the law and of all forms of legal
control. With the detainees at Guantamo Bay, naked life returns to its
most extreme indetermination.
The most rigorous attempt to construct a theory of the state of emergency
can be found in the work of Carl Schmitt. The essentials of his theory
can be found in Dictatorship, as well in Political Theology, published
one year later. Because these two books, published in the early 1920s,
set a paradigm that is not only contemporary, but may in fact find its
true completion only today, it is necessary to give a resume of their
fundamental theses.
The objective of both these books is to inscribe the state of emergency
into a legal context. Schmitt knows perfectly well that the state of emergency,
in as far as it enacts a "suspension of the legal order in its totality,"
seems to "escape every legal consideration"; but for him the
issue is to ensure a relation, no matter of what type, between the state
of emergency and the legal order: "The state of emergency is always
distinguished from anarchy and chaos and, in the legal sense, there is
still order in it, even though it is not a legal order." This articulation
is paradoxical, since, that which should be inscribed within the legal
realm is essentially exterior to it, corresponding to nothing less than
the suspension of the legal order itself. Whatever the nature of the operator
of this inscription of the state of emergency into the legal order, Schmitt
needs to show that the suspension of law still derives from the legal
domain, and not from simple anarchy. In this way, the state of emergency
introduces a zone of anomy into the law, which, according to Schmitt,
renders possible an effective ordering of reality. Now we understand why
the theory of the state of emergency, in Political Theology, can be presented
as a doctrine of sovereignty. The sovereign, who can proclaim a state
of emergency, is thereby ensured of remaining anchored in the legal order.
But precisely because the decision here concerns the annulation of the
norm, and consequently, because the state of emergency represents the
control of a space that is neither external nor internal, "the sovereign
remains exterior to the normally valid legal order, and nevertheless belongs
to it, since he is responsible for decision whether the Constitution can
be suspended in toto." To be outside and yet belong: such is the
topological structure of the state of emergency, and since the being of
the sovereign, who decides over the exception, is logically defined by
this very structure, he may also be characterized by the oxymoron of an
"ecstasy-belonging."
1. In 1990, Jacques Derrida gave a lecture in New York entitled "Force
de loi: le fondement mystique de l'autorite." ["Force of Law:
the Mystical Foundation of Authority"] The lecture, that in fact
consisted of a reading of an essay by Walter Benjamin, "Towards a
Critique of Violence," provoked a big debate among philosophers and
legal theorists. That no one had proposed an analysis of the seemingly
enigmatic formula that gave the lecture its title is not only a sign of
the profound chiasm separating philosophical and legal culture, but of
the decadence of the latter. The syntagm "Force de loi" refers
back to a long tradition of Roman and Medieval Law where it signifies
"efficacy, the capacity to oblige," in a general sense. But
it was only in the modern era, in the context of the French Revolution,
that this expression began designating the supreme value of acts expressed
by an assembly representative of the people. In article 6 from the Constitution
of 1791, "force de loi" designates the indestructible character
of the law, that the sovereign himself can neither abrogate nor modify.
From a technical point of view, it is important to note that in modern
as well as ancient doctrine, the syntagm "force de loi" refers
not to the law itself, but to the decrees which have, as the expression
goes, "force de loi" - decrees that the executive power in certain
cases can be authorized to give, and most notably in the case of a state
of emergency. The concept of "force de loi," as a technical
legal term defines a separation between the efficacy of law and its formal
essence, by which the decrees and measures that are not formally laws
still acquire its force.
This type of confusion between the acts by an executive power and those
by a legislative power is a necessary characteristic of the state of emergency.
(The most extreme case being the Nazi regime, where, as Eichmann constantly
repeated, "the words of the Fuhrer had the force of law.") And
in contemporary democracies, the creation of laws by governmental decrees
that are subsequently ratified by Parliament has become a routine practice.
Today/the Republic is not parliamentary. It is governmental. But from
a technical point of view, what is specific for the state of emergency
is not so much the confusion of powers as it is the isolation of the force
of law from the law itself. The state of emergency defines a regime of
the law within which the norm is valid but cannot be applied (since it
has no force), and where acts that do not have the value of law acquire
the force of law.
This means, ultimately, that the force of law fluctuates as an indeterminate
element that can be claimed both by the authority of the State or by a
revolutionary organization. The state of emergency is an anomic space
in which what is at stake is a force of law without law. Such a force
of law is indeed a mystical element, or rather a fiction by means of which
the law attempts to make anomy a part of itself. But how should we understand
such a mystical element, one by which the law survives its own effacement
and acts as a pure force in the state of emergency?
2. The specific quality of the state of emergency appears clearly if we
examine one measure in Roman Law that may be considered as its true archetype,
the iustitium.
When the Roman Senate was alerted to a situation that seemed to threaten
or compromise the Republic, they pronounced a senatus consultum ultimum,
whereby consuls (or their substitutes, and each citizen) were compelled
to take all possible measures to assure the security of the State. The
senatus consultum implied a decree by which one declared the tumultus,
i.e., a state of emergency caused by internal disorder or an insurrection
whose consequence was the proclamation of a iustutium.
The term iustitium - construed precisely like solstitium-- literally signifies
"to arrest, suspend the ius, the legal order." The Roman grammarians
explained the term in the following way: "When the law marks a point
of arrest, just as the sun in its solstice."
Consequently, the iustitium was not so much a suspension within the framework
of the administration of justice, as a suspension of the law itself. If
we would like to grasp the nature and structure of the state of emergency,
we first must comprehend the paradoxical status of this legal institution
that simply consists in the production of a leg. void, the production
of a space entirely deprived by ius. Consider the iustitium mentioned
by Cicero in one of his Philippic Discourses. Anthony's army is marching
toward Rome, and the consul Cicero addresses the Senate in the following
terms: "I judge it necessary to declare tumultus, to proclaim iustitium
and to prepare for combat." The usual translation of iustitium as
"legal vacancy" here seems quite pointless On the contrary,
faced with a dangerous situation, the issue is to abolish the restrictions
imposed by the laws on action by the magistrate - i.e., essentially the
interdiction against putting a citizen to death without having recourse
to popular judgment.
Faced with this anomic space that violently comes to coalesce wit that
of the City, both ancient and modern writers seem to oscillate between
two contradictory conceptions: either to make iustitium correspond to
the idea of a complete anomy within which all power an all legal structures
are abolished, or to conceive of it as the very plentitude of law where
it coincides with the totality of the real.
Whence the question: what is the nature of the acts committed during iustitium?
From the moment they are carried out in a legal void they ought to be
considered as pure facts with no legal connotation: The question is important,
because we are here contemplating sphere of action that implies above
all the license to kill. Thus historians have asked the question of whether
a magistrate who kills a citizen during a iustitium can be put on trial
for homicide once the iustitium is over. Here we are faced with a type
of action which appears t exceed the traditional legal distinction between
legislation, execution, and transgression. The magistrate who acts during
the iustitium is like an officer during the state of emergency, who neither
carries out the law, nor transgresses it, just as little as he is in the
process of creating a new law. To use a paradoxical expression, we could
say that h is in the process of "un-executing" the law. But
what does it meant un-execute the law? How should we conceive of this
particular class within the entire range of human actions?
Let us now attempt to develop the results of our genealogical investigation
into the iustitium from the perspective of a general theory c the state
of emergency. - The state of emergency is not a dictatorship, but a space
devoid of law. In the Roman Constitution, the dictator was a certain type
c magistrate who received his power from a law voted on by the people
The iustitium, on the contrary, just as the modern state of emergent does
not imply the creation of a new magistrate, only the creation of zone
of anomy in which all legal determinations find themselves inactivated.
In this way, and in spite of the common view, neither Mussolini nor Hitler
can be technically defined as dictators. Hitler, in particular, was Chancellor
of the Reich, legally appointed by the president What characterizes the
Nazi regime, and makes it into such a dangerous model, is that it allowed
the Weimar Constitution to exist, while doubling it with a secondary and
legally non-formalized structure the could not exist alongside the first
without the support of a generalize state of emergency. - For one reason
or another this space devoid of law seems so essential to the legal order
itself that the latter makes every possible attempt to assure a relation
to the former, as if the law in order to guarantee its functioning would
necessarily have to entertain a relation t an anomy.
3. It is precisely in this perspective that we have to read the debate
on the state of emergency which pitted Walter Benjamin and Carl Schmitt
against each other between 1928 and 1940. The starting point of the discussion
is normally located in Benjamin's reading of Political Theology in 1923,
and in the many citations from Schmitt's theory of sovereignty that appeared
in The Origin of German Tragic Drama. Benjamin's acknowledging of Schmitt's
influence on his own thought has always been considered scandalous. Without
going into the details of this demonstration, I think it possible to inverse
the charge of scandal, in suggesting that Schmitt's theory of sovereignty
can be read as the response to Benjamin's critique of violence. What is
the problem Benjamin poses in his "Critique of Violence"? For
him, the question is how to establish the possibility of a future violence
outside of, or beyond the law, a violence which could rupture the dialectic
between the violence that poses and the one that conserves the law. Benjamin
calls this other violence "pure," "divine," or "revolutionary."
That which the law cannot stand, that which it resents as an intolerable
menace, is the existence of a violence that would be exterior to it, and
this not only because its finalities would be incompatible with the purpose
of the legal order, but because of the "simple fact of its exteriority."
Now we understand the sense in which Schmitt's doctrine of sovereignty
can be considered as a response to Benjamin's critique. The state of emergency
is precisely that space in which Schmitt attempts to comprehend and incorporate
into the thesis that there is a pure violence existing outside of the
law. For Schmitt, there is no such thing as pure violence, there is no
violence absolutely exterior to the nomos, because revolutionary violence,
once the state of emergency is established, it always finds itself included
in the law. The state of emergency is thus the means invented by Schmitt
to respond to Benjamin's thesis that there is a pure violence.
The decisive document in the Benjamin/Schmitt dossier is surely the 8th
of the theses on the concept of history: "The tradition of the oppressed
teaches us that the 'state of emergency' in which we live is not the exception
but the rule. We must attain to a conception of history that is in keeping
with this insight. Then we shall clearly realize that it is our task to
bring about a real state of emergency, and this will improve our position
in the struggle against Fascism."
That the state of emergency since then has become the norm does not only
signify that its undecidability has reached a point of culmination, but
also that it is no longer capable of fulfilling the task assigned to it
by Schmitt. According to him, the functioning of the legal order rests
in the last instance on an arrangement, the state of emergency, whose
aim it is to make the norm applicable by a temporary suspension of its
exercise. But if the exception becomes the rule, this arrangement can
no longer function and Schmitt's theory of the state of emergency breaks
down.
In this perspective, the distinction proposed by Benjamin between - an
effective state of emergency and a fictitious state of emergency is essential,
although little noticed. It can be found already in Schmitt, who borrowed
it from French legal doctrine; but this latter, in line with his critique
of the liberal idea of a state governed by law, deems any state of emergency
which professes to be governed by law to be fictitious.
Benjamin reformulates the opposition in order to turn it against Schmitt:
once the possibility of a state of emergency, in which the exception and
the norm are temporally and spatially distinct, has fallen away, what
becomes effective is the state of emergency in which we are living, and
where we can no longer distinguish the rule. In this case, all fiction
of a bond between it and law disappears: there is only a zone of anomy
dominated by pure violence with no legal cover.
Now we are in a position to better understand the debate between Schmitt
and Benjamin. The dispute occurs in that anomic zone which for Schmitt
must maintain its connection to law at all costs, whereas for Benjamin
it has to be twisted free and liberated from this relation. What is at
issue here is the relation between violence and law, i.e., the status
of violence as a cipher for political action. The logomachia over anomy
seems to be equally decisive for Western politics as the "battle
of the giants around being" that has defined Western metaphysics.
To pure being as the ultimate stake of metaphysics, corresponds pure violence
as the ultimate stake of the political; to the onto-theological strategy
that wants pure being within the net of logos, corresponds the strategy
of exception that has to secure the relation between violence and law.
It is as if law and logos would need an anomic or "a-logic"
zone of suspension in order to found their relation to life.
4. The structural proximity between law and anomy, between pure violence
and the state of emergency also has, as is often the case, an inverted
figure. Historians, ethnologists, and folklore specialists are well acquainted
with anomic festivals, like the Roman Saturnalias, the charivari, and
the Medieval carnival, that suspend and invert the legal and social relations
defining normal order. Masters pass over into the service of servants,
men dress up and behave like animals, bad habits and crimes that would
normally be illegal are suddenly authorized. Karl Meuli was the first
to emphasize the connection between these anomic festivals and the situations
of suspended law that characterize certain archaic penal institutions.
Here, as well as in the iustitium, it is possible to kill a man without
going to trial, to destroy his house, and take his belongings. Far from
reproducing a mythological past, the disorder of the carnival and the
tumultuous destruction of the charivari re-actualize a real historical
situation of anomy. The ambiguous connection between law and anomy is
thus brought to light: the state of emergency is transformed into an unrestrained
festival where one displays pure violence in order to enjoy it in full
freedom.
5. The Western political system thus seems to be a double apparatus, founded
in a dialectic between two heterogeneous and, as it were, antithetical
elements; nomos and anomy, legal right and pure violence, the law and
the forms of life whose articulation is to be guaranteed by the state
of emergency. As long as these elements remain separated, their dialectic
works, but when they tend toward a reciprocal indetermination and to a
fusion into a unique power with two sides, when the state of emergency
becomes the rule, the political system transforms into an apparatus of
death. We ask: why does nomos have a constitutive need for anomy? Why
does the politics of the West have to measure up to this interior void?
What, then, is the substance of the political, if it is essentially assigned
to this legal vacuum? As long as we are not able to respond to these questions,
we can no more respond to this other question whose echo traverses all
of Western political history: what does it mean to act politically?
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