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Book Review: Giorgio Agamben’s State of Exception

Giorgio Agamben’s State of Exception regards the conceptualization of the ambiguity between sovereignty and exception and the way these two terms have become interrelated within the legislative and executive procedures of contemporary democratic states. On one hand, the democratic state entails a check of power that usually consists of the president, the legislative branch, and the parliament; on the other hand, a state of exception can be declared which grants absolute power over the whole political check of power, entailing a cancelation of legislative procedures such as individual rights, along with a cancellation of protection over the exercise of sovereign power over some or all citizens. As Schmidt formulates at the very beginning of his Political Theology [Politische Theologie], the “sovereign is he who decides on the exception”1. What this concept of decision ultimately amounts to, is the paradoxical nature of the state of exception that appears as a legal form, while being legally undetermined at the same time. This paradox arises due to the decision being no longer guided by law, but by exception. As Agamben puts it, “the state of exception appears as the legal form of what cannot have a legal form”2. It is precisely this idea of indeterminacy of the state of exception that this review will attempt to trace as it is one of the most important features in Agamben’s book.

Before demonstrating this paradoxical nature of the state of exception, it is first important to outline Schmidt’s motivations, being the legal thinker who first came up with the term ‘state of excpetion’. For Schmidt, the essence of sovereignty consists of deciding what is the exception and making the decision appropriate to that decision, where having one without the other makes no sense.3 In doing this, Schmidt paraphrases his favorite passage in Thomas Hobbes’s Leviathan by proclaiming “sovereign power and not truth makes laws”3. The grander motivation for Schmidt consists of escaping what he calls “liberal normativism” within the process of legislation and application of laws, where all law is reduced to normative, formal and abstract procedures. For Schmidt, these bureaucratic procedures that organize relations between individuals are not based on person-to-person relations, but on normalized laws. It is this bureaucratic, mechanized character that compels Schmidt to offer a counteractive argument in his Political Theology, where the sovereign acquires the capacity to carry out any action that would otherwise be obstructed by normative procedures of law. This action also has a miraculous and theologic character; since the action of the sovereign is no longer contingent on written secular laws, but is on the other hand, a “genuine” action carried out by a sovereign, it therefore becomes something that is “analogous to the miracle in theology”4 and that of which, “the natural cause is difficult to imagine”5. This is also one of the reasons why Schmidt is also referred to as the Hobbes of the 20th Century6; it is precisely in the belief of authoritative, “genuine” decision making as a way of escaping the constraining limits of laws and procedures—not only of authoritarian states like the Nazi Germany, in which Schmidt served as a leading jurist—but an inherent part of even today’s democratic legislative and executive procedures.

It is precisely with this idea in mind that Agamben seeks to bring in multiple examples where the state of exception was enacted in modern democracies, one of these consist of several U.S. responses to 9/11, including the construction of Guantanamo Bay, whose legality operates under the U.S Patriot Act passed by the U.S. Senate on October 26, 2001. As Agamben points out, when a detainee is taken into custody based on suspicion of terrorism or a violation of immigration laws, then under the U.S Patriot Act, the alien can be taken into custody during which, indefinite detention is authorized7. Based on the idea of “bare life“ that Agamben develops in one of his previous works Homo Sacer: Sovereign Power and Bare Life (1998), he points out how this legislation of indefinite detention of an “alien” therefore also entails a biopolitcal aspect, where under the state of exception, a human is not only removed from their status as a human, but reduced to a point of being nothing more than “bare life”8. Agamben defines this as a relationship between law the living being, where based on an enacted exception, the sovereign separates a living being from its relation to the sovereign law, making the state of exception more easily applicable and executable. In the case of Guantánamo Bay, through the words of Butler, Agamben points out that “life reaches its maximum state of indeterminacy”.

In the case of Gunatanomo Bay, Agamben attempts to demonstrate how the traditional form through which the state of exception has been enacted, diverges from the way the state of exception has become a normalized procedure within the legislative and executive apparatus of today’s democracies. Previously, enactment of the state of exception in the form of the English martial law or the French état de siège9, was frequently based on a perceived threat or a war, which made it easier to delineate and make distinctions between ‘war’ and ‘peace’, ‘us’ and ‘them’, as well as ‘barbarous’ and ‘civilized’, as well as ‘law’ (Greek: nomos) and ‘nature’ (Greek: phusis) in more ancient forms of settlements like Ancient Greece and the Roman Empire. A similar case arises when one attempts delineate the abuses of the state of exception, such as the case when Hitler claimed the “Decree for the Protection of the People and the State” that suspended the Weimar Constitution concerning personal liberties which paved the road for Nazi Germany to exploit the state of exception for nearly 12 years of its rule10. In extreme cases, the state of exception can be extended in a manner that completely goes beyond its own ideological standards; as Benjamin puts it “no sacrifice is too great for our democracy, least of all the temporary sacrifice of democracy itself”11. It is under this feeling of urgency that justifies the state of exception, where “martial law” can be justified and declared as an unconstitutional intervention—even within a liberal democratic state. In all these cases however, categorical distinctions between ‘war’ and ‘peace’, ‘them’ and ‘us’, etc. were more concrete and direct; in post-9/11 times on the other hand, the delineation between these opposite categories is more difficult to make in regards to both, legislation and exception, which also means that knowing when a country is at peace or at war becomes increasingly difficult to delineate12, amongst other difficulties that arise. Based on this ambiguity, Agamben also traces the previous attempts that thinkers have made in defining and delineating the notion of the state of exception. He categorizes them into two main tendencies, those who think that the state of exception can be defined within the juridicial order and those who think that the state of exception can be defined only “extrajuridicialy”, outside the juridicial order itself (as in the case of Schmidt’s position). Agamben’s claim however offers an alternative viewpoint on this matter; it is that the state of exception is neither external nor internal to the juridicial order, but rather, a point of indetermi nacy. As he puts it, “the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other.”13

Agamben attempts to point out how the state of exception is not just a martial law or any other special kind of “law of war”, but “rather, insofar as it is a suspension of the juridicial order itself, it defines laws’s threshold or limit concept.”14 Agamben refers to this threshold as a “void”, where there is “a force of law without a law“, or formalized as “force-of-law” (with “law” crossed out).15 What Agamben seeks to demonstrate through this concept is to show how legislating the state of exception within the law itself, escapes a strict definition, which is precisely what makes exception an exception; therefore, the law itself embodies a void within itself since it prescribes something that cannot be prescribed. Agamben therefore demonstrates that it is insufficient to equate the state of exception to the concept of dictatorship, whether of a constitutional or unconstitutional kind; rather, it is more appropriate to conceptualize it as something emanating out of a legislative void, where the distinctions between public and private, exception and rule, law and nature become deactivated16. For Agamben, this is the main concern since even today, there is no “theory of exception in public law”—which would consist of conceptualizing precisely this legislative void that enforces law without a law. However, Agamben clarifies that just because a legislative void is enacted under the state of exception, it still makes it different from anarchy and chaos17, while also highlighting that it is insufficient to dismiss the state of exception as a form of dictatorship. Under the state of exception, an order still persists since one of the main purposes for the state of exception is precisely to preserve and maintain an order; the catch however, is that it is not a juridicial kind of order. This idea of force-of-law therefore also gives it a mystical character which Agamben traces back to Roman law and religious ceremonies practiced by the Greeks, and that which Schmidt upholds in Hobbes’s theological conception of sovereignty in the Leviathan.

Agamben’s State of Exception is an indispensable book for conceptualizing sovereignty in modern political philosophy and the way an exception is enacted for the sake of justifying sovereign decision. With the ever increasing number of ways how the distinction between sovereignty and exception becomes blurred, Agamben’s book welcomes a re-consideration of various themes in relation to the refugee crisis, climate politics, war on terrorism, border control, etc. As well as the consideration of what actually defines a state of war, and what defines the state of peace. With an increasing number of pressing issues that the world faces, Agamben offers a way of looking at the phenomena of exception and its process of normalization.

  1. Carl Schmidt, Political Theology: Four Chapters on the Concept of Sovereignty (Chicago: University of Chicago Press, 2005), p. 5. 

  2. Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005), p. 1. 

  3. Schmidt, p. xii 2

  4. Schmidt, p. 36. 

  5. Schmidt, p. xx

  6. Schmidt, p. lii

  7. Agamben, p. 3. 

  8. Agamben, p. 4. 

  9. Agamben, p. 18. 

  10. Agamben, p. 12. 

  11. Agamben, p. 9. 

  12. Agamben, p. 22. 

  13. Agamben, p. 23, (Emphasis my own). 

  14. Agamben, p. 4. 

  15. Agamben, p. 39. 

  16. Agamben, p. 50. 

  17. Agamben, p. 33. 

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