On Giorgio Agamben’s State of Exception
In this book, Italian philosopher Giorgio Agamben (1942- ) tackles the concept known as “state of exception” (“suspension of law”). Agamben is primarily known for his first and most influential book, Homo Sacer: Sovereign Power and Bare Life. (1) With State of Exception (2), originally published in 2003 in Italian under the title Stato di eccezione, Agamben continues the narration of a political and juridical problem, a four-part sequel of which this is the first.
A short little book (only 95 pages long), State of Exception takes an in-depth look at legal theory and the philosophy of law in order to investigate the discourses of law, politics, and life. For Agamben, the state of exception is a fictional and mystical construct; at once inside and outside the law, and simultaneously a legal form without true form. According to Agamben, the state of exception is a moment when a sovereign’s law suspends the rule of its juridical constitution. For Agamben, the state of exception is an insurrection of a provisional moment which has, through and throughout history and the deftness of the political, become a permanent fixture of democratic governance.
Agamben questions the grounding and structure of this state of exception, particularly through the questioning of its fictional and mystical foundation. In this observation, Agamben applies an acute awareness of the discourses of philosophy and history and their relationship to the juridical. By taking this approach, Agamben aligns himself nicely to the other thinker of this two-headed monster, Walter Benjamin. Although it is well known that Agamben is an avid follower and reader of Benjamin, this already complex relationship is further problematized by Agamben’s reflections on his other influences: Heidegger, Foucault and Schmitt.
This foundational setting places Agamben as a type of “post-structuralist,” a thinker interested in examining and analyzing how a structure and system works by simultaneously addressing the effects of the structure and system. This post-structuralist tendency is evidenced by his dabbling in the relationship between law and language. However, Agamben is still linked to genealogical and archeological (3) methods (or at least linked to those that take historical frameworks and test them against the grain of history) such as those employed by Foucault. Agamben shows us that he is not only timely and precise, but that he is also an adept and insightful critic of our current “state of siege.”
Part I: Background to Agamben
A professor of aesthetics at the University of Verona, Italy and of philosophy at the College International de Philosophie in Paris and at the University of Macerata in Italy, Agamben has a unique method of blurring and correlating a group seemingly disparate discourses: literary theory, continental philosophy, political thought, religious studies, literature and art. The author of many books and articles, Agamben manages to learn from historical figures (Plato, Spinoza) as well as modern contemporaries (Jean-Luc Nancy, Heidegger, Foucault, Wittgenstein) and expand their application to current moments of political crisis. Although I will not do an elaborate, or superficial, reading of Agamben’s relation to and interpretation of Heidegger, it is interesting to note that Agamben is a contemporary thinker who manages to absorb Heideggerian thought and apply it to historical and immediate political moments and events. (4) This may at first seem innocuous and unimportant, but we must remember Heidegger’s deep insistence on the separation of and between politics and philosophy.
As stated earlier, State of Exception is a continuation of his previous and most lauded book, Homo Sacer. In Homo Sacer, Agamben manages to introduce the reader to the problematics of language (a persistent theme and subject of investigation for Agamben) and its connection to the body, the subject, history, politics, and the juridical sphere(s). As is quite obvious, the Foucauldian thread is quite present in Agamben’s recent work, although certainly not as much in State of Exception. Agamben manages to apply his erudite learning of Foucault to the human subject in order to “recenter” it as the main axis of the reconfigured center of living (city/polis). Through this gesture, Agamben teases out certain ontological spaces that help to explain and complicate the connection of the human body to the political sphere. The preface to this preoccupation is seen in Homo Sacer, where Agamben investigates these subjects: the concentration camp and the refugee to the State of Exception and “pure means and gestures.”(5)
Through the investigation of such subjects, Agamben manages to explore and analyze the political and philosophical construction of public and private spaces as well as the “abject” position of the refugee within the current construct of the nation state. Significantly, it is here that he begins his careful witnessing of the implications behind a suspended juridical order, and ultimately, of the relation of the human to the political. In State of Exception, the question ultimately becomes: what does it mean to act politically?
If one looks for any hint to an answer (one that Agamben does not overtly or pedagogically deliver in State of Exception), one may find it in Agamben’s personal and political acts. Having been scheduled to deliver lectures in two U.S. universities, NYU and UCLA, after September 11th, Agamben cancelled both appearances in protest of the new U.S. policy of fingerprinting and photographing all foreign visitors.(6) Agamben explains:
“A few years ago I wrote that the political model of the west is not the city but the concentration camp, not Athens but Auschwitz. That was, of course, a philosophical, not a historical thesis. This is not about mixing phenomena that must be separated. I only want to remind readers that the tattooing in Auschwitz possibly appeared as ‘normal’ and economic in order to regulate the admission of the deportees to the camp. The bio-political tattooing, which we are forced to undergo today in order to enter the United States is a relay race to what we could tomorrow accept as the normal registration of the identity of the good citizen considering the mechanisms and machinery of the state.”
For Agamben, the political act is intrinsically tied to linguistic schemas and forms of communication that have no external value or referent. I make a point of this because of the complicated nature behind freedom of expression laws within the U.S. The fact that Agamben, an Italian national, was to be exempt from the fingerprinting and photographing process at U.S. customs, and yet he proceeded to align himself politically with those excluded from the list informs his deep commitment to an action that reflects one’s philosophical and political positions. In a sense, this act of presence and absence, of participation and non-participation, becomes the utterance that lingers without a true signified. By simultaneously positioning himself at the center and margin, Agamben recreates a micro State of Exception. By denying the enforceability of a foreign law on his body, Agamben utters his own law–a law outside of any juridical component. In a sense, it predates and prefaces his pending interaction with and synthesizing of Schmitt State of Exception and Benjamin’s Critique of Violence.
Part II: State of Exception
What is a State of Exception? Before we begin to answer this complicated question, a technical clarification is needed. Agamben uses State of Exception to reference a “consistent set of legal phenomena”(7) that has etymological and linguistic connections to the German state of necessity, the Anglo-Saxon martial law and emergency powers, and the differing Italian and French concepts of emergency decrees and states of siege.(8) Agamben notices that these terms have no real neutral grounding, but rather that they embody a fictitious or political quality. He states:
“The State of Exception is not a special kind of law (like the law of war); rather, insofar as it is a suspension of the juridical order itself, it defines law’s threshold or limit concept.”(9)
Using French doctrine dating back to 1811, Agamben further defines the State of Exception as: “[T]he extension of the military authority’s wartime powers into the civil sphere, andâ 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.”(10)
It is precisely how this State of Exception gets conceptualized and implemented that intrigues Agamben. He is interested in how this “new” decree or order gathers the potentiality and force needed to succeed as a type of law. Furthermore, Agamben notices that this State of Exception references a historical moment when the concept now known as “separation of powers” was yet unknown.
The next step is the transformation of this State of Exception from an exception to a rule, guided significantly by an executive sovereign which simultaneously and surreptitiously turns a democratic governance into a permanent state of siege: a state of siege that is not only a form of government but of a rule of law-a rule of law perpetuated by a cloaked force of law. Through this magical overture, the extension of the executive powers into the legislative is quite clear. Citing the Swedish jurist Herbert Tingsten, Agamben states:
“[A]lthough a temporary and controlled use of full powers is theoretically compatible with democratic constitutions, ‘a systematic and regular exercise of the institution (State of Exception) necessarily leads to the “liquidation” of democracy.'”(11) [parenthetical content mine]
For Agamben, the State of Exception, a technique to be used sparingly and rarely, has become, through and in between the two world wars, the rule and the norm.
Citing the U.S. Constitution and it’s ambiguity as to the executive’s right to suspend habeas corpus as well as the executive’s command of the Army and Navy, Agamben locates the U.S. Civil War (precisely via President Abraham Lincoln), as the first U.S. sovereign to problematize, declare, and install the State of Exception.(12)
“Because the sovereign power of the president is essentially grounded in the emergency linked to a state of war, over the course of the twentieth century the metaphor of war becomes an integral part of the presidential political vocabulary whenever decisions considered to be of vital importance are being imposed.”(13) [italics mine]
Applying this observation to post-September 11, Agamben indexes Bush’s claim to be Commander In Chief as exemplary of an executive claim to sovereign powers in emergency situations. By this wave of the wand, “Bush is attempting to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible.”(14)
What force gives the sovereign this seemingly grounded right? Citing a Latin expression, necessitas legem non habet (“necessity has no law”), Agamben references the legal concept of necessity in order to answer this question. He interprets this expression as meaning both “necessity does not recognize any law” and “necessity creates its own law.” By doing this, Agamben notices that the political appearance of a State of Exception necessarily creates the existence of necessity, a necessity that judges and mandates according to a singular and particular case.
Interestingly, it is here that Agamben notices the correlation and connection between law and anarchy as well as law and revolution. Because this state of suspended law comes about and exists due to a much needed necessity of a state, this self-proclaimed right to violate and to manifest and carry out violence necessarily creates an independent and valid moment of insurrection. It is this categorical moment, suspended from any legal or schematic dogma, which allows for the potential of a revolution. Agamben cites the European jurist, Santi Romano, as well as Giorgio Balladore-Pallieri, in order to buttress the link between revolution, law, and the State of Exception.
“Although revolution is by definition ‘antijuridical, even when it is just,’ it can, however, appear this way only ‘with respect to the positive law of the state against which it is directed, but that does not mean thatâ it is not a movement ordered and regulated by its own law. [R]evolution is violence, but it is juridically organized violence.'” (15)
“[T]he recourse to necessity entails a moral or political (or in any case, extrajuridical) evaluation, by which the juridical order is judged and is held to be worthy of preservation or strengthening even at the price of its possible violation. For this reason, the principle of necessity is, in every case, always a revolutionary principle.”(16)
It is precisely this moral and political necessity that Agamben pursues, particulary asking, where does this necessity get its grounding? On what grounds or foundations is this necessity uttered and proclaimed? This lack of grounding is easy to spot, making Agamben’s post-structural bent quite obvious here. For Agamben, this deconstruction of the State of Exception leads to a “lack” which is inherent in law but not necessarily part of the juridical order. A Lacanian lapse? Perhaps. Yet Agamben is quick to note that this fictitious “lacunae” is to be filled by the executive powers just as the lack in law is to be filled by a judge. The ethico/political interpretive act of filling in the blank is now left to an executive sovereign, with only a mystical force of law hiding and pushing behind it.
It is obvious that Agamben takes note of a now famous 1989 lecture by Jacques Derrida at Cardozo School of Law entitled, Force of Law: The Mystical Foundation of Authority.(17) Agamben claims that although this lecture ruptured juridical and philosophical foundations, no one cared to deconstruct “force of law” itself. For Agamben, force of law refers not to law itself, but rather:
“to those decrees (which, as we indeed say, have the force of law) that the executive power can be authorized to issue in some situations, particularly in the State of Exceptionâ Thus, when the Roman sovereign begins to acquire the power to issue acts that tend increasingly to have the value of laws, Roman doctrine says that these acts have the ‘force of law.'”(18) [italics mine]
Thus, for Agamben, the State of Exception has the power to separate the force of law from the law.(19) In other words, the law is in place but has no force and is not applied, and on the other hand those acts that do not have the value of law acquire a force of law. True to his academic and philosophical training, Agamben notices the similarities between this political event and language. The transference from semiotics to semantics is noted by Agamben,(20) but it is perhaps easier to note that what this “force of law” allows for is equal access to it by both law and anarchy. Similarly, and following early semioticians, a word/concept has no originary or logical signified–it simply “floats”. The enunciative character of a word is used to illustrate its lack of content. Thus, “force of law” is an utterance, an enunciation, a decree, a law, that has no law–formal or otherwise. It is simply created and upheld by a social construct and understanding.
Agamben further illustrates the State of Exception by giving us a historical model, the Roman iustitium. The iustitium is a type of “standstill” or “suspension of law” which was granted by the Roman senate under threat of an internal or external force. This power granted its governors and citizenry the right of self-defense.(21)
However, Agamben differentiates between a dictatorship and this State of Exception, describing lucidly how neither Hitler nor Mussolini led totalitarian states. Rather, because of the complex nature of the State of Exception, the self-granting of their own rights and powers (what Schmitt calls “the sovereign”) was an initial provisional governmental measure that did not cease to exist due to reinscribed and perpetuated notions of a permanent state emergency. Thus, for Agamben, both the Fascist and Socialist government allowed the constitution to subsist, with an added “parasitic” structure which was simultaneously allowed to co-exist due to the “necessary” and uttered State of Exception. Furthermore, for Agamben, the iustitium does not create a new magistracy or grant new powers. Rather the State of Exception suspends the laws that previously circumscribed and restricted the actions of the magistrates. In a sense, the State of Exception “is not defined as a fullness of powers, a pleromatic state of law, as in the dictatorial model, but as a kenomatic state, an emptiness and standstill of the law.”(22)
Sadly, it is precisely in theorizing the next phase of this State of Exception that Agamben falters. Although Agamben asks the crucial question: what are the legal consequences of those acts committed during the iustitium, he fails to take an in-depth look at the legal, political, and ethical consequences and repercussions of those acts. Simply stated he delivers the following: “Because [the acts] are neither transgressive, executive, nor legislative, they seem to be situated in an absolute non-place with respect to the law.”(23) Here, Agamben directly references the lack of juridical definition but fails to see the manifestations of a failure of human responsibility.
Due to the recent translated release date of this book there are but two short reviews of it. Of these two, neither has a useful or in depth analysis of Agamben’s text. Both reviews, one by Toni Negri entitled, “The Ripe Fruit of Redemption,”(24) and the other by Jordy Cummings entitled, “Reflections on Tsunamis and the State of Exception,”(25) mirror the narrative and readability difficulty found in Agamben’s text.
In particular, Negri seems more concerned with uttering a senseless diatribe through a pallid and staid Marxist undertone. Negri divides Agamben into a double-headed hydra, claiming that this coexistence is simultaneously poetic and destructive. The first head holds “onto an existential, fated and horrific background, who is forced into a continuous confrontation with the idea of death,” while the other head seized “the biopolitical horizon through an immersion into philological labour and linguistic analysis.”(26) What this means is not quite clear, yet Negri continues to state that Agamben’s first head (the pessimistic one) tends to override the second life-desiring one. It is precisely this connection which Negri first applies to State of Exception yet eventually dispenses as he grants Agamben the positive nature of applying post-modern and post-structural critiques with a new light and with a positive and uncynical force. In the end, it seems Negri is willing to grant Agamben the desire for life at first denied.
Cummings takes a more historical and philosophical critique of Agamben. Here, I agree with Cummings that State of Exception tends to be a book laden with difficult and unnecessarily complicated writing. Whether or not this is partially a product of translation is my question, not Cummings’, but this question still would not obfuscate the ethical interpretive and translational responsibility of a good translator. Although Cummings labels this book obscure and esoteric, he nevertheless follows Negri’s lead in proclaiming Agamben’s absence of postmodern cynicism or “crypto-capitalism.”(27) Apart from this indirect critique, Cummings notes that there’s not much else to say about this book except to mention its importance for activists. That this book should make activists aware of the necessity to shed their illusionary veils and rethink their political goals is an important factor. Cummings seems to imply that this book fills the lacunae between theory and practice: a much needed tool in today’s passive academic and theoretical ivy towers.
Conclusion
State of Exception‘s strongest aspect is in its own conclusion and ending. Agamben’s poetic declarations seem to match his insistence on an uncodable and non-linguistic space that ruptures the bridge between law and violence. If this is true, a more poetic and less pedagogical and historical approach to this text would have applied its theory to praxis.
Although threads of Foucauldian thought are apparent, and the vivid and ostentatious presence of Benjamin and Schmitt abound, one wonders why Agamben winks at Derrida but fails to engage Force of Law in a more sound and frontal manner. Perhaps we’re witnessing the beginning of a disavowal of critical theory, or perhaps Agamben is aware of the impact and power Force of Law had in juridical thought and legal theory after its initial reception, and thus consequently producing its own deathbed.
The negativity and pessimism noticed by Negri is diffused toward the end, but perhaps to a point where it’s “too little too late.” One is left with an understanding that to be a political human being necessitates the creation and utterance of a law, language, and father (auctoritas) that does not discipline, punish, or dictate, but rather stands of itself and for itself: a linguistic field or space that does not hover or suspends above a previous state of law or that seeks to enplace a new and insolvable juridical space. Perhaps it is this illusionary moment that Cummings notices, but one is left with the question of whether poiesis, or art, can still encompass this liberatory practice that Agamben champions.
Agamben’s poetic intuition plays with tactics similar to those of Maurice Blanchot, (28) particularly in terms of how Agamben seems unwilling to fully engage the power and potentas of such elusive narrative structures. To be fair, one could admit that Blanchot did not write after a 9/11 moment, but neither did Agamben write immediately after Vietnam. Perhaps this inability to fully engage a procedure that ruptures the link between law and violence is the initial command–the setting off of the work. In this sense, one is reminded of Benjamin’s own ouvre, particularly his inability to cope with his sense of impending doom which led him to produce the matches for a revolution, and yet simultaneously ignite the fire of his own death. If Agamben is to surpass the remains of Benjamin, he must tease out with more precision the two concepts which he touches upon: anarchy and the carnivalesque. If both of these moments of rupture and subversion produce an uncodeable moment, then Agamben would do well by not only championing them but also in helping a dying and cynical reader to understand how power turns into authority. In effect, an auctoritas without jurisdiction and without discipline: a subversive moment in the process of becoming and yet having been, but understood not as a moment of lament or mourning (as in the Roman iustitium), but rather as a reminder of the still unfulfilled project of transgression and subversion.
Footnotes
- Giorgio Agamben Homo Sacer (Daniel Heller-Roazen, trans., Stanford University Press 1998). Homo Sacer is, according to ancient Roman law, a human being that could not be ritually sacrificed but whom one could kill without being guilty of committing murder.
- Giorgio Agamben, State of Exception (Kevin Attell, trans., University of Chicago Press 2005).
- I use archeological here in the Foucauldian sense.
- The European Graduate School, Bibliography, available at http://www.egs.edu/faculty/agamben.html (April 29, 2005).
- Id.
- Standard Schaefer, Italian Philosopher Giorgio Agamben Protests US Travel Policies, Counterpunch (2003), available at http://www.counterpunch.org/schaeffer01232004.html
- Agamben, Supra note 2, 4
- Id.
- Id. at 4
- Id. at 5
- Id. at 7
- Id. at 20
- Id. at 21
- Id. at 22
- Id. at 29
- Id. at 30, citing Giorgio Balladore-Pallieri, Diritto Costituzionale (Milan: Giuffre 1970).
- For an in depth critique of law and its relations and application of force, see Jacques Derrida, Force of Law: The Mystical Foundation of Authority, In Deconstruction and the Possibility of Justice, Drucilla Cornell, Michel Rosenfeld, David Gray Carlson, eds. (Routledge Press 1992).
- Agamben, supra note 2, 38.
- Id.
- Id. at 39.
- Id. at 41.
- Id. at 48.
- Id. at 51.
- Toni Negri, The Ripe Fruit of Redemption, available at http://www.generation-online.org/t/negriagamben.htm(April 22, 2005).
- Jordy Cummings, Reflections Tsunamis and the State of Exception (Wednesday, December 29, 2004), available at http://www.pressaction.com/news/weblog/full_article/cummings12292004/(April 22, 2005).
- Negri, Supra note 23, 1.
- Cummings, Supra note 24, 2.
- For an interesting comparison, see Maurice Blanchot, The Writing of the Disaster, Ann Smock, trans., (Univ. of Nebraska Press 1986); see also, Maurice Blanchot, Awaiting Oblivion, John Gregg, trans., (Univ. of Nebraska Press 1997).
Copyright 2005 Sergio Munoz-Sarmiento. All Rights Reserved. If you’d like to cite, link, copy or quote any part or all of this essay, email Sergio Munoz-Sarmiento.
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