::fibreculture:: stato di eccezione

[Brett Neilson]

The following is the piece on Agamben's Stato di eccezione that I promised 
to Ned, David, and others. It's intended not as a review so much as a 
report for friends who are interested in engaging with this work without 
waiting for it to be translated ...

Giorgio Agamben. Stato di eccezione. Torino: Bollati Borighieri. 2003

Brett Neilson
University of Western Sydney

At a time when Australians face trial before U.S. military tribunals, 
asylum seekers languish in camps like Baxter and Nauru, and new government 
legislation allows the detention of Australian citizens themselves, the 
prose of Giorgio Agamben burns with relevance for those who live on the 
southern continent. Stato di eccezione is Agamben's latest offering, an 
extension and deepening of Homo sacer (1995)--of which it announces itself 
as Volume II, Part 1. Growing more directly from this earlier text than 
Quel che resta di Auschwitz (1998), Volume III of Homo sacer, the book is 
at once more historically grounded and more politically audacious. Agamben 
steps away from the pessimistic analytic of 'bare life' to recover some of 
the redemptive energy that inhabits La communità che viene (1990), his 
best-known work among English language readers. Perhaps it is the force 
with which emergency powers have gripped the world in the past two years 
that lends Stato di eccezione a political intensity that remains wholly 
current even as it interrogates Roman republican law and plummets the 
ontological depths of early 20th-century thinkers like Carl Schmitt and 
Walter Benjamin.

In the opening pages of Stato di eccezione, Agamben announces that 'before 
the unstoppable progression of what has been identified as a "global civil 
war," the state of exception tends ever more to present itself as the 
dominant paradigm of government in contemporary politics.' The reference to 
'global civil war' signals an immediate concern with the current 
transformations of world order, even as the text notes that this term first 
appears in 1961 (both in the work of Hannah Arendt and Carl Schmitt). 
Agamben identifies the 'military order' issued by George W. Bush on 13 
November 2001 (subjecting non-citizens suspected of terrorist activities to 
indefinite detention and military tribunals) as the most recent in a line 
of emergency measures that open a no-man's-land between the political and 
the juridical.

The French état de siège (which finds its origins in the eighteenth century 
Revolution), article 48 of the Weimar constitution (mobilized over 250 
times before 1933), the Italian decreto di urgenza (which became the normal 
means of governmental legislation following World War II), the emergency 
powers of the British parliament (introduced with the Defence of the Realm 
Act in 1914), and the capacity of the U.S. president to issue 'executive 
orders' (which allowed Lincoln to suspend to writ of habeas corpus in 1861, 
Wilson to assume emergency powers in 1917-18, and F.D. Roosevelt to declare 
a national emergency six hours after assuming power in 1933)--all of these 
attest the inextricable link between the state of exception and the normal 
functioning of the bourgeois democratic state. Far from being a hallmark of 
totalitarian rule, the state of exception 'presents itself as a zone of 
indetermination between democracy and absolutism.' Thus even those who 
argue that emergency powers are necessary to safeguard democracy, such as 
Clinton. L. Rossiter--author of Constitutional Dictatorship: Crisis 
Government in the Modern Democracies (1948, must recognize the mutual 
implication of the emergency state and absolutist government, noting that 
'the constitutional use of emergency powers is becoming the rule and not 
the exception.'

As in Homo sacer, Agamben's argument finds its point of departure in Carl 
Schmitt's Political Theology. Schmitt describes the state of exception as a 
kind of legal vacuum, a 'suspension of the legal order in its totality.' 
But for him, the issue is to ensure a relation, no matter 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 through it is not a legal order.' The 
state of emergency introduces a zone of anomy into the law, and thus it can 
be presented as a doctrine of sovereignty. The sovereign, who proclaims the 
state of emergency, remains anchored in the legal order. But precisely 
because this decision concerns a nullification 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.' In Stato di eccezione, Agamben works to sever this link between 
sovereign power and legal order, revealing an 'essential fiction' that 
underlies the push to 'global civil war.' The book thus points to a 
'countermovement' that separates life from law--a force that 'melts that 
which has been artificially and violently linked.' There are three main 
moments to this countermovement.

1. First is Agamben's interpretation of the term 'force-of-law,' which, as 
he notes, supplies the title for a 1990 lecture by Jacques Derrida. For 
Agamben, it is astounding that, despite the debate between philosophers and 
legal theorists occasioned by this lecture, there has been little analysis 
of the 'enigmatic formula' that provides its title. Following article six 
of the French constitution of 1791, he finds the term 'force-of-law' to 
designate the indestructible character of the law--the supreme value of 
acts expressed by an assembly representative of the people (which the 
sovereign can neither abrogate nor modify). In the technical sense, 
'force-of-law' refers not to the law itself, but to decrees that have, as 
the expression goes, 'force-of-law'--decrees that executive power can be 
authorized to give, and most notably in the state of exception. The term 
identifies a gap between the efficacy of the law and its formal essence, 
and this means that acts that do not have the value of law can acquire the 
'force-of-law.' For Agamben, this separation between law and 'force-of-law' 
characterizes the state of exception. In the state of exception, the 
'force-of-law' can exist without law. There is a radical separation between 
potential and act as well as a mystical element or fiction that seeks to 
eliminate this disconnection. Far from leading back to the legal order, as 
Schmitt contends, the state of exception exhibits the 'impossible 
conjuncture' between norm and reality, or between the law and its 
application. It is a limit zone where logic and practice intermingle and a 
pure violence without logos activates an enunciation with no real referent.

2. To deepen his case against Schmitt, Agamben offers an analysis of the 
Roman republican convention of the iustitium--an ancient precedent for the 
state of exception. When the Roman senate was alerted to a situation that 
seemed to threaten or compromise the republic, they pronounced a senatus 
consultum ultimum. This involved the declaration of a tumultus or a state 
of emergency whose consequence was the proclamation of the iustitium. The 
iustitium involved not a suspension of the framework of justice but a 
suspension of the law itself. Following Adolphe Nissen's Das Iustitium 
(1877), Agamben distinguishes the legal void of the iustitium from the 
paradigm of dictatorship. Under the Roman constitution, a dictator was a 
special type of magistrate selected by the consuls, whose wide powers were 
conferred by means of a lex curiata that defined their scope. In the 
iustitium, by contrast, there was no creation of a new magistrate. The 
powers enjoyed by the magistrates under the iustitium resulted not from the 
conferment of a dictatorial imperium but from the suspension of laws that 
limited their actions. Agamben points out that the same is true for modern 
emergency powers. It is a mistake to confuse the state of exception with 
dictatorship (a fullness of powers or pleromatic state of law)--and this 
is, indeed, the limit of Schmitt's analysis. In spite of the common view, 
neither Hitler nor Mussolini was a dictator. Hitler, in particular, was 
Chancellor of the Reich, legally appointed by the president. What was so 
dangerous about the Nazi regime is that it allowed the Weimar constitution 
to remain valid, while doubling it with a secondary and legally 
non-formalized structure that could only exist alongside the first by 
virtue of a generalized state of emergency. For one reason or another, the 
existence of such spaces devoid of law seems so essential to the legal 
order that the latter must make every possible effort to assure a relation 
to the former, as if the law in order to guarantee its functioning must 
necessarily entertain a relation to anomy.

3. In this perspective, Agamben reads the debate on the state of emergency 
that pitted Carl Schmitt against Walter Benjamin from 1928 to 1940. 
Schmitt's influence on Benjamin has always appeared scandalous, but Agamben 
attempts to reverse this scandal, suggesting that Schmitt's theory of 
sovereignty must be read as response to Benjamin's 'Critique of Violence.' 
In this 1921 essay, Benjamin posits the existence of a 'pure' or 
'revolutionary' violence--that is, violence outside the law, a violence 
that ruptures the dialectic between the violence that institutes the law 
(constituent power) and the violence that upholds the law (constituted 
power). Agamben argues that the state of emergency is the means invented by 
Schmitt to respond to this postulation of a pure violence. For Schmitt, 
there can be no violence absolutely exterior to the nomos, because 
revolutionary violence, once the state of emergency is established, always 
finds itself to be included in the law. Benjamin's definitive response to 
Schmitt is the famous passage in 'Theses on the Philosophy of History' 
where he surmises that 'the "state of emergency" in which we live is not 
the exception but the rule.' But before revisiting those important lines, 
Agamben detours through Benjamin's The Origin of German Tragic Drama, which 
contrasts Schmitt's theory of sovereign decision with the notion of 
sovereign indecision. Far from deciding on the state of exception (and 
thereby including it in the legal order), the sovereign in the German 
tragic drama aims to avoid such emergency measures (to keep them separate 
from the legal order): 'Whereas the modern concept of sovereignty amounts 
to a supreme executive power on the part of the prince, the baroque concept 
emerges from a discussion of the state of emergency, and makes it the most 
important function of the prince to avert this.' Confronted with the 
decision to proclaim an emergency, the sovereign reveals that 'he is almost 
incapable of making a decision.' The fracture between sovereign power and 
the capacity to act thus becomes impassable. For Benjamin, the state of 
exception leads not to the restoration of legal order but to a generalized 
catastrophe. And in this catastrophe, the transcendental claims of 
sovereign power are vanquished: 'However highly he is enthroned over 
subject and state, ... [the sovereign] is confined to the world of 
creation; he is lord of the creatures, but he remains a creature.'

This figure of generalized catastrophe under a sky void of transcendental 
authority haunts Agamben's description of a 'global civil war' 
characterized by 'governmental violence that ignores international law 
externally and produces a permanent state of exception internally, while 
all the time pretending to uphold the law.' Far from facilitating a return 
to the 'state of law,' the current global emergency throws the very 
concepts of the 'state' and 'law' into question. Today the state of 
exception has reached its 'maximum planetary unfolding' and manifests 
itself as an unrestrained festival in which pure violence is exercised in 
full freedom. Not accidentally does the term iustitium, after the fall of 
the Roman republic, come to designate the period of public mourning 
following the sovereign's death. According to classicist Karl Meuli, anomic 
festivals (such as the Roman saturnalia, the charivari, and the medieval 
carnival) display a connection with the situations of suspended law that 
characterize certain archaic penal institutions. They thus reveal the 
anomic drive that lies at the very heart of the nomos. As Agamben explains, 
'in the exhibition of the mournful character of every festival and the 
festive character of every mourning, law and anomy show their distance and, 
at the same time, their secret solidarity.' This double movement adds a new 
level of disingenuousness to one of the most feted comments of recent 
Australian public life--Immigration Minister Phillip Ruddock's description 
of the former Lager at Woomera: 'It's not a holiday camp, nor should it be 
seen as one.'

For Agamben, the Western political system is founded in the double movement 
between two heterogeneous and antithetical elements: nomos and anomy, legal 
right and pure violence, the law and the forms of life whose articulation 
is guaranteed by the state of emergency. In opposition to the movement that 
seeks to maintain the relation between these elements, he poses a 
countermovement that seeks to break the fictional link between violence and 
the law. He thus understands contemporary Western culture as a 'field of 
tensions' in which two opposing forces clash--one that institutes and 
imposes, the other that deactivates and deposes. There can be no hope of 
flattening these forces onto indifference, or containing them in the 
synthesizing logic of dialectic. But equally it is only possible to 
distinguish them by virtue of their articulation in the biopolitical 
machine--'bare life is a product of the machine and not something that 
pre-exists it.' The task of a radical politics is to break the link between 
violence and the law, an action that implies not the return to an original 
state but the accession to a new condition. Stato di eccezione is Agamben's 
most sustained blueprint of this politics-to-come, a document that charts 
an ethical and conceptual path beyond the state of exception by providing 
tools to break into and move through it.


Dr. Brett Neilson
Centre for Cultural Research
University of Western Sydney
PENRITH SOUTH DC NSW 1797
AUSTRALIA
Tel: +61-2-4736-0387
Fax: +61-2-4736-0224
http://www.uws.edu.au/ccr

Free Trade in the Bermuda Triangle ... and Other Tales of Counterglobalization
http://www.upress.umn.edu/Books/N/neilson_free.html