Some notes on Giorgio Agamben's "A Brief History of the State of Exception" excerpt

(Originally written for "Foundations in Media Philosophy" course at EGS)

Agamben, Giorgio. State of Exception. Trans. Kevin Attell. Chicago: University of Chicago Press, 2005.

“A Brief History of the State of Exception” pp. 11-22

This passage appears as an extended note in Chapter 1, “The State of Exception as a Paradigm of Government.” In it, Agamben documents the historical emergence of the juridico-political concept of the “state of exception” in modern history, beginning in the French Revolution, and how this situation has become, paradoxically, the standard operating procedure for Western governments. Again, Agamben looks to France to describe the earliest stirrings of this governmental notion. The constitutional crises that have troubled France since the Revolution are all grounded, he contends, in the paradoxical attempt to legislate the extra-legal “in the case of imminent danger to external or internal security” (12). Initially, the “dominant principle in the French tradition” held that only the power holding legislative power – those who make laws – could also possess the power to suspend those laws. However, during the crisis engendered by the outbreak of WWI, the executive power largely took over the powers of the legislature; in turn, the legislative powers simply delegated their authority to the executive, issuing laws that confirmed ex post facto the executive’s actions. This extension of executive prerogative into legislative spheres resulted, following WWI, to its intervention not only in military but economic “emergencies” as well, and despite debates between political rivals over parliament’s weaking of its own status, the expansion of executive power gradually became accepted by all sides as the norm. This finds its culmination in De Gaulle’s championing of Article 16 in the French constitution, which writes into law the presidential power to suspend constitutional procedures in order to protect the state in cases of extreme danger – in other words, to restore the government by suspending it. Agamben writes that although this article has not been invoked since 1961, “the declaration of the state of exception has gradually been replaced by an unprecedented generalization of the paradigm of security as the normal technique of government” (14, my emphasis).

Moving on to Germany, Agamben addresses Article 48 of the Weimar Constitution, which declared that the president of the Reich could “suspend the fundamental rights” of the state in order “to reestablish security and public order” (14). The article also indicated that the conditions and limitations of this article should be enumerated, but no such task was ever undertaken, leading Carl Schmitt to note that the constitution essentially “legalized a coup d’etat” (15). As in the French tradition, Agamben notes a tendency for political and military crises to be conflated with economic ones, expanding the notion of what constitutes a stability threatening emergency. The situation that this article created, argues Agamben, was that of a “protected democracy,” or a democracy served by a “constitutional dictatorship,” a contradiction in terms that can only lead to totalitarianism, in this case with the rise of Hitler.

After a brief discussion of Switzerland’s own dalliance with such political issues [presented to demonstrate that “the theory of the state of exception is by no means the exclusive legacy of the antidemocratic tradition” (16)], Agamben turns to Italian history. Unlike Germany and France – which had the possibility of exceptional situations written into their governmental documents – the governments of the Italian kingdom had no such explicit constitutional basis but instead issued numerous “emergency executive decrees (the so-called law-decrees)” (16). It was the issuance of such decrees in order to protect public order that “furnished the occasion … [for] Italian jurists to elaborate the thesis … that necessity is the primary source of law” (17). As in France, these executive decrees were always followed by parliamentary ratification, despite not needing such approval. The idea that necessity was the source of legal authority – and so in times when the state was threatened it is “necessary” to suspend normal operations – was part of the Fascist regime’s rise to power. According to Agamben, “the practice of executive legislation by law-decrees has become the rule in Italy” since the era of Fascism. These decrees are not only issued in cases of emergency; the separation of powers has largely disappeared as the executive has taken over most of the legislative role, and the parliament is essentially reduced to ratifying executive law-making.

In England, the term “martial law” is the vague concept that grounds the principle of the state of exception. As in other countries, WWI was the turning point in English legal history, when the government was granted powers to regulate the economy and limit the rights of the citizens; of course, this soon became a regular practice even outside of the situation of war.

Finally, Agamben comes to the US, where he figures the theory of the state of exception as part of the “dialectic between” executive and legislative powers over the right of “sovereign decision” (19). He locates the conflict in various textual ambiguities in the US Constitution: who has authority to suspend habeas corpus (Article 1 – probably Congress); Congress’ power to declare war and support the armed forces; the conflict between this power and the president’s status as “Commander in Chief” of the armed forces. He traces the conflict back to the Civil War and the actions of Abraham Lincoln, who claimed exceptional powers as a means to protect the union during a time of extreme danger – again, supported by claims of public necessity. Agamben states that despite the textual ambiguities, in wartime Congress is largely reduced to a ratifying power. Woodrow Wilson claimed even broader powers than Lincoln, although he usually went through the process of having Congress explicitly delegate to him the powers he wanted. And to return to the issue of the slippage between military and economic situations, he discusses the consistent deployment of the rhetoric of war to discuss economic emergencies – the New Deal, Agamben notes, was accomplished by Roosevelt assuming exceptional powers. Turning finally to the present day, he argues that post-9/11 Bush has been engaged in an operation 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” (22).

A few important points from this section:
• The paradox of the state of exception. The state of exception is, as the name suggests, ostensibly an aberration, a temporary moment in which the norm is excepted, occluded, suspended. The goal of this exception, however, is to return to the norm, a paradoxical situation in which the juridico-political establishment is suspended in order to protect that very establishment. It seems, then, to be an impossible situation: an exercise of political power that should work to dissolve itself. A Foucaultian analysis of the tendency of power toward extension and accretion would seem to be useful here as a way to describe why it is that the exceptional quickly becomes the normal.
• The textual basis of the state of exception. The root of the theoretical problem of the state of exception seems to be, in my opinion, its location at the limits of textual articulation. The US Constitution is perhaps the clearest example of this. Insofar as what is legal must be written or articulated in order for it to be legal, the state of exception requires one to articulate the inarticulable, to write a law that unwrites itself, or a law that unwrites the legal itself. Whether the articulation of the state of exception precedes its enaction (as in Germany and France) or follows the practical application of exceptional measures (as in Italy) this problem of textual authority emerges. The issue then becomes, it seems to me, one of interpretation, and thus of decision. How to determine what is exceptional, what is necessary? When the emergency begins, when it ends?
• This historicity of the state of exception. Agamben only goes back to the late eighteenth century, largely, I think, because of the separation of powers between legislative and executive that really only emerges in modernity; but it would be productive, I think, to explore older historical precedents for the suspension of normal legal and political operations in the case of exceptional situations. One obvious place would be the principle of the dictator in the Roman Republic; another could be the Hebrew Testament and the ancient Israelites demand for a king to protect them from their enemies. The late medieval and early modern periods would also be interesting to study in light of Agamben’s theories: how did the Protestant Reformation(s) serve as “exceptional” situations that resulted in unusual arrogation of authority? Would Henry VIII’s dissolution of England’s ties to the Roman Church qualify as an “exceptional” act? Or is such a situation only possible when there is a clear division of powers that the state of exception then erodes?