Giorgio Agamben - The State of Exception

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GIORGIO AGAMBEN. THE STATE OF EXCEPTION - DER AUSNAHMEZUSTAND.

Giorgio Agamben. The State of Exception - Der Ausnahmezustand. Lecture at European Graduate School. August 2003. Transcription by: Anton Pulvirenti
I would like to give a short presentation about a political and juridical problem that has been present in the past few years: the state of exception. Let me establish some praxis' concerning the terminology. A philosopher whom I greatly admire once said 'terminology is the poetic moment in philosophy.'It doesn't matter if a philosopher clearly and explicitly defines this terminology or not, for example, Plato the marvellous and almost manneristic Greek never defines his most peculiar terminological intention, the 'idea': there is no definition of 'idea' in Plato. On the contrary, Spinoza, in his foremost beautiful Latin, always clearly defines his terms. 'Per attributum intelligo,' 'per modum intelligo' etcetera. But in both cases the research is the same: the scholar could never really understand what an idea is or what a mode is. So, what I want to discuss is that the terminological choice, the choice of the terms is never neutral. Thus I use the term 'state of exception' to make clear a set of political and juridical phenomena which we are trying to define. This term, which has come from the German tradition, is Ausnahmezustand. This term is extraneous to the French or Italian scholars who prefer to speak of ...... [in a language I cannot understand] or in the Anglo-Saxon tradition the corresponding terms are 'martial law' or 'emergency powers.' In this sense the choice of the term 'state of exception' involves taking a position with respect to the very nature of phenomena. For instance the 'state of siege' or 'martial law' expresses of course a relation to war, the state of war which has always been important in the origin of this institution. But they show in the final stage to show themselves to be inaccurate as to the fact and stage of the [illegible]. That's why it is necessary to have a state of siege, political fictitious state of siege etc. The state of exception is not a special juridical order (the law which regulates the state of war,) rather it is a suspension of the whole juridical order itself which marks it for the limits, the threshold of the juridical order. It is for that reason that in public law there is not such a thing as a theory for the 'state of exception.' Although the proximity between the state of exception and sovereignty has been established by the German jurist Carl Schmitt in his 1922 book 'Political Theology,' his obvious definition of the sovereign as the 'one who decides on the state of exception' has been widely debated. Nevertheless the jurist could continue to ignore this phenomena and treat it more as a quaesti facti than as a true juridical problem. According to opinions which are very common, the 'state of exception' constitutes a point of imbalance between public law and politics which, like civil war, insurrection and resistance, is located in an ambiguous zone at the border between the juridical and the political. But precisely for that reason it seems to me that the question of the 9stae of exception's) limits becomes particularly urgent. If it is true that the exceptional measures involved in the state of exception are the result of a political crisis which, as such, cannot really be understood only in the political and juridical constitutional sphere, they are measured from themselves in the paradoxical situation in the juridical measures which cannot be understood within the sphere of law, inside the law. Something has the legal form of that which it cannot have, the legal form. On the other hand, if it is true that the exception is the device, the dispositif by means of which law (which refers to the life which includes the life of itself by means of its own suspension), then a theory of the state of exception is the preliminary condition in order to define the relation which links and at the same time abandons life to the law. So it is a no-man's land between the juridical and public law and the politics which I am trying to explore. It is the only thing that covers this zone. We believe that it is that it is only this case that we would perhaps be able to ask the question (so much repeated in the history of Western politics): what does it mean to act politically? So among the adjuncts which make difficult the definition of the state of exception there is certainly the strict relationship it has with civil war, insurrection and resistance. As civil war is the contrary of the civil state it locates itself in a zone of instability with respect to the state of exception which is the normal response of state authority to the state of war. Thus in the twentieth Century we can witness the paradoxical phenomena of 'legal civil war.' This is the case of the Nazi regime. Immediately after Hitler took (or rather was given power) on the 28th February 1930 he decreed for the protection of the people and the state the articles of the Weimar constitution concerning civil liberties. And he could do this on the basis of article 48 of the Weimar constitution that could authorise the state of exception in the case when the security of the public order was threatened. This decree was never revoked so we could say that the whole Nazi regime was a state of exception that lasted for 12 years. And in this sense totalitarianism can be defined as the restoration, by means of the state of exception, a legal civil war which allows for the physical elimination not only of political enemies but of civil citizens which for one reason or another cannot be integrated into the political system. Thus, since that moment, the creation of a permanent state of exception (even if it is not officially declared) has become one of the essential tasks of the modern state. This includes states who declare themselves to be democracies. In this sense the state of exception' tends today to present itself as the dominant paradigm of government in contemporary politics. It is important to remember that this transformation was only meant to be as a provisional and exceptional measure in a normal technique of government that threatens to transform completely (and has already transformed completely the structures and meanings of traditional distinctions between constitutions. In this sense we could say that the state of exception is a threshold of indetermination between democracy, dictatorship, etcetera. The state of Israel is a good example of how when the state of exception is prolonged in such a situation then all democratic institutions collapse. And it is also what happened in the Weimar Republic. It was not Hitler who created the 'state of exception' it was the type of social democratic government that began mass usage of this institution. I imagine this expression 'world civil war' which i think is very interesting; I also think that it is very interesting that this expression can be found in the same year (1961) in Hannah Arendt's book on Revolution and encouragement book on the material of the partisan; distant and anomic orders aresimply this national policy of war. Another thing I mentioned that is interesting to say here is when I spoke that in the French tradition the state of exception is called '(entente decierge fictif au politique?) (a fictitious or political state of siege) goes back to the French revolution. So we can say that the 'state of exception' appeared for the first time in modernity in the context of the French revolution and the first years of the Napoleonic government. If we could make a date it would be December 24, 1811, when for the first time this 'state of siege' was concieved independently of any military situation. Before the state of siege was meant when the city was invested by the arm of anarchy. Now, for the first time, it was decreed that the state of siege could be decreed, propogated or declared even if there is nothing (to suggest occasioning the implementation of such a decree). That is why the French scholars speak of a 'political' or 'fictitious' state of siege in relation to the military state of siege. The Anglo-Saxon juridical prefession prefers to speak of a 'fancy' emergency (The United States). Other jurists prefer to speak openly of a 'gevald ausnahmezustand;' a will to the state of exception. Another thing to do with the relationship between the 'state of exception' and law and life is the immediately biopolitical meaning of the 'state of exception.' It is an original structure by means of which law includes in itself living through this sort of suspension. I think it appears clearly in the military order declared by the President of the United States on November 24, 2001 which auhtorised the indefinite detention and trial by military commissions (not to be confused with the military courts)of citizens suspected of being involved in terrorist activities. The US Patriot Act was voted in by Congress in May, 2002, it allowed the Attorney General to detain anyone suspected of an activity which would threaten the national security of the United States. But in this case the alien had to be, after 7 days, either expulsed or accused of any violation of the law. So it was new in the military order of President Bush to completely cancel any juridical status of an individual. It thus produced a human being juridically unable (to defend him/ herself). Taliban capture in Afghanistan cannot be protected by the status of a prisoner of war according to the Geneva Convention. They cannot be accused even according to American law. Neither prisoner nor accused but only

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Convention. They cannot be accused even according to American law. Neither prisoner nor accused but only detainees are the object of a purely factual sovereignty completely outside the law. The only possible comparison is the juridical situation of the Jew in the Nazi Lager. They had lost not only citizenship but any juridical identity. Let's now try to analyse this very peculiar juridical situation. The most rigorous attempt to build a theory of sovereignty is, alas unfortunately, the great jurist of the Third Reich Carl Schmitt. He made this in two books: the first, published in 1921 was called 'Dictatorship' and the second one, published the following year, was 'Political Theology.' Let's dwell on these two important books. In these two books Schmitt describes a juridical context (the goal of the theory). Schmitt knows perfectly that the state of exception being 'a suspension of the whole juridical order seems to be external to any possible consideration.' I again quote 'even in its factual consistence and infamous substance, it cannot have the form of law.' Nevertheless (and Schmitt is aware of this) what is eesential for Schmitt is precisely to ensure, at any price, the relationship between the state of exception and juridical law. I quote 'the state of exception is always different between anarchy and chaos and in the juridical sense there is still in it some order.' So paradoxically something external is nevertheless still in relationship to the law. He tries to decribe, to explain a relationship between the state of exception and the law. He makes it in two different ways (i'll analyse very quickly how he does it). In the first book the device operated in the description of an outside in the juridical order (in he book on dictatorship) to the distinction between norm and the appplication of the law. Characteristic is one part of the law distinct to another part of law concerning its application. For this kind of dictatorship which defines the 'commissioner' of the dictatorship which is a dictatorship still meant to work in order to maintain the constitution. There is another dictatorship called a sovereign dictatorship which, on the contrary, tries to restore a new constitutional order. For the commissioner type of dictatorship (the creator of the description) is a distinction of these two aspects of the law. For the sovereign dictatorship is the distinction between constituent power and constituted power (In French the 'pouvoir constituant' and 'pouvoir constituent'. Through this distinction Schmitt is able to describe a state of exception in a juridical context. So he says there is still something of the constitution in the suspension. Let's go to the second book, Political Theology. Although the attention of scholars has been focussed on the second book,it is in the first book that he establishes his framework. In the second book, what allows the description of the juridical order is the distinction between two fundamental aspects or elements of the law: the norm and the decision. One of the most important things in his conception of law is to clearly underline the fact that we are accustomed to only think in terms of 'norm' in relation to law. It is only one part of law; there is also another part which is just as important which is the decision, or which is the huge building of the procedural law in the trial. Without a concrete decision the law is dead. Through this distinction between the law and its distinction we can say that, yes, this aspect of the law which is the norm is standard so there is no norm which is 'force' anymore but we can round the state of exception on this other aspect which is the decision, the concrete application, the concrete realisation of the application of law. We can understand now why the political theology, the theory of the state of exception takes the form of a theory of sovereignty. Precisely because the decision drowns the state of exception and the sovereign becomes the one who can decide on the state of exception. We can both suspend the juridical order but still maintain the relationship between the suspension and the juridical order. The state of exception has a paradoxical status because to represent the inclusion of the space which is outside (or better) is neither inside nor outside. I quote Schmitt 'the sovereign (die auslander) is outside the juridical order and nevertheless belongs to it because he is the one who makes the decision). You can still be outside and still belong (Agamben gives a characteristic back and forward rapid repeated swivel of the wrist to illustrate this relationship). The topological structure of the state of exception is the exclusion and belonging (paradoxical).

Let's try to better understand the theoretical implications of this very interesting particular type of juridical construction. In 1989, Jacques Derrida gave a lecture at the ...School of Law called 'the force of law.' This beautiful conference, which was actually a reading of Walter benjamin's 'Critique of Violence,' was widely debated amongst philosophers and jurists. It is proof of the decay of juridical culture that no jurist tried to analyse the very title of the conference 'force of law'. What is this [term], and where does it come from? It is a genealogical inquiry with a long tradition which goes back to Roman law and defines generally the efficacy of the law. Then only during the French Revolution did this expression come to expain that heirachic government the primacy of the law with respect to the other acts of the state. So in Article 6 of the constitution of 1791 the 'force of law' means the intangibility of the law with respect to the sovereign so the sovereign cannot change the law. This sense of the law means not only the efficacy of the law but this relative relationship (gives a balancing pivotal see-saw movement of the hands to describe) between many state acts. So the law has a special rank. But it is more imporatnt in the technical use of this expression in the juridical tradition both in the ancient order of Roman law and modern law we see that force of law does not at all refer to the law but to those acts decreed as a special measure for example those taken by the government in a special exception who are not technically law but require the force of the law. The most important thing is that the 'force of law' does not refer to the law but to those acts of the executive power, the government especially, who normally should not have the 'force of law' a heirachical (presses downwards repeatedly with his right hand in a motion of downwards force) suddenly in the state of exception a 'crime' [exists?] in the force of law. When the prince begins to acquire the power of propogate acts which more and more progressively become something similar to the law according to the tradition of the people who proclaim the law. When the prince begins to proclaim these acts the jurist for expression said that for this case [I could not understand].... What France liked has the figure of law as the force of law. So this is the beginning going right up to Eichmann in the Jerusalem process: what the Fuhrer said had 'gesesengraft'. In the Nazi regime the words of the Fuhrer had technically 'force of law.' What is important to me is to understand that the force of law does not refer to the law; on the contrary there is no law in this moment but some measure, some decree some [extant/ extenuant?] of the government, some executive government power that requires the force of law. What is important to me is first not only the fact that there is first something that characterises the state of exception, that is to say that in the state of exception the executive power, juridical power, legislative power which are normally distinguished in a democratic constitution coincide, become confused. And extant of the executive power requiring the force of law there is a confusion between the balancing powers. But an even more important theoretical point is that we have the strange figure of a law which is there but has no force and [extraordinary?] measures which are not formally laws but have 'force of law.' Lets redefine what the 'force of law' is (gets up to whiteboard wites 'force of law' and then crosses out the word 'law'). The 'force of law' has no 'force'; when the law is no more in force but according to Schmitt pretends to be still there. Because this strange thing that we have called the state of exception is a force of law, the law as such is no more there, is suspended, but it requires a kind of spectral existence, a kind of spectral mystical existence in the form of this 'force of law' which does not refer to law. What Schmitt and the jurists pretend is that nevertheless in this peculiar form of the 'force of law' law is still there. Don't forget this peculiar energy figure in the state of exception that has no more law but the 'force of law' which is a kind of 'ghost' presence. I'll try now to draw on and analyse and read in this perspective the debate between Walter Benjamin and Carl Schmitt on precisely this subject of the state of exception. What the public call esoteric fired this debate which took place in different forms between 1925 and 1956 (even after Benjamin's death); Carl Schmitt, is not particularly rich and we have a Benjamin quotation from 'Political Theology.' In his book on the origin of the German tragic drama, we have 'historicum vitae' from 1928 which declares that to Schmitt. We have a letter from Benjamin to Schmitt from December 1930 which declares the situation between what [Tuyman?] calls 'this fascist addiction of the public law.' So this relationship always appears to discover how could a Jewish radical thinker refer that the regime to jews that would later compromise [indistinct word] jews. So these are part of many [maintained?] on the part of Schmitt, we have only later the reference to Benjamin in a quotation from Benjamin in Schmitt's book 'Hamlet or Hecuba' (The Intrusion of the Time into the Play) when it was written (16 years after Benjamin's death). In 1988 letters were published in which Schmitt declares that his book on Hobbes (published in 1938)had been concieved by him as an 'answer, response to Benjamin which remained unnoticed.' Now this is the public and esoteric file which tries to establish an esoteric file which is still rich and has still to be explored in its implication; not now and in the

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establish an esoteric file which is still rich and has still to be explored in its implication; not now and in the philological, dictates that succeed in proving that, as a first document in this debate, (swirling motions of the right hand) not Benjamin's reading as I said before in his reading of Schmitt's book 'Political Theology' but, on the contrary, Schmitt's reading of Benjamin's essay 'The Critique of Violence' published in 1921. We dont add any philosophical details, the fact is that this essay was published in a revue in which Schmitt was a regular contributor and regular reader and was the number before the number lichenfreudenschaft' so it was almost sure that he read it. Lets no take now the hypothesis that Schmitt's theory of sovereignty is a response to Benjamin's theory of violence. So let's try to read Schmitt's and Benjamin's theories from this point of view, this perspective. What is Benjamin's goal in this essay on 'The Critique of Violence?' It is, first of all, to establish the possibility of a violence ('gewalt' in German is more rich in violence but let's not worry about that) the gewalt of a violence absolutely (ausland) outside and inside beyond the juridical order. Benjamin was trying [to explain] the existence of a violence completely independent from the juridical order. And as such, this violence can break, can interrupt the bad dialectics between a low-positing violence and a low-conserving [-tive?] violence. From the point of view of law, you only have a violence which makes the law; for instance a revolution then becomes a new constitution etcetera. So rank sets a violence which then posits law and violence which concerns the policeman etcetera. So Benjamin is trying to think the third figure of violence which breaks this directive which cannot be reduced to the juridical context and accords this violence as pure and divine and as far as history is concerned, revolutionary violence. Let's look at the reading which says its just a mere fact of a an existence of a violence outside the law. Not because the end of this violence is in conflict with the juridical acts, no, just the effect of the existence. The point (its a very rich essay if you read it is much more than that but this is main thesis (said with a grin)) as far as violence is concerned. So if you now go back to Schmitt's definition of a theory of sovereignty in the state of exception in 'Political Theology' we see that it can be read precisely as an answer, a response to (Benjamin's) essay. While Benjamin's strategy was to ensure the existence of a violence purely outside the juridical order as I told you, Schmitt's point is that is not such a thing as a violence completely outside the juridical order. The state of exception is precisely a space which will capture and inscribe an Benjamin's idea of a violence operating outside the law in the juridical order. So now we better understand the paradoxical state of a state of exception which is both inside and outside. So according to Schmitt there cannot exist such a thing as 'pure violence' without relationship to the law. So now we can say that the state of exception is the dispositif with which Schmitt responds to Benjamin's affirmation of possible human action completely independent of the law, with no relationship to the law, or completely anomic. People use the terms 'amonie, anomic' which just means 'lowly': is a state of 'low', 'anomie' is a state of lawlessness. And now, just to make a point of the fact that Schmitt is responding to Benjamin, (now we better understand his point that founding the state of exception on the decision, (is based upon) the sovereign decision)it is a countermeasure, a countermovement to Benjamin's critique of a low-posited and low conservative violence corresponds perfectly to the difference between constituent power and constituted power which the other first precedent book according to Schmitt [routed?] the possibility of a state of exception. Precisely in order to respond to this critique now Schmitt takes a third element: the sovereign decision. So let's hope this point is clear. Then perhaps the decisive document in this violence relationship between benjamin and Schmitt is certainly the [aid?] thesis on the concept of sovereignty which certainly Benjamin wrote some months before. On the [aid?] thesis I quote 'the tradition of the oppressed teaches us that the 'state of exception' in which we live has become the rule. We must reach a conception of history which corresonds to this. Then we will have in front of us our task which is to produce the real state of exception. The effect different state of exception. nd this will enforce our position in the struggle against fascism.' The fact that the state of exception becomes the rule [cannot discern words here]. It is not simply the radicalisation of ther present radiological phenomena (of the indivisibility of the state of exception etcetera). Of course we must not forget that we are in 1940 whwen the state of exception was not only the rule but was the fact. They were macing a situation not only in Germany but the whole world...in my book I make a breif history of the state of exception so what we have on the Second World War is that each state declared the state of exception in order to cope with the problem of war in relation between the war and the state of exception. It is also strange that Switzerland which was neutral declared the most severe state of exception in the whole of Europe! An incredible rule of the state of exception...anyone could be imprisoned, deported but there was no reason there was no danger. So it was a fact but was important I think in Benjamin in reading this state as a response to Schmitt many years after his death what Schmitt couldn't in any case accept was the fact that the state of exception and the normal order overlapped, coincided. Because his theory of founding the way the normal order through the state of exception was grounded on the possibility of distinguishing them. But if you can no more distinguish the state of exception and the normal case this possibility collapses. And Schmitt's very sophisticated theory, in order to (swirling motion of hands)keep this strange, paradoxical relationship between inside and outside, between the state of exception and the normal order can't work anymore. If the rule coincides with the exception then the rule devolves itself. So now we can summarise a little this wager, this debate between benjamin and Schmitt. This debate takes place in the same zone of anomie, of lawlessness that on one side that must be kept at any price in relation to the juridical order and on the other hand must be freed on the contrary from this relationship. What is at stake in this zone of anomie is the relationship between violence and the law. That is to say that the state of violence is a cipher of human action. To Schmitt's gesture that tries each time to re-scribe the violence in the juridical context Benjamin responds by showing to violence for pure revolutionary violence in existence outside any juridical order. Interesting for some reason you have to understand the fight for anomie, for lawlessness, seems to be, for Western politics and juridical tradition as decisive for Western metaphysics (the child's struggle about being ....[indistinct]) To pure existence as a physical wager corresponds here pure violence as the ultimate political object. To the ontological strategy that tries to capture being in lawleess language corresponds to a strategy of exception which must establish and conserve the relationship between violence and law. It is as if both law and lawless language are in need of an anomic order (a logic zone of suspension) in order to ground their reference to world and life. Law seems to be able to exist only by grasping anomic lawlessness in the same way that language can only exist by grasping a [known quest?]. In both cases, the conflict concerns (a very peculiar) empty space. On one hand anomie, the juridical void, and on the other pure being being void of any real determination. For the juridical order the empty space is precisely the state of exception as its constitutive action. The relationship between norm and reality involves the suspension of the norm. The same way as in ontology the relationship between language and reality works involves the suspension of the denotative discourse in the form of lie [or life?]. But what remains an essential point for the juridical order is that this zone where in reality where we find only a human action with no relation to the order of the law of pure violence (hovering, uncertain hands) coincides with an extreme and almost spectral figure of law (points to the words 'force of law' on the board) which now divides itself in pure validity without being a force (the content form of law)and a pure being in force without validity: (points to board again)the force of law or state of exception. [A provisional conclusion] We want to grasp this peculiar structure which links together law and anomie. According to this perspective, the Western juridical system shows itself to be a kind of double structure, the form of heterogenous but related elements, normative strictly juridical elements and anomic (not juridical). The normative element seems to need the anomic element in order to be able to apply, to refer to reality so that it has to maintain itself [and so it can advise the relationship you can have[unclear part of recording]]...And the state of exception, is the balance, the dispositif which must preserve and ensure the articulation between these two elements, so that the juridical and political machine can continue to work. This machine is founded on (as we saw) on the fiction that the juridical order (the form of 'force of law, pointing to whiteboard) is still in relationship with the law. That is to say that the power to suspend the law is still an imaginary contiguity with life. As far as these two elements are paradoxically linked together remain in some way related but are conceptually, temporally and subjectively (to make a comparison, in the

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together remain in some way related but are conceptually, temporally and subjectively (to make a comparison, in the Roman Republic).....[cut in footage]. Did you know that in the Sixteenth Century there were many treaties on the Arcana imperi, secret of power. Arcana (arca)comes from 'arch' with is on top of the door (gives rounding motion of hands). So I tried to show what was the arch of law, of power contains in its centre is the state of exception. But this is a void space, where human action with no relation to the law faces a law with no relation to life. Of course this does not mean that this machine with an empty centre is not working; on the contrary I tried precisely to show that the machine didn't cease to work and from Hitler to Bush, from Fascism and Nazism to our time, continued to work. And perhaps the state of exception only now reached its full planetary development. The problem here is not simply to go back, to get to the state of exception's limits are temporary, or reaffirm the primacy of the law in relation to the state of exception is not the point. I do not think that this is anymore possible. From the real state of exception which we live in there is no return (to the state wholly defined by the rule of law). What has become problematic is precisely these two notions: state and law. But if I think that it is possible to try to stop the machine of the state of exception and to exhibit at least its central fiction,this is because there is not substantial articulation between law and life. I tried to show that this articulation is a fiction, is the anti-space of the state of exception. In the tensionalfield of our culture you could say that two post forces are functioning: the first one which posits and ties and the second one which makes it operative and unties [illegible]. The state of exception is the extreme point of this tensional field. Also perhaps when attempting to coincide with the rule threatens to make these two forces (unstable?). To live in a state of exception means that to experience both possibilities and separating and dividing each time these two elements, means to attack, to break , to interrupt and arrest the function of the machine that is leading the world to a permanent state of [illegible]. So to exceed it in some way, the law, in its non-relation to life and to exhibit life in its normal relationship to law means to open up between them a space for a human action which we used once, a long time ago, to make politics. Politics has undergone perhaps a lasting eclipse because it has contaminated itself with law. Thus it has concieved itself either as 'pouvoir constituant' (constituted power.. so that it is to say low-posited violence) or, even worse, it has reduced itself to an endless exhibition with law. On the contrary, the truly political is only that action that is able to cut the relationship between violence and law.

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