(One of the classic Constitutional chestnuts is the story of how Ambedkar believed that Article 356, which provides for emergency powers, would never need to be used, and would remain a dead letter – and how then next sixty years have demonstrated how wrong he was. Given the now-ubiquitous presence of Article 356 in national life, along with Article 370 and the use of the AFSPA throughout the country, emergency powers have now become woven into the fabric of constitutional law. In this context, it becomes important to engage with works like Giorgio Agamben’s 2005 monograph, “State of Exception”, which is amongst the most famous theoretical treatments of emergency powers in constitutional states.)
In State of Exception, Giorgio Agamben is concerned with theorising the use of emergency powers (the “state of exception”) by modern constitutional states. Ever since the German jurist, Carl Schmitt, argued that the sovereign was best understood as the entity who had the power to decide upon the state of exception, the concept has been treated as a political fact, incapable of juridical analysis. As the Stanford Encyclopedia summarises the argument:
“No legal norm can govern an extreme case of emergency or an absolute state of exception. In a completely abnormal situation, the continued application of the law through the normal administrative and judiciary channels is going to lead to haphazard and unpredictable results, while preventing effective action to end the emergency… if the applicability of material legal norms presupposes a condition of normality… a polity must be entitled to decide whether to suspend the application of its law on the ground that the situation is abnormal.”
Therefore, as Agamben understands it, the justification for the state of exception is that it calls for ” a suspension of the order that is in force in order to guarantee its existence… it is as if the juridical order contained an essential fracture between the position of the norm and its application, which, in extreme situations, can be filled only by means of the state of exception, that is, by creating a zone in which application is suspended, but the law, as such, remains in force.” He characterises this as a distinction between “norm” and “decision”; in situations of so-called normalcy, it is norms that govern action – norms that are characterised by being general, prospective, abstract – leaving very little space for individualised, particularistic decisions, based on particular facts (see this article by John Rawls for an analytical account of this distinction). In the state of exception, that relationship is reversed, and it is the decision that becomes the primary form of political action.
This reversal characterises another staple feature of the state of exception, that Agamben calls the “force of
law“. The standard understanding of “law” (as we know, for instance, from Fuller) is precisely that it operates through norms – with its defining characteristics being its generality, formal equality, and so on. In the state of exception, however, Agamben points out that “decrees, provisions, and measures that are not formally laws nevertheless acquire their “force”. From a technical standpoint, the contribution of the state of exception is the separation of “force of law” from “law”. It defines a state of law in which, on the one hand, the norm is in force but is not applied (has no force), and on the other, acts that do not have the value of law acquire its force…” This distinction, and the understanding of suspended norms during states of exception, also leads to important insight that the acts undertaken during that period have no legal character – that is, they are neither transgressive (illegal) nor illegal, but exist sui generis, in a sense, beyond the reach of law (consider, for example, the immunity provisions in the AFSPA).
When we consider these features of the state of exception, and how at odds they are with our common understanding of how law ought to work, it becomes clear that – as the word “exception” would seem to signify – their only justification (if any) can lie in their temporariness and specificity. As Agamben argues, however, through the course of the twentieth century, the state of exception has become – paradoxically – the norm. He takes as his point of departure, Walter Benjamin’s famous observation in his Theses on History:
“The tradition of the oppressed teaches us that the ‘state of exception’ in which we live. We must attain to a concept of history that accords with this fact. Then we will clearly see that it is our task to bring about the real state of exception, and this will improve our position in the struggle against fascism…”
While Benjamin was writing in the context of Nazi Germany (a twelve-year state of exception), Agamben locates the change at the beginning of the 20th century (although the concept of the state of exception itself, he traces from the Roman practice of iustitum, through the French Revolutionary Constitution, and its Napoleonic successors), where the idea of necessity, which was originally understood to be a “single exception that justified not obeying existing law… in the first half of the twentieth century… came to be seen as the ultimate source of law.” That is to say, if the overall justification of law is necessity, then the state of exception is no longer a state of “exception”, but one instantiation of what necessity requires in certain circumstances.
Agamben charts the evolution of the states of exception through the twentieth century, demonstrating how – instead of being single, isolated instances – the came to gradually become the norm, used for such diverse purposes as wartime preparations, fighting the great depression, and suppressing worker-movements. “The voluntary creation of a permanent state of emergency has become one of the essential practices of contemporary states, including so-called democratic ones…” This is primarily marked by a breakdown in the classical separation of powers: going back to the force-of-
law idea, the executive is conferred with greater and greater powers to issue decrees having the force of law (again, recall the warrantless-arrest provisions of the AFSPA). For Agamben, this reached its apotheosis in the Bush regime’s infamous Guantanamo Bay executive order, which has since resulted in “radically eras[ing] the legal status of the individual, thus producing a legally unnameable and unclassifiable being. Neither prisoners, nor accused, but simply detainees, they are the objects of a pure, de facto rule… what Judith Butler calls bare life reaching its maximum indeterminacy.”
The book, then, has two rather bleak morals: states of exception occupy a continuum along the history of post-Enlightenment constitutional democracies, starting with revolutionary France; and that in modern times, they have become the default rather than the exception, although – crucially – they have taken a new form: “declaration of states of exception has gradually been replaced by an unprecedented generalization of the paradigm of security as the normal technique of government.” In other words, the national security state – with its ubiquitous surveillance mechanisms and police procedures, is the 21st-century instantiation of a now-permanent state of exception (along with its more extreme and brutal forms that remain territorially and spatially limited, such as the permanence of the emergency-measure AFSPA in numerous parts of India – again, making the emergency the default rather than the exception). But perhaps, as Benjamin believed, a clear understanding of this fact is the essential first step in working against it.
Malcolm Bull with an infinitely more erudite review in the LRB, here.
A brief piece, considering how the Schmitt-Benjamin debate plays out in Agamben’s work, here.