The state of emergency
This text is an extract from a lecture given at the Centre Roland-Barthes (Universite Paris VII, Denis-Diderot) in 2002.
In his Political Theology (1922),
Carl Schmitt (1888-1985) established the essential proximity between
the state of emergency and sovereignty. But although his famous definition
of the sovereign as "the one who can proclaim a state of emergency"
has been commented on many times, we still lack a genuine theory of
the state of emergency within public law. For legal theorists as well
as legal historians it seems as if the problem would be more of a factual
question than an authentic legal question.
The very definition of the term
is complex, since it is situated at the limit of law and of politics.
According to a widespread conception, the state of emergency would be
situated at an "ambiguous and uncertain fringe at the intersection
of the legal and the political," and would constitute a "point
of disequilibrium between public law and political fact." The task
of defining its limits is nevertheless nothing less than urgent. And,
indeed, if the exceptional measures that characterize the state of emergency
are the result of periods of political crisis, and if they for this
very reason must be understood through the terrain of politics rather
than through the legal or constitutional terrain, they find themselves
in the paradoxical position of legal measures that cannot be understood
from a legal point of view, and the state of emergency presents itself
as the legal form of that which can have no legal form.
And, furthermore, if the sovereign
exception is the original set-up through which law relates to life in
order to include it in the very same gesture that suspends its own exercise,
then a theory of the state of emergency would be the preliminary condition
for an understanding of the bond between the living being and law. To
lift the veil that covers this uncertain terrain between, on the one
hand, public law and political fact, and on the other, legal order and
life, is to grasp the significance of this difference, or presumed difference,
between the political and the legal; and between law and life.
Among the elements that render a definition of the state of emergency thorny, we find the relationship it has to civil war, insurrection and the right to resist. And, in fact, since civil war is the opposite of the normal state, it tends to coalesce with the state of emergency, which becomes the immediate response of the State when faced with the gravest kind of internal conflict. In this way, the 20th century has produced a paradoxical phenomenon defined as "legal civil war."
Let us look at the case of Nazi
Germany. Just after Hitler came to power (or, to be more precise, just
after he was offered power) he proclaimed, on February 28, 1933, the
Decree for the Protection of the People and the State. This decree suspends
all the articles in the Weimar Constitution maintaining individual liberties.
Since this decree was never revoked, we can say that the entire Third
Reich from a legal point of view was a twelve year-long state of emergency.
And in this sense we can define modern totalitarianism as the institution,
by way of a state of emergency, of a legal civil war that permits the
elimination not only of political adversaries, but whole categories
of the population that resist being integrated into the political system.
Thus the intentional creation of a permanent state of emergency has
become one of the most important measures of contemporary States, democracies
included. And furthermore, it is not necessary that a state of emergency
be declared in the technical sense of the term.
At least since Napoleon's decree
of December 24, 1811, French doctrine has opposed a "fictitious
or political" state of siege in contradistinction to a military
state of siege. In this context, English jurisprudence speaks of a "fancied
emergency"; Nazi legal theorists spoke unconditionally of an "intentional
state of emergency" in order to install the National Socialist
State. During the world wars, the recourse to a state of emergency was
spread to all the belligerent States. Today, in the face of the continuous
progression of something that could be defined as a "global civil
war," the state of emergency tends more and more to present itself
as the dominant paradigm of government in contemporary politics. Once
the state of emergency has become the rule, there is a danger that this
transformation of a provisional and exceptional measure into a technique
of government will entail the loss of the traditional distinction between
different forms of Constitution.
The basic significance of the state
of emergency as an original structure through which law incorporates
the living being - and, this, by suspending itself - has emerged with
full clarity in the military order that the President of the United
States issued on November 13, 2001. The issue was to subject non-citizens
suspected of terrorist activities to special jurisdiction that would
include "indefinite detention" and military tribunals. The
U.S. Patriot Act of October 26, 2001, already authorized the Attorney
General to detain every alien suspected of endangering national security.
Nevertheless, within seven days, this alien had to either be expelled
or accused of some crime. What was new in Bush's order was that it radically
eradicated the legal status of these individuals, and produced entities
that could be neither named nor classified by the Law. Those Talibans
captured in Afghanistan are not only excluded from the status as Prisoners
of War defined by the Geneva Conventions, they do not correspond to
any jurisdiction set by American law: neither prisoners nor accused,
they are simply detainees, they are subjected to pure de facto sovereignty/to
a detention that is indefinite not only in its temporal sense, but also
in its nature, since it is outside of the law and of all forms of legal
control. With the detainees at Guantamo Bay, naked life returns to its
most extreme indetermination.
The most rigorous attempt to construct
a theory of the state of emergency can be found in the work of Carl
Schmitt. The essentials of his theory can be found in Dictatorship,
as well in Political Theology, published one year later. Because these
two books, published in the early 1920s, set a paradigm that is not
only contemporary, but may in fact find its true completion only today,
it is necessary to give a resume of their fundamental theses.
The objective of both these books
is to inscribe the state of emergency into a legal context. Schmitt
knows perfectly well that the state of emergency, in as far as it enacts
a "suspension of the legal order in its totality," seems to
"escape every legal consideration"; but for him the issue
is to ensure a relation, no matter of 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 though it is not a legal order." This
articulation is paradoxical, since, that which should be inscribed within
the legal realm is essentially exterior to it, corresponding to nothing
less than the suspension of the legal order itself. Whatever the nature
of the operator of this inscription of the state of emergency into the
legal order, Schmitt needs to show that the suspension of law still
derives from the legal domain, and not from simple anarchy. In this
way, the state of emergency introduces a zone of anomy into the law,
which, according to Schmitt, renders possible an effective ordering
of reality. Now we understand why the theory of the state of emergency,
in Political Theology, can be presented as a doctrine of sovereignty.
The sovereign, who can proclaim a state of emergency, is thereby ensured
of remaining anchored in the legal order. But precisely because the
decision here concerns the annulation 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, since
he is responsible for decision whether the Constitution can be suspended
in toto." To be outside and yet belong: such is the topological
structure of the state of emergency, and since the being of the sovereign,
who decides over the exception, is logically defined by this very structure,
he may also be characterized by the oxymoron of an "ecstasy-belonging."
1. In 1990, Jacques Derrida gave
a lecture in New York entitled "Force de loi: le fondement mystique
de l'autorite." ["Force of Law: the Mystical Foundation of
Authority"] The lecture, that in fact consisted of a reading of
an essay by Walter Benjamin, "Towards a Critique of Violence,"
provoked a big debate among philosophers and legal theorists. That no
one had proposed an analysis of the seemingly enigmatic formula that
gave the lecture its title is not only a sign of the profound chiasm
separating philosophical and legal culture, but of the decadence of
the latter. The syntagm "Force de loi" refers back to a long
tradition of Roman and Medieval Law where it signifies "efficacy,
the capacity to oblige," in a general sense. But it was only in
the modern era, in the context of the French Revolution, that this expression
began designating the supreme value of acts expressed by an assembly
representative of the people. In article 6 from the Constitution of
1791, "force de loi" designates the indestructible character
of the law, that the sovereign himself can neither abrogate nor modify.
From a technical point of view,
it is important to note that in modern as well as ancient doctrine,
the syntagm "force de loi" refers not to the law itself, but
to the decrees which have, as the expression goes, "force de loi"
- decrees that the executive power in certain cases can be authorized
to give, and most notably in the case of a state of emergency. The concept
of "force de loi," as a technical legal term defines a separation
between the efficacy of law and its formal essence, by which the decrees
and measures that are not formally laws still acquire its force.
This type of confusion between
the acts by an executive power and those by a legislative power is a
necessary characteristic of the state of emergency. (The most extreme
case being the Nazi regime, where, as Eichmann constantly repeated,
"the words of the Fuhrer had the force of law.") And in contemporary
democracies, the creation of laws by governmental decrees that are subsequently
ratified by Parliament has become a routine practice. Today/the Republic
is not parliamentary. It is governmental. But from a technical point
of view, what is specific for the state of emergency is not so much
the confusion of powers as it is the isolation of the force of law from
the law itself. The state of emergency defines a regime of the law within
which the norm is valid but cannot be applied (since it has no force),
and where acts that do not have the value of law acquire the force of
This means, ultimately, that the
force of law fluctuates as an indeterminate element that can be claimed
both by the authority of the State or by a revolutionary organization.
The state of emergency is an anomic space in which what is at stake
is a force of law without law. Such a force of law is indeed a mystical
element, or rather a fiction by means of which the law attempts to make
anomy a part of itself. But how should we understand such a mystical
element, one by which the law survives its own effacement and acts as
a pure force in the state of emergency?
2. The specific quality of the
state of emergency appears clearly if we examine one measure in Roman
Law that may be considered as its true archetype, the iustitium.
When the Roman Senate was alerted
to a situation that seemed to threaten or compromise the Republic, they
pronounced a senatus consultum ultimum, whereby consuls (or their substitutes,
and each citizen) were compelled to take all possible measures to assure
the security of the State. The senatus consultum implied a decree by
which one declared the tumultus, i.e., a state of emergency caused by
internal disorder or an insurrection whose consequence was the proclamation
of a iustutium.
The term iustitium - construed
precisely like solstitium-- literally signifies "to arrest, suspend
the ius, the legal order." The Roman grammarians explained the
term in the following way: "When the law marks a point of arrest,
just as the sun in its solstice."
Consequently, the iustitium was
not so much a suspension within the framework of the administration
of justice, as a suspension of the law itself. If we would like to grasp
the nature and structure of the state of emergency, we first must comprehend
the paradoxical status of this legal institution that simply consists
in the production of a leg. void, the production of a space entirely
deprived by ius. Consider the iustitium mentioned by Cicero in one of
his Philippic Discourses. Anthony's army is marching toward Rome, and
the consul Cicero addresses the Senate in the following terms: "I
judge it necessary to declare tumultus, to proclaim iustitium and to
prepare for combat." The usual translation of iustitium as "legal
vacancy" here seems quite pointless On the contrary, faced with
a dangerous situation, the issue is to abolish the restrictions imposed
by the laws on action by the magistrate - i.e., essentially the interdiction
against putting a citizen to death without having recourse to popular
Faced with this anomic space that
violently comes to coalesce wit that of the City, both ancient and modern
writers seem to oscillate between two contradictory conceptions: either
to make iustitium correspond to the idea of a complete anomy within
which all power an all legal structures are abolished, or to conceive
of it as the very plentitude of law where it coincides with the totality
of the real.
Whence the question: what is the
nature of the acts committed during iustitium? From the moment they
are carried out in a legal void they ought to be considered as pure
facts with no legal connotation: The question is important, because
we are here contemplating sphere of action that implies above all the
license to kill. Thus historians have asked the question of whether
a magistrate who kills a citizen during a iustitium can be put on trial
for homicide once the iustitium is over. Here we are faced with a type
of action which appears t exceed the traditional legal distinction between
legislation, execution, and transgression. The magistrate who acts during
the iustitium is like an officer during the state of emergency, who
neither carries out the law, nor transgresses it, just as little as
he is in the process of creating a new law. To use a paradoxical expression,
we could say that h is in the process of "un-executing" the
law. But what does it meant un-execute the law? How should we conceive
of this particular class within the entire range of human actions?
Let us now attempt to develop the
results of our genealogical investigation into the iustitium from the
perspective of a general theory c the state of emergency.
- The state of emergency is not a dictatorship, but a space devoid of law. In the Roman Constitution, the dictator was a certain type c magistrate who received his power from a law voted on by the people The iustitium, on the contrary, just as the modern state of emergent does not imply the creation of a new magistrate, only the creation of zone of anomy in which all legal determinations find themselves inactivated. In this way, and in spite of the common view, neither Mussolini nor Hitler can be technically defined as dictators. Hitler, in particular, was Chancellor of the Reich, legally appointed by the president What characterizes the Nazi regime, and makes it into such a dangerous model, is that it allowed the Weimar Constitution to exist, while doubling it with a secondary and legally non-formalized structure the could not exist alongside the first without the support of a generalize state of emergency.
- For one reason or another this space devoid of law seems so essential to the legal order itself that the latter makes every possible attempt to assure a relation to the former, as if the law in order to guarantee its functioning would necessarily have to entertain a relation t an anomy.
3. It is precisely in this perspective
that we have to read the debate on the state of emergency which pitted
Walter Benjamin and Carl Schmitt against each other between 1928 and
1940. The starting point of the discussion is normally located in Benjamin's
reading of Political Theology in 1923, and in the many citations from
Schmitt's theory of sovereignty that appeared in The Origin of German
Tragic Drama. Benjamin's acknowledging of Schmitt's influence on his
own thought has always been considered scandalous. Without going into
the details of this demonstration, I think it possible to inverse the
charge of scandal, in suggesting that Schmitt's theory of sovereignty
can be read as the response to Benjamin's critique of violence. What
is the problem Benjamin poses in his "Critique of Violence"?
For him, the question is how to establish the possibility of a future
violence outside of, or beyond the law, a violence which could rupture
the dialectic between the violence that poses and the one that conserves
the law. Benjamin calls this other violence "pure," "divine,"
or "revolutionary." That which the law cannot stand, that
which it resents as an intolerable menace, is the existence of a violence
that would be exterior to it, and this not only because its finalities
would be incompatible with the purpose of the legal order, but because
of the "simple fact of its exteriority."
Now we understand the sense in
which Schmitt's doctrine of sovereignty can be considered as a response
to Benjamin's critique. The state of emergency is precisely that space
in which Schmitt attempts to comprehend and incorporate into the thesis
that there is a pure violence existing outside of the law. For Schmitt,
there is no such thing as pure violence, there is no violence absolutely
exterior to the nomos, because revolutionary violence, once the state
of emergency is established, it always finds itself included in the
law. The state of emergency is thus the means invented by Schmitt to
respond to Benjamin's thesis that there is a pure violence.
The decisive document in the Benjamin/Schmitt
dossier is surely the 8th of the theses on the concept of history: "The
tradition of the oppressed teaches us that the 'state of emergency'
in which we live is not the exception but the rule. We must attain to
a conception of history that is in keeping with this insight. Then we
shall clearly realize that it is our task to bring about a real state
of emergency, and this will improve our position in the struggle against
That the state of emergency since
then has become the norm does not only signify that its undecidability
has reached a point of culmination, but also that it is no longer capable
of fulfilling the task assigned to it by Schmitt. According to him,
the functioning of the legal order rests in the last instance on an
arrangement, the state of emergency, whose aim it is to make the norm
applicable by a temporary suspension of its exercise. But if the exception
becomes the rule, this arrangement can no longer function and Schmitt's
theory of the state of emergency breaks down.
In this perspective, the distinction
proposed by Benjamin between - an effective state of emergency and a
fictitious state of emergency is essential, although little noticed.
It can be found already in Schmitt, who borrowed it from French legal
doctrine; but this latter, in line with his critique of the liberal
idea of a state governed by law, deems any state of emergency which
professes to be governed by law to be fictitious.
Benjamin reformulates the opposition
in order to turn it against Schmitt: once the possibility of a state
of emergency, in which the exception and the norm are temporally and
spatially distinct, has fallen away, what becomes effective is the state
of emergency in which we are living, and where we can no longer distinguish
the rule. In this case, all fiction of a bond between it and law disappears:
there is only a zone of anomy dominated by pure violence with no legal
Now we are in a position to better
understand the debate between Schmitt and Benjamin. The dispute occurs
in that anomic zone which for Schmitt must maintain its connection to
law at all costs, whereas for Benjamin it has to be twisted free and
liberated from this relation. What is at issue here is the relation
between violence and law, i.e., the status of violence as a cipher for
political action. The logomachia over anomy seems to be equally decisive
for Western politics as the "battle of the giants around being"
that has defined Western metaphysics. To pure being as the ultimate
stake of metaphysics, corresponds pure violence as the ultimate stake
of the political; to the onto-theological strategy that wants pure being
within the net of logos, corresponds the strategy of exception that
has to secure the relation between violence and law. It is as if law
and logos would need an anomic or "a-logic" zone of suspension
in order to found their relation to life.
4. The structural proximity between
law and anomy, between pure violence and the state of emergency also
has, as is often the case, an inverted figure. Historians, ethnologists,
and folklore specialists are well acquainted with anomic festivals,
like the Roman Saturnalias, the charivari, and the Medieval carnival,
that suspend and invert the legal and social relations defining normal
order. Masters pass over into the service of servants, men dress up
and behave like animals, bad habits and crimes that would normally be
illegal are suddenly authorized. Karl Meuli was the first to emphasize
the connection between these anomic festivals and the situations of
suspended law that characterize certain archaic penal institutions.
Here, as well as in the iustitium, it is possible to kill a man without
going to trial, to destroy his house, and take his belongings. Far from
reproducing a mythological past, the disorder of the carnival and the
tumultuous destruction of the charivari re-actualize a real historical
situation of anomy. The ambiguous connection between law and anomy is
thus brought to light: the state of emergency is transformed into an
unrestrained festival where one displays pure violence in order to enjoy
it in full freedom.
5. The Western political system thus seems to be a double apparatus, founded in a dialectic between two heterogeneous and, as it were, antithetical elements; nomos and anomy, legal right and pure violence, the law and the forms of life whose articulation is to be guaranteed by the state of emergency. As long as these elements remain separated, their dialectic works, but when they tend toward a reciprocal indetermination and to a fusion into a unique power with two sides, when the state of emergency becomes the rule, the political system transforms into an apparatus of death. We ask: why does nomos have a constitutive need for anomy? Why does the politics of the West have to measure up to this interior void? What, then, is the substance of the political, if it is essentially assigned to this legal vacuum? As long as we are not able to respond to these questions, we can no more respond to this other question whose echo traverses all of Western political history: what does it mean to act politically?