Brett Neilson reviews State of Exception by Giorgio Agamben, trans. Kevin Attell. Chicago, 104 pp.

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

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