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April 7, 2005
Agamben says that the most rigorous attempt to construct a theory of the state of exception was made by Carl Schmitt in his two books Dictatorship and Political Theology. Agamben says that:
The specific contribution of Schmitt's theory is precisely to make...an articulation between state of exception and juridiucal order possible. It is a paradoxical articulation, for what must be inscribed within the law is something that is exterior to it, that is, nothing less than the suspension of the juridical order itself...."
In Dictatorship Schmitt presents the state of exception through the figure of dictatorship. He distinquishes between a commissarial dictatorship, which has the aim of defending or restoring the existing constitution; and sovereign dictatorship, which aims at creating a state of affairs in which it becomes possible to impose a new constitution. An example of the former is classical republican Rome; whilst an example of the latter is communism.
In Political Theology Schmitt explores the state of exception through two fundamental elements of law: norm and decision. The norm is supsended or annuled to reveal the decision. The state of exception is presented as a theory of sovereignty, since the sovereign is he who can decide on the state of exception and anchor it in the juridical order.
Agamben then loosens Schmitt's tight fit between dictatorship and state of exception. He argues thus:
He says that the state of exception is the opening of a space in which norm and application reveal their separation; between the norm and its application there no internal nexus that allows us to derive on from the other. This marks a threshold in which there is a force of law without the law.
Thus in classical republican Rome the Senate identifies a state of emergency, decides upon a state of exception, suspends the administration of justice and the public law, and decrees that the consuls (or those who act in their stead) are to take whatever measures they considered necessary to ensure the survival of the state.
Agamben argues that this situation indicates that state of excepion cannot be interpreted through the paradigm of dictatorship. What we have is unlimited power being invested from the suspension of the laws that restrict the consuls/magistrates actions. Similarly with Hitler and Mussolini. Hitler was a legitimate Chancellor of the Reich, whilst Mussolini was a legally invested head of government. But characterizes both their regimes is the suspension of the existing constitution and created beside the legal constitution a second structure anchored in the state of exception.
So the state of exception is not a dictatorship as understood by Schmitt. It is:
# a space devoid of law in which all legal determinations are deactivated;
#This space devoid of law seems to be so essential to the juridical order that the state of exception as the suspension of law is grounded in the juridical order;
#The crucial problem connected to suspension is that the acts committed during the suspension seem to be situated in a non-place with respect to the law;
#the idea of the force of law that is separate from the law is a response to the undecidability of this non-place. The force of the law is a fiction through which law attempts to encompass its own absence and to appropriate the state of exception;
#What is at issue in the function of this fiction of 'the force of law' is the definiton of what Schmitt calls 'the political.'
The essential task of a theory of exception is not to clarify whether it has a juridical relation but to define the meaning, place and modes of its relation to the law.
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