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May 14, 2006
The state of exception refers to exceptional events or conditions that fall outside the scope of the law. It is an objective condition of necessity that requires the enactment of emergency powers justified in the name of an emergency.
Lucius Cornelius Sulla: a classic example of the state of exception in Rome: Sulla as dictator of Rome. Sulla stands for a 'Commissarial Dictatorship', or a temporary dictatorship intended to defend the constitution by provisionally suspending it, rather than a 'Sovereign Dictatorship', an (unconstitutional) constituent power intended to bring about something new.
The national security state's surveillance activities (based on the ability to process 10 billion bits of telecommunications data per second) in the US is the modern example: President Bush wiretapping US citizens phone calls and e-mails despite the 4th Amendment. Bush is trying to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible. The authoritarian right and the conservative legal scholars have invented the doctrine of the unitary executive to expand presidential power in the state of exception called the decades-long war on terrorism.
Another example is the Guantanamo Bay detention camp, an exemplary site of contemporary exceptionalism, we can easily demonstrate the application of Agamben's ideas. Guantanamo cannot be explained in the regular terms of law or criminal investigation. As is well-known the intended purpose of the camp's location outside the regular territory of the United States is precisely to separate the entire process from normal American legal procedures and constitutional rights.
Agamben explores the terms 'exception', 'state of exception', and 'exceptionalism' through critically engaging with the sovereign declaration and enactment of 'exceptions' to legal, political, social, historical and cultural norms, typically in the name of security imperatives or a 'state of emergency'. He argues that sovereign power does not just affirm its power over life by asserting its dominion, but also by withdrawing its protection, abandoning bare life to a realm of violence and lawlessness. As Agamben explains in Homo Sacer:
He who has been banned is not, in fact, simply set outside the law and made indifferent to it but rather abandoned by it, that is, exposed and threatened on the threshold in which life and law, outside and inside, become indistinguishable. It is literally impossible to say whether the one who has been banned is outside or inside the juridical order. (pp. 28-29)
The state of exception is, therefore, a way of understanding both the operation of canonical Western political discourses/structures at their limits and a positioning of contemporary political practices at those limits. The term 'state of exception' is taken to mean a limit condition.
In his State of Exception Agamben provides an extended note on the empirical history of the state of exception. He illustrates that the exceptional delegation of powers from parliament to the executive - establishing executive rule by decree - became normal practice for all European democracies during, and then frequently after, the First World War. He argues that the passage to executive rule is underway to varying degrees in all the Western democracies, with parliaments becoming only secondary actors in the legislative process. He highlights the tendency in all of the Western democracies where by the declaration of the state of exception has gradually been replaced by an unprecedented generalization of the paradigm of security as the normal technique of government. (p.14)
What Agamben is saying here is that the current norm was once exceptional, and that it developed from an earlier state of exception or is coming to resemble what was once considered exceptional. It may also be that today's exception will become tomorrow's norm.
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The problem with using Sulla as an example though is that we simply don't know enough about him. I have taken as my cue the Sulla presented by Colleen McCullogh's 'Masters of Rome' series of novels. Her description of the man is pure guesswork. We do know enough of his policy though to figure out what he was about.
The thing is, very little actual documentary evidence from Republican Rome survived, and nearly all of what did is from the era after Sulla.
The thing about the Republic though is that they had the Dictatorship, which recognised that emergencies happened, and provided a legal framework to accomodate it. Under a Dictatorship all bets were off, and the Dictator traditionally could not be held to account for his actions. However the Dictatorship was only a six month office. Sulla was a contrary indivudual and made himself Dictator for life, and then resigned and retired.
Also, Sulla had a very different political agenda to Bush. Sulla was quite reactionary, the Dictatorial Optimate in counterpoint to Ceasar's Populares faction, althoug Sulla was reacting to the Consulates of Gaius Marius. The whole thrust of Sulla's policy was to restore the dominance of the old Patrician Aristocracy; Bush, despite his Ivy League degree, is very much a Homo Novo.
Agamben seems to have written a complex explanation of the theory of Precendents. Another Roman concept!