The Omnibus Homo Sacer

by Giorgio Agamben

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  HOMO SACER II, 1

  STATE

  OF EXCEPTION

  TRANSLATED BY KEVIN ATTELL

  Contents

  Translator’s Note

  165

  1. The State of Exception as a Paradigm of Government

  167

  2. Force-of-Law

  193

  3. Iustitium

  201

  4. Gigantomachy Concerning a Void

  211

  5. Feast, Mourning, Anomie

  222

  6. Auctoritas and Potestas

  230

  Bibliography

  243

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  Translator’s Note

  Wherever possible, I have included references to published English translations

  of Agamben’s French, German, and Italian sources in the references list. How-

  ever, in order to maintain consistency in terminology throughout the text, and to

  better reflect Agamben’s own translations of these sources, the published English

  versions have frequently been modified. Where an English edition is listed in the

  bibliography, the first page number in the text citation refers to the original, and

  the second to the English edition (e.g., [Benjamin 1942, 697/257]). Where no

  English edition is listed, the translation is mine.

  I would like to give my deepest thanks to Courtney Booker, David Copen-

  hafer, Samuel Gilbert, Sirietta Simoncini, and to Giorgio Agamben for their gen-

  erous help in preparing this translation.

  165

  Quare siletis juristae in munere vestro?

  [Why are you jurists silent about that which concerns you?]

  1

  The State of Exception

  as a Paradigm of Government

  1.1. The essential contiguity between the state of exception and sover-

  eignty was established by Carl Schmitt in his book Politische Theologie

  (1922). Although his famous definition of the sovereign as “he who decides on

  the state of exception” has been widely commented on and discussed, there is

  still no theory of the state of exception in public law, and jurists and theorists

  of public law seem to regard the problem more as a quaestio facti than as a gen-

  uine juridical problem. Not only is such a theory deemed illegitimate by those

  authors who (following the ancient maxim according to which necessitas legem

  non habet [necessity has no law]) affirm that the state of necessity, on which

  the exception is founded, cannot have a juridical form, but it is difficult even

  to arrive at a definition of the term given its position at the limit between poli-

  tics and law. Indeed, according to a widely held opinion, the state of exception

  constitutes a “point of imbalance between public law and political fact” (Saint-

  Bonnet 2001, 28) that is situated—like civil war, insurrection, and resistance—in

  an “ambiguous, uncertain, borderline fringe, at the intersection of the legal and

  the political” (Fontana 1999, 16). The question of borders becomes all the more

  urgent: if exceptional measures are the result of periods of political crisis and, as

  such, must be understood on political and not juridico-constitutional grounds

  (De Martino 1973, 320), then they find themselves in the paradoxical position

  of being juridical measures that cannot be understood in legal terms, and the

  state of exception appears as the legal form of what cannot have legal form. On

  the other hand, if the law employs the exception—that is the suspension of law

  itself—as its original means of referring to and encompassing life, then a theory

  of the state of exception is the preliminary condition for any definition of the

  relation that binds and, at the same time, abandons the living being to law.

  It is this no-man’s-land between public law and political fact, and between

  the juridical order and life, that the present study seeks to investigate. Only if the

  veil covering this ambiguous zone is lifted will we be able to approach an under-

  standing of the stakes involved in the difference—or the supposed difference—

  167

  168

  HOMO SACER II, 1

  between the political and the juridical, and between law and the living being. And

  perhaps only then will it be possible to answer the question that never ceases to

  reverberate in the history of Western politics: what does it mean to act politically?

  1.2. One of the elements that make the state of exception so difficult to

  define is certainly its close relationship to civil war, insurrection, and resistance.

  Because civil war is the opposite of normal conditions, it lies in a zone of unde-

  cidability with respect to the state of exception, which is state power’s immediate

  response to the most extreme internal conflicts. Thus, over the course of the

  twentieth century, we
have been able to witness a paradoxical phenomenon that

  has been effectively defined as a “legal civil war” (Schnur 1983). Let us take the

  case of the Nazi State. No sooner did Hitler take power (or, as we should perhaps

  more accurately say, no sooner was power given to him) than, on February 28,

  he proclaimed the Decree for the Protection of the People and the State, which

  suspended the articles of the Weimar Constitution concerning personal liberties.

  The decree was never repealed, so that from a juridical standpoint the entire

  Third Reich can be considered a state of exception that lasted twelve years. In

  this sense, modern totalitarianism can be defined as the establishment, by means

  of the state of exception, of a legal civil war that allows for the physical elimina-

  tion not only of political adversaries but of entire categories of citizens who for

  some reason cannot be integrated into the political system. Since then, the vol-

  untary creation of a permanent state of emergency (though perhaps not declared

  in the technical sense) has become one of the essential practices of contemporary

  states, including so-called democratic ones.

  Faced with the unstoppable progression of what has been called a “global

  civil war,” the state of exception tends increasingly to appear as the dominant

  paradigm of government in contemporary politics. This transformation of a pro-

  visional and exceptional measure into a technique of government threatens rad-

  ically to alter—in fact, has already palpably altered—the structure and meaning

  of the traditional distinction between constitutional forms. Indeed, from this

  perspective, the state of exception appears as a threshold of indeterminacy be-

  tween democracy and absolutism.

  א The expression “global civil war” appears in the same year (1963) in both Hannah

  Arendt’s On Revolution and Carl Schmitt’s Theory of the Partisan. However, as we will see, the distinction between a “real state of exception” ( état de siège effectif ) and a “fictitious state of exception” ( état de siège fictif ) goes back to French public law theory and was already clearly articulated in Theodor Reinach’s book De l’état de siège. Étude historique et juridique (1885), which is at the origins of the Schmittian and Benjaminian opposition

  STATE OF EXCEPTION

  169

  between a real and a fictitious state of exception. Anglo-Saxon jurisprudence prefers to

  speak here of “fancied emergency.” For their part, Nazi jurists spoke openly of a gewollte Ausnahmezustand, a “willed state of exception,” “for the sake of establishing the National Socialist State” (Werner Spohr, quoted in Drobische and Wieland 1993, 28).

  1.3. The immediately biopolitical significance of the state of exception as

  the original structure in which law encompasses living beings by means of its

  own suspension emerges clearly in the “military order” issued by the president

  of the United States on November 13, 2001, which authorized the “indefinite

  detention” and trial by “military commissions” (not to be confused with the

  military tribunals provided for by the law of war) of noncitizens suspected of

  involvement in terrorist activities.

  The USA Patriot Act issued by the U.S. Senate on October 26, 2001, already

  allowed the attorney general to “take into custody” any alien suspected of ac-

  tivities that endangered “the national security of the United States,” but within

  seven days the alien had to be either released or charged with the violation of

  immigration laws or some other criminal offense. What is new about President

  Bush’s order is that it radically erases any legal status of the individual, thus pro-

  ducing a legally unnamable and unclassifiable being. Not only do the Taliban

  captured in Afghanistan not enjoy the status of POWs as defined by the Geneva

  Convention, they do not even have the status of persons charged with a crime

  according to American laws. Neither prisoners nor persons accused, but simply

  “detainees,” they are the object of a pure de facto rule, of a detention that is

  indefinite not only in the temporal sense but in its very nature as well, since it

  is entirely removed from the law and from judicial oversight. The only thing to

  which it could possibly be compared is the legal situation of the Jews in the Nazi

  Lager [camps], who, along with their citizenship, had lost every legal identity,

  but at least retained their identity as Jews. As Judith Butler has effectively shown,

  in the detainee at Guantánamo, bare life reaches its maximum indeterminacy.

  1.4. The uncertainty of the concept is exactly matched by terminological un-

  certainty. The present study will use the syntagma state of exception as the technical term for the consistent set of legal phenomena that it seeks to define. This

  term, which is common in German theory ( Ausnahmezustand, but also Notstand,

  “state of necessity”), is foreign to Italian and French theory, which prefer to speak

  of emergency decrees and state of siege (political or fictitious, état de siège fictif ). In Anglo-Saxon theory, the terms martial law and emergency powers prevail.

  If, as has been suggested, terminology is the properly poetic moment of

  thought, then terminological choices can never be neutral. In this sense, the

  170

  HOMO SACER II, 1

  choice of the term state of exception implies a position taken on both the nature of the phenomenon that we seek to investigate and the logic most suitable for

  understanding it. Though the notions of state of siege and martial law express a connection with the state of war that has been historically decisive and is present to this day, they nevertheless prove to be inadequate to define the proper

  structure of the phenomenon, and they must therefore be qualified as political

  or fictitious, terms that are themselves misleading in some ways. The state of exception is not a special kind of law (like the law of war); rather, insofar as it is a

  suspension of the juridical order itself, it defines law’s threshold or limit concept.

  א The history of the term fictitious or political state of siege is instructive in this regard.

  It goes back to the French doctrine that—in reference to Napoleon’s decree of Decem-

  ber 24, 1811—provided for the possibility of a state of siege that the emperor could declare whether or not a city was actually under attack or directly threatened by enemy forces,

  “whenever circumstances require giving more forces and more power to the military

  police, without it being necessary to put the place in a state of siege” (Reinach 1885, 109).

  The institution of the state of siege has its origin in the French Constituent Assembly’s

  decree of July 8, 1791, which distinguished among état de paix, in which military authority and civil authority each acts in its own sphere; état de guerre, in which civil authority must act in concert with military authority; and état de siège, in which “all the functions entrusted to the civil authority for maintaining order and internal policing pass to the

  military commander, who exercises them under his exclusive responsibility” (ibid.). The

  decree referred only to military strongholds and ports, but with the law of 19 Fructidor

  Year 5, the Directory assimilated municipalities in the interior with the strongholds and, with the law of 18 Fructidor of the same year, granted itself the right to put a city in a state of siege. The subsequent history of the state of siege is the history of its gradual emancipation from the wa
rtime situation to which it was originally bound in order to

  be used as an extraordinary police measure to cope with internal sedition and disorder,

  thus changing from a real, or military, state of siege to a fictitious, or political one. In any case, it is important not to forget that the modern state of exception is a creation of the democratic-revolutionary tradition and not the absolutist one.

  The idea of a suspension of the constitution was introduced for the first time in the

  constitution of 22 Frimaire Year 8, Article 92 of which reads, “In the case of armed revolt or disturbances that would threaten the security of the State, the law can, in the places

  and for the time that it determines, suspend the rule of the constitution. In such cases,

  this suspension can be provisionally declared by a decree of the government if the leg-

  islative body is in recess, provided that this body be convened as soon as possible by an

  article of the same decree.” The city or region in question was declared hors la constitution.

  Although the paradigm is, on the one hand (in the state of siege) the extension of the

  military authority’s wartime powers into the civil sphere, and on the other a suspension

  of the constitution (or of those constitutional norms that protect individual liberties),

  STATE OF EXCEPTION

  171

  in time the two models end up merging into a single juridical phenomenon that we call

  the state of exception.

  א The expression full powers ( pleins pouvoirs), which is sometimes used to characterize the state of exception, refers to the expansion of the powers of the government, and

  in particular the conferral on the executive of the power to issue decrees having the force of law. It derives from the notion of plenitudo potestatis, which was elaborated in that true and proper laboratory of modern public legal terminology that was canon law. The

  presupposition here is that the state of exception entails a return to an original, pleromatic state in which the distinction among the different powers (legislative, executive, etc.) has not yet been produced. As we will see, the state of exception constitutes rather a kenomatic state, an emptiness of law, and the idea of an originary indistinction and fullness of power must be considered a legal mythologeme analogous to the idea of a state of nature (and