it is not by chance that it was precisely Schmitt who had recourse to this mythologeme).
In any case, the term full powers describes one of the executive power’s possible modes of action during the state of exception, but it does not coincide with it.
1.5. Between 1934 and 1948, in the face of the collapse of Europe’s democ-
racies, the theory of the state of exception (which had made a first, isolated ap-
pearance in 1921 with Schmitt’s book Dictatorship) saw a moment of particular
fortune, but it is significant that this occurred in the pseudomorphic form of a
debate over so-called constitutional dictatorship.
This term (which German jurists had already used to indicate the emer-
gency [ eccezionali] powers that Article 48 of the Weimar Constitution granted
the president of the Reich [Hugo Preuss: Reichsverfassungsmäßige Diktatur])
was taken up again and developed by Frederick M. Watkins (“The Problem of
Constitutional Dictatorship,” 1940), Carl J. Friedrich ( Constitutional Govern-
ment and Democracy, [1941] 1950), and finally Clinton L. Rossiter ( Constitutional Dictatorship: Crisis Government in the Modern Democracies, 1948). Before them, we must also at least mention the book by the Swedish jurist Herbert Tingsten,
Les pleins pouvoirs. L’expansion des pouvoirs gouvernementaux pendant et après la
Grande Guerre (1934). While these books are quite varied and as a whole more
dependent on Schmitt’s theory than a first reading might suggest, they are nev-
ertheless equally important because they record for the first time how the dem-
ocratic regimes were transformed by the gradual expansion of the executive’s
powers during the two world wars and, more generally, by the state of exception
that had accompanied and followed those wars. They are in some ways the her-
alds who announced what we today have clearly before our eyes—namely, that
since “the state of exception . . . has become the rule” (Benjamin 1942, 697/257),
it not only appears increasingly as a technique of government rather than an
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exceptional measure, but it also lets its own nature as the constitutive paradigm
of the juridical order come to light.
Tingsten’s analysis centers on an essential technical problem that profoundly
marks the evolution of the modern parliamentary regimes: the delegation con-
tained in the “full powers” laws mentioned above, and the resulting extension of
the executive’s powers into the legislative sphere through the issuance of decrees
and measures. “By ‘full powers laws’ we mean those laws by which an exception-
ally broad regulatory power is granted to the executive, particularly the power to
modify or abrogate by decree the laws in force” (Tingsten 1934, 13). Because laws
of this nature, which should be issued to cope with exceptional circumstances
of necessity or emergency, conflict with the fundamental hierarchy of law and
regulation in democratic constitutions and delegate to the executive [ governo]
a legislative power that should rest exclusively with parliament, Tingsten seeks
to examine the situation that arose in a series of countries (France, Switzerland,
Belgium, the United States, England, Italy, Austria, and Germany) from the
systematic expansion of executive [ governamentali] powers during World War
One, when a state of siege was declared or full powers laws issued in many of
the warring states (and even in neutral ones, like Switzerland). The book goes
no further than recording a large number of case histories; nevertheless, in the
conclusion the author seems to realize that although a temporary and controlled
use of full powers is theoretically compatible with democratic constitutions, “a
systematic and regular exercise of the institution necessarily leads to the ‘liqui-
dation’ of democracy” (333). In fact, the gradual erosion of the legislative powers
of parliament—which today is often limited to ratifying measures that the ex-
ecutive issues through decrees having the force of law—has since then become a
common practice. From this perspective, World War One (and the years follow-
ing it) appear as a laboratory for testing and honing the functional mechanisms
and apparatuses of the state of exception as a paradigm of government. One of
the essential characteristics of the state of exception—the provisional abolition
of the distinction among legislative, executive, and judicial powers—here shows
its tendency to become a lasting practice of government.
Friedrich’s book makes much more use than is apparent of Schmitt’s theory
of dictatorship, which is dismissed in a footnote as “a partisan tract” (Friedrich
[1941] 1950, 664). Schmitt’s distinction between commissarial dictatorship and
sovereign dictatorship reappears here as an opposition between constitutional
dictatorship, which seeks to safeguard the constitutional order, and unconstitu-
tional dictatorship, which leads to its overthrow. The impossibility of defining
and overcoming the forces that determine the transition from the first to the
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173
second form of dictatorship (which is precisely what happened, for example, in
Germany) is the fundamental aporia of Friedrich’s book, as it is generally of all
theories of constitutional dictatorship. All such theories remain prisoner in the
vicious circle in which the emergency measures they seek to justify in the name
of defending the democratic constitution are the same ones that lead to its ruin:
[T]here are no ultimate institutional safeguards available for insuring that emer-
gency powers be used for the purpose of preserving the Constitution. Only the
people’s own determination to see them so used can make sure of that. . . . All
in all the quasi-dictatorial provisions of modern constitutional systems, be they
martial rule, state of siege, or constitutional emergency powers, fail to conform
to any exacting standard of effective limitations upon a temporary concentra-
tion of powers. Consequently, all these systems are liable to be transformed into
totalitarian schemes if conditions become favorable to it. (584)
In Rossiter’s book these aporias explode into open contradictions. Unlike
Tingsten and Friedrich, Rossiter explicitly seeks to justify constitutional dictator-
ship through a broad historical examination. His hypothesis here is that because
the democratic regime, with its complex balance of powers, is conceived to func-
tion under normal circumstances, “in time of crisis a democratic, constitutional gov-
ernment must temporarily be altered to whatever degree is necessary to overcome the
peril and restore normal conditions. This alteration invariably involves government of a stronger character; that is, the government will have more power and the people
fewer rights” (Rossiter 1948, 5). Rossiter is aware that constitutional dictatorship (that is, the state of exception) has, in fact, become a paradigm of government
(“a well-established principle of constitutional government” [4]) and that as such
it is fraught with dangers; nevertheless, it is precisely the immanent necessity of
constitutional dictatorship that he intends to demonstrate. But as he makes this
attempt, he entangles himself in irresolvable contradictions
. Indeed, Schmitt’s
model (which he judges to be “trail-blazing, if somewhat occasional,” and which
he seeks to correct [14]), in which the distinction between commissarial dicta-
torship and sovereign dictatorship is not one of nature but of degree (with the
decisive figure undoubtedly being the latter), is not so easily overcome. Although
Rossiter provides no fewer than eleven criteria for distinguishing constitutional
dictatorship from unconstitutional dictatorship, none of them is capable either
of defining a substantial difference between the two or of ruling out the passage
from one to the other. The fact is that the two essential criteria of absolute neces-
sity and temporariness (which all the others come down to in the last analysis)
contradict what Rossiter knows perfectly well, that is, that the state of excep-
tion has by now become the rule: “In the Atomic Age upon which the world
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is now entering, the use of constitutional emergency powers may well become
the rule and not the exception” (297); or as he says even more clearly at the end
of the book, “In describing the emergency powers of the western democracies,
this book may have given the impression that such techniques of government
as executive dictatorship, the delegation of legislative power, and lawmaking by
administrative degree were purely transitory and temporary in nature. Such an
impression would be distinctly misleading. . . . The instruments of government
depicted here as temporary ‘crisis’ arrangements have in some countries, and may
eventually in all countries, become lasting peacetime institutions” (313). This pre-
diction, which came eight years after Benjamin’s first formulation in the eighth
thesis on the concept of history, was undoubtedly accurate; but the words that
conclude the book sound even more grotesque: “No sacrifice is too great for our
democracy, least of all the temporary sacrifice of democracy itself ” (314).
1.6. An examination of how the state of exception is situated in the legal
traditions of the Western states reveals a division—clear in principle, but hazier
in fact—between orders that regulate the state of exception in the text of the
constitution or by a law and those that prefer not to regulate the problem explic-
itly. To the first group belong France (where the modern state of exception was
born in the time of the Revolution) and Germany; to the second belong Italy,
Switzerland, England, and the United States. Scholarship is also correspondingly
divided between writers who favor a constitutional or legislative provision for
the state of exception and others (Carl Schmitt foremost among them) who un-
reservedly criticize the pretense of regulating by law what by definition cannot
be put in norms [ normato]. Though on the level of the formal constitution the
distinction is undoubtedly important (insofar as it presupposes, in the latter
case, that acts performed by the government outside of or in conflict with the
law can theoretically be considered illegal and must therefore be rectified by a
special “bill of indemnity”), on the level of the material constitution something
like a state of exception exists in all the above-mentioned orders, and the history
of the institution, at least since World War One, shows that its development is
independent of its constitutional or legislative formalization. Thus, in the Wei-
mar Republic (where Article 48 of the constitution regulated the powers of the
president of the Reich whenever the “public security and order” [ die öffentliche
Sicherheit und Ordnung] were threatened), the state of exception performed a
surely more decisive function than in Italy, where the institution was not ex-
plicitly provided for, or in France, which regulated it by a law and which also
frequently had recourse to the état de siège and legislation by decree.
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175
1.7. The problem of the state of exception presents clear analogies to that of
the right of resistance. It has been much debated, particularly during constituent
assemblies, whether the right of resistance should be included in the text of the
constitution. The draft of the current Italian Constitution included an article
that read, “When the public powers violate the rights and fundamental liberties
guaranteed by the Constitution, resistance to oppression is a right and a duty of
the citizen.” This proposal, which followed a suggestion by Giuseppe Dossetti,
one of the most prestigious of the leading Catholic figures, met with sharp oppo-
sition. Over the course of the debate the opinion that it was impossible to legally
regulate something that, by its nature, was removed from the sphere of positive
law prevailed, and the article was not approved. However, in the Constitution
of the German Federal Republic there is an article (Article 20) that unequivo-
cally legalizes the right of resistance, stating that “against anyone who attempts
to abolish that order [the democratic constitution], all Germans have a right of
resistance, if no other remedies are possible.”
The opposing arguments here are exactly symmetrical to the ones that divide
advocates of legalizing the state of exception in the text of the constitution or a
special law and those jurists who believe its normative regulation to be entirely
inappropriate. It is certain, in any case, that if resistance were to become a right
or even a duty (the omission of which could be punished), not only would the
constitution end up positing itself as an absolutely untouchable and all-encom-
passing value, but the citizens’ political choices would also end up being deter-
mined by juridical norms [ giuridicamente normate]. The fact is that in both the
right of resistance and the state of exception, what is ultimately at issue is the
question of the juridical significance of a sphere of action that is in itself extra-
juridical. Two theses are at odds here: One asserts that law must coincide with
the norm, and the other holds that the sphere of law exceeds the norm. But in
the last analysis, the two positions agree in ruling out the existence of a sphere of
human action that is entirely removed from law.
א a brief history of the state of exception. We have already
seen how the state of siege had its origin in France during the Revolution. After being
established with the Constituent Assembly’s decree of July 8, 1791, it acquired its proper physiognomy as état de siège fictif or état de siège politique with the Directorial law of August 27, 1797, and, finally, with Napoleon’s decree of December 24, 1811. The idea
of a suspension of the constitution (of the “rule of the constitution”) had instead been
introduced, as we have also seen, by the Constitution of 22 Frimaire Year 8. Article 14
of the Charte of 1814 granted the sovereign the power to “make the regulations and ordinances necessary for the execution of the laws and the security of the State”; because
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of the vagueness of the formula, Chateaubriand observed “that it is possible that one
fine morning the whole Charte will be forfeited for the benefit of Article 14.” The state of siege was expressly mentioned in the Acte additionel
to the Constitution of April 22, 1815, which stated that it could only be declared with a law. Since then, moments of
constitutional crisis in France over the course of the nineteenth and twentieth centuries
have been marked by legislation on the state of siege. After the fall of the July Monarchy, a decree by the Constituent Assembly on June 24, 1848, put Paris in a state of siege and
assigned General Cavaignac the task of restoring order in the city. Consequently, an
article was included in the new constitution of November 4, 1848, establishing that the
occasions, forms, and effects of the state of siege would be firmly set by a law. From this moment on, the dominant principle in the French tradition (though, as we will see, not
without exceptions) has been that the power to suspend the laws can belong only to the
same power that produces them, that is, parliament (in contrast to the German tradi-
tion, which entrusted this power to the head of state). The law of August 9, 1849 (which
was partially restricted later by the law of April 3, 1878), consequently established that a political state of siege could be declared by parliament (or, additionally, by the head
of state) in the case of imminent danger to external or internal security. Napoleon III
had recourse several times to this law and, once installed in power, he transferred, in the constitution of January 1852, the exclusive power to proclaim a state of siege to the head of state. The Franco-Prussian War and the insurrection of the Commune coincided with
an unprecedented generalization of the state of exception, which was proclaimed in forty
departments and lasted in some of them until 1876. On the basis of these experiences,
and after MacMahon’s failed coup d’état in May 1877, the law of 1849 was modified to
establish that a state of siege could be declared only with a law (or, if the Chamber of
Deputies was not in session, by the head of state, who was then obligated to convene
parliament within two days) in the event of “imminent danger resulting from foreign
war or armed insurrection” (law of April 3, 1878, Art. 1).
World War One coincided with a permanent state of exception in the majority
of the warring countries. On August 2, 1914, President Poincaré issued a decree that
put the entire country in a state of siege, and this decree was converted into law by
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