not subject to the law [ ipsa necessitas dispensationem habet annexam, quia necessitas
non subditur legi].
Here, the theory of necessity is none other than a theory of the exception
( dispensatio) by virtue of which a particular case is released from the obligation to observe the law. Necessity is not a source of law, nor does it properly suspend
the law; it merely releases a particular case from the literal application of the
norm: “He who acts beyond the letter of the law in a case of necessity does not
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judge by the law itself but judges by the particular case, in which he sees that the
letter of the law is not to be observed [ non iudicat de ipsa lege, sed iudicat de casu singulari, in quo videt verba legis observanda non esse].” The ultimate ground of
the exception here is not necessity but the principle according to which “every
law is ordained for the common well-being of men, and only for this does it
have the force and reason of law [ vim et rationem legis]; if it fails in this regard, it has no capacity to bind [ virtutem obligandi non habet].” In the case of necessity, the vis obligandi of the law fails, because in this case the goal of salus hominum is lacking. What is at issue here is clearly not a status or situation of the juridical order as such (the state of exception or necessity); rather, in each instance
it is a question of a particular case in which the vis and ratio of the law find no application.
א We find an example of the law’s ceasing to apply ex dispensatione misercordiae
[out of a dispensation of mercy] in a peculiar passage from Gratian where the canonist
states that the Church can elect not to punish a transgression in a situation where the
transgressive deed has already occurred ( pro eventu rei [for the consequence of the thing]: for example in a case where a person who could not accede to the episcopate
has in fact already been ordained as bishop). Paradoxically, the law is not applied here
precisely because the transgressive act has effectively already been committed and pun-
ishing it would anyway entail negative consequences for the Church. In analyzing this
text, Anton Schütz has rightly observed that “in conditioning validity by facticity, in
seeking contact with an extrajuridical reality, [Gratian] prevents the law from referring
only to the law, and thus prevents the closure of the juridical system” (Schütz 1995,
120). In this sense, the medieval exception represents an opening of the juridical system
to an external fact, a sort of fictio legis by which, in this case, one acts as if the bishop had been legitimately elected. The modern state of exception is instead an attempt to
include the exception itself within the juridical order by creating a zone of indistinction in which fact and law coincide.
א We find an implicit critique of the state of exception in Dante’s De monarchia.
Seeking to prove that Rome gained dominion over the world not through violence but
iure, Dante states that it is impossible to obtain the end of law (that is, the common good) without law, and that therefore “whoever intends to achieve the end of law, must proceed
with law [ quicunque finem iuris intendit cum iure graditur]” (2.5.22). The idea that a suspension of law may be necessary for the common good is foreign to the medieval world.
1.10. It is only with the moderns that the state of necessity tends to be in-
cluded within the juridical order and to appear as a true and proper “state” of
the law. The principle according to which necessity defines a unique situation in
which the law loses its vis obligandi (this is the sense of the adage necessitas legem
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non habet) is reversed, becoming the principle according to which necessity con-
stitutes, so to speak, the ultimate ground and very source of the law. This is true
not only for those writers who sought in this way to justify the national interests
of one state against another (as in the formula Not kennt kein Gebot [necessity
knows no law], used by the Prussian Chancellor Bethmann-Hollweg and taken
up again in Josef Kohler’s book of that title [1915]), but also for those jurists,
from Jellinek to Duguit, who see necessity as the foundation of the validity of
decrees having force of law issued by the executive in the state of exception.
It is interesting to analyze from this perspective the extreme position of
Santi Romano, a jurist who had a considerable influence on European legal
thought between the wars. For Romano, not only is necessity not unrelated to
the juridical order, but it is the first and originary source of law. He begins by
distinguishing between, on the one hand, those who see necessity as a jurid-
ical fact or even a subjective right of the state, which is ultimately grounded
as such in the legislation in force and in the general principles of law, and, on
the other hand, those who think necessity is a mere fact and that therefore the
emergency [ eccezionali] powers founded upon it have no basis in the legislative
system. According to Romano, both positions, which agree in their identifi-
cation of the juridical order [ il diritto] with the law [ la legge],* are incorrect, insofar as they disavow the existence of a true and proper source of law beyond
legislation.
The necessity with which we are concerned here must be conceived of as a state
of affairs that, at least as a rule and in a complete and practically effective way,
cannot be regulated by previously established norms. But if it has no law, it makes
law, as another common expression has it; which means that it itself constitutes a
true and proper source of law. . . . It can be said that necessity is the first and orig-
inary source of all law, such that by comparison the others are to be considered
somehow derivative. . . . And it is to necessity that the origin and legitimation of
the legal institution par excellence, namely, the state, and its constitutional order
in general, must be traced back, when it is established as a de facto process, for
example, on the way to revolution. And what occurs in the initial moment of a
particular regime can also repeat itself, though in an exceptional way and with
more attenuated characteristics, even after the regime has formed and regulated
its fundamental institutions. (Romano 1909, 362)
* The two terms here are diritto and legge, both of which are usually translated in English as “law.”
While these terms have close correspondences in French ( droit, loi), Spanish ( derecho, ley), and German ( Recht, Gesetz), some of their sense is inevitably lost in the passage to English. Among their meanings, diritto carries the sense of law in the abstract, or the entire sphere of law, while legge refers to the specific body of rules that a community or state considers binding. Here and in a few other cases where this distinction is critical, I have, following the author’s suggestion, rendered diritto as “the juridical order” and legge as “the law.”—Trans.
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As a figure of necessity, the state of exception therefore appears (alongside
revolution and the de facto establishment of a constitutional system) as an
“ illegal” but perfectly “juridical and constitutional” measure that is realized in
the production of new norms (or of a new juridical order):
The formula . . . according to which, in Italian law, the state of siege is a mea-
sure that is contr
ary to the law (let us even say illegal) but is at the same time in
conformity with the unwritten positive law, and is for this reason juridical and
constitutional, seems to be the most accurate and fitting formula. From both
the logical and the historical points of view, necessity’s ability to overrule the
law derives from its very nature and its originary character. Certainly, the law
has by now become the highest and most general manifestation of the juridical
norm, but it is an exaggeration to want to extend its dominion beyond its own
field. There are norms that cannot or should not be written; there are others that
cannot be determined except when the circumstances arise for which they must
serve. (Romano 1909, 364)
The gesture of Antigone, which opposed the written law to the agrapta nomima
[unwritten laws] is here reversed and asserted in defense of the constituted order.
But in 1944, by which timea civil war was under way in his country, the elderly ju-
rist (who had already studied the de facto establishment of constitutional orders)
returned to consider the question of necessity, this time in relation to revolution.
Although revolution is certainly a state of fact that “cannot be regulated in its
course by those state powers that it tends to subvert and destroy” and in this sense
is by definition “antijuridical, even when it is just” (Romano 1983, 222), it can,
however, appear this way only
with respect to the positive law of the state against which it is directed, but that
does not mean that, from the very different point of view from which it defines
itself, it is not a movement ordered and regulated by its own law. This also means
that it is an order that must be classified in the category of originary juridical
orders, in the now well-known sense given to this expression. In this sense, and
within the limits of the sphere we have indicated, we can thus speak of a law of
revolution. An examination of how the most important revolutions, including
the most recent ones, have unfolded would be of great interest for demonstrating
the thesis that we have advanced, which could at first sight seem paradoxical:
revolution is violence, but it is juridically organized violence. (Romano 1983, 224)
Thus, in the forms of both the state of exception and revolution, the status
necessitatis appears as an ambiguous and uncertain zone in which de facto pro-
ceedings, which are in themselves extra- or antijuridical, pass over into law, and
juridical norms blur with mere fact—that is, a threshold where fact and law
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seem to become undecidable. If it has been effectively said that in the state of
exception fact is converted into law (“Emergency is a state of fact; however, as
the brocard fittingly says, e facto oritur ius [law arises from fact]” [Arangio-Ruiz 1913, 528]), the opposite is also true, that is, that an inverse movement also acts
in the state of exception, by which law is suspended and obliterated in fact. The
essential point, in any case, is that a threshold of undecidability is produced at
which factum and ius fade into each other.
Hence the aporias that every attempt to define necessity is unable to resolve.
If a measure taken out of necessity is already a juridical norm and not simply
fact, why must it be ratified and approved by a law, as Santi Romano (along with
the majority of writers) believes it must? If it is already law, why does it not last if
it is not approved by the legislative bodies? And if instead it is not law, but sim-
ply fact, why do the legal effects of its ratification begin not from the moment
it is converted into law, but ex tunc [from then]? (Duguit rightly notes that this retroactivity is a fiction and that ratification can produce its effects only from the
moment at which it occurs [Duguit 1930, 754].)
But the extreme aporia against which the entire theory of the state of neces-
sity ultimately runs aground concerns the very nature of necessity, which writers
continue more or less unconsciously to think of as an objective situation. This
naive conception—which presupposes a pure factuality that the conception it-
self has called into question—is easily critiqued by those jurists who show that,
far from occurring as an objective given, necessity clearly entails a subjective
judgment, and that obviously the only circumstances that are necessary and
objective are those that are declared to be so.
The concept of necessity is an entirely subjective one, relative to the aim that one
wants to achieve. It may be said that necessity dictates the issuance of a given
norm, because otherwise the existing juridical order is threatened with ruin; but
there must be agreement on the point that the existing order must be preserved.
A revolutionary uprising may proclaim the necessity of a new norm that annuls
the existing institutions that are contrary to the new exigencies; but there must
be agreement in the belief that the existing order must be disrupted in observance
of new exigencies. In both cases . . . the recourse to necessity entails a moral or
political (or, in any case, extrajuridical) evaluation, by which the juridical order
is judged and is held to be worthy of preservation or strengthening even at the
price of its possible violation. For this reason, the principle of necessity is, in every
case, always a revolutionary principle. (Balladore-Pallieri 1970, 168)
The attempt to resolve the state of exception into the state of necessity thus
runs up against as many and even more serious aporias of the phenomenon that
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191
it should have explained. Not only does necessity ultimately come down to a
decision, but that on which it decides is, in truth, something undecidable in
fact and law.
א Schmitt (who refers several times to Santi Romano in his writings) probably knew
of Romano’s attempt to ground the state of exception in necessity as the originary source
of law. His theory of sovereignty as the decision on the exception grants the Notstand a properly fundamental rank, one that is certainly comparable to the rank given it by
Romano, who made it the originary figure of the juridical order. Furthermore, he shares
with Romano the idea that the juridical order [ il diritto] is not exhausted in the law [ la legge] (it is not by chance that he cites Romano precisely in the context of his critique of the liberal Rechtsstaat); but while the Italian jurist wholly equates the state with law, and therefore denies all juridical relevance of the concept of constituent power, Schmitt
sees the state of exception as precisely the moment in which state and law reveal their
irreducible difference (in the state of exception “the state continues to exist, while law recedes” [Schmitt 1922, 13/12]), and thus he can ground the extreme figure of the state of exception—sovereign dictatorship—in the pouvoir constituant.
1.11. According to some writers, in the state of necessity “the judge elabo-
rates a positive law of crisis, just as, in normal times, he fills in juridical lacu-
nae” (Mathiot 1956, 424). In this way the problem of the state of exception is
put into relation with a particularly interesting problem in legal theory, that
of lacunae in the juridical order [ il diritto]. At least as early as Article 4 of the Napoleonic Code
(“The judge who refuses to judge, on the pretence of silence,
obscurity or insufficiency of the law, can be prosecuted on the charge of denial
of justice”), in the majority of modern legal systems the judge is obligated to
pronounce judgment even in the presence of a lacuna in the law [ la legge]. In
analogy with the principle according to which the law [ la legge] may have lacu-
nae, but the juridical order [ il diritto] admits none, the state of necessity is thus interpreted as a lacuna in public law, which the executive power is obligated to
remedy. In this way, a principle that concerns the judiciary power is extended
to the executive power.
But in what does the lacuna in question actually consist? Is there truly
something like a lacuna in the strict sense? Here, the lacuna does not concern a
deficiency in the text of the legislation that must be completed by the judge; it
concerns, rather, a suspension of the order that is in force in order to guarantee its existence. Far from being a response to a normative lacuna, the state of exception appears as the opening of a fictitious lacuna in the order for the purpose
of safeguarding the existence of the norm and its applicability to the normal
situation. The lacuna is not within the law [ la legge], but concerns its relation
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to reality, the very possibility of its application. It is as if the juridical order [ il diritto] contained an essential fracture between the position of the norm and its
application, which, in extreme situations, can be filled only by means of the state
of exception, that is, by creating a zone in which application is suspended, but
the law [ la legge], as such, remains in force.
2
Force-of-Law
2.1. The most rigorous attempt to construct a theory of the state of ex-
ception was made by Carl Schmitt, essentially in the books Dicta-
torship and, one year later, Political Theology. Because these two books from the beginning of the 1920s describe—with a, so to speak, interested prophesy—a
paradigm (a “form of government” [Schmitt 1921, 151]) that has not only re-
mained current but has today reached its full development, it is necessary at
this point to present the fundamental theses of Schmitt’s theory of the state of
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