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PURPLE PATCH: The State of Emergency —Giorgio Agamben

In his Political Theology (1922), Carl Schmitt (1888-1985) established the essential proximity between the state of emergency and sovereignty. But although his famous definition of the sovereign as “the one who can proclaim a state of emergency” has been commented on many times, we still lack a genuine theory of the state of emergency within public law. For legal theorists as well as legal historians it seems as if the problem would be more of a factual question than an authentic legal question.

The very definition of the term is complex, since it is situated at the limit of law and of politics. According to a widespread conception, the state of emergency would be situated at an “ambiguous and uncertain fringe at the intersection of the legal and the political,” and would constitute a “point of disequilibrium between public law and political fact.” The task of defining its limits is nevertheless nothing less than urgent. And, indeed, if the exceptional measures that characterize the state of emergency are the result of periods of political crisis, and if they for this very reason must be understood through the terrain of politics rather than through the legal or constitutional terrain, they find themselves in the paradoxical position of legal measures that cannot be understood from a legal point of view, and the state of emergency presents itself as the legal form of that which can have no legal form.

And, furthermore, if the sovereign exception is the original set-up through which law relates to life in order to include it in the very same gesture that suspends its own exercise, then a theory of the state of emergency would be the preliminary condition for an understanding of the bond between the living being and law. To lift the veil that covers this uncertain terrain between, on the one hand, public law and political fact, and on the other, legal order and life, is to grasp the significance of this difference, or presumed difference, between the political and the legal; and between law and life.

Among the elements that render a definition of the state of emergency thorny, we find the relationship it has to civil war, insurrection and the right to resist. And, in fact, since civil war is the opposite of the normal state, it tends to coalesce with the state of emergency, which becomes the immediate response of the State when faced with the gravest kind of internal conflict. In this way, the 20th century has produced a paradoxical phenomenon defined as “legal civil war.”

Let us look at the case of Nazi Germany. Just after Hitler came to power (or, to be more precise, just after he was offered power) he proclaimed, on February 28, 1933, the Decree for the Protection of the People and the State. This decree suspends all the articles in the Weimar Constitution maintaining individual liberties. Since this decree was never revoked, we can say that the entire Third Reich from a legal point of view was a twelve year-long state of emergency. And in this sense we can define modern totalitarianism as the institution, by way of a state of emergency, of a legal civil war that permits the elimination not only of political adversaries, but whole categories of the population that resist being integrated into the political system. Thus the intentional creation of a permanent state of emergency has become one of the most important measures of contemporary States, democracies included. And furthermore, it is not necessary that a state of emergency be declared in the technical sense of the term.

At least since Napoleon’s decree of December 24, 1811, French doctrine has opposed a “fictitious or political” state of siege in contradistinction to a military state of siege. In this context, English jurisprudence speaks of a “fancied emergency”; Nazi legal theorists spoke unconditionally of an “intentional state of emergency” in order to install the National Socialist State. During the world wars, the recourse to a state of emergency was spread to all the belligerent States. Today, in the face of the continuous progression of something that could be defined as a “global civil war,” the state of emergency tends more and more to present itself as the dominant paradigm of government in contemporary politics. Once the state of emergency has become the rule, there is a danger that this transformation of a provisional and exceptional measure into a technique of government will entail the loss of the traditional distinction between different forms of Constitution.

The basic significance of the state of emergency as an original structure through which law incorporates the living being — and, this, by suspending itself — has emerged with full clarity in the military order that the President of the United States issued on November 13, 2001. The issue was to subject non-citizens suspected of terrorist activities to special jurisdiction that would include “indefinite detention” and military tribunals. The U.S. Patriot Act of October 26, 2001, already authorized the Attorney General to detain every alien suspected of endangering national security. Nevertheless, within seven days, this alien had to either be expelled or accused of some crime. What was new in Bush’s order was that it radically eradicated the legal status of these individuals, and produced entities that could be neither named nor classified by the Law. Those Taliban captured in Afghanistan are not only excluded from the status as Prisoners of War defined by the Geneva Conventions, they do not correspond to any jurisdiction set by American law: neither prisoners nor accused, they are simply detainees, they are subjected to pure de facto sovereignty/to a detention that is indefinite not only in its temporal sense, but also in its nature, since it is outside of the law and of all forms of legal control. With the detainees at Guantamo Bay, naked life returns to its most extreme indetermination.

Giorgio Agamben is Professor of Philosophy at the University of Verona. This is excerpted from an extract from a lecture given at the Centre Roland-Barthes (Universite Paris VII, Denis-Diderot)

—Sent by Mehreen Zahra-Malik

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