By Lars Lofgren
Giorgio Agamben provides a thorough historical and legal contextualization of the state of exception, defining its critical nature and development. Defined as the expansion of executive power in response to existential threats to the nation, the state of exception has become the norm of executive power throughout Western democracies. Analyzing the legal and political theory that has given rise to the state of exception, Agamben delivers a highly detailed description of this legal concept. From its origins in Roman law, Agamben traces the evolution of the state of exception through two political scholars, Walter Benjamin and Carl Schmitt. Today, the state of exception has allowed the President of the United States to unilaterally expand executive power into legislative and judicial domains.
Agamben’s Take-Home Points:
- The state of exception is the expansion of the executive power to the point where presidential decrees have the force of law, often invoked during “states of siege” or a “state of war.” Through this expansion of executive power, the separation of powers no longer constrains the executive branch. It is not the suspension of law but an extrajudicial state where Presidential power works with and above the current judicial system (Chapter 1).
- The importance of continual security has come to produce a continual state of exception in contrast to traditional declarations of war in Western democracies (14).
- Abraham Lincoln (20), Franklin D. Roosevelt (21-22), and George W. Bush (3, 22) all serve as case studies for this state of exception and its gradual temporal expansion.
- The state of exception depends on a conception of necessity, usually the survival of the state. However, necessity is always subjective (30).
- The state of exception has evolved from the Roman law of iustitium, the suspension of law during times of necessity (41).
- Western judicial order can be describes as a duality between auctoritas and potestas. Auctorita is the anomic or “metajuridical” whereas potestas is the normative juridical process. That state of exception is what ties these systems together and allows Western politics to access the legal anomie without abandoning conventional legal processes (85-86).
- Agamben argues that the perpetual utilization of the state of exception will ultimately undermine Western law and lead to a “global civil war” (87).
For legal scholars or those interested in the expansion of executive power, this book provides a great deal of pertinent analysis. For the majority of readers, finding the book at a library and reading the first chapter as well as the last few pages will be more than enough. Unless the topic of this book deeply resonates with you, there are more important books to spend your money on. Or just hop on over to Scribd, the entire book has been posted here.
While the quality of Agamben’s legal analysis and research cannot be questioned, he neglects to analyze the state of exception from a political science lens, specifically in terms of institutions and structural limitations. There are two primarily limitations to any utilization of the state of exception, the complexity of Western political systems and the electorate. Given the highly bureaucratic nature of any Western political system, Presidential decrees will unavoidablyreach resistance within the system. Obviously, fervent nationalism (Nazi Germany) or traumatic national events (September 11) can consolidate a political regime and reduce structural resistance but this situation does not represent the norm.
Additionally, the President and his political party ultimately must answer to the electorate. Unless the President is able to subvert this process as well with the state of exception, the electorate may abandon the President in favor of a completely different candidate. The shift from a substantial support for the Bush Administration to the 2006 Democratic Congressional majority and the subsequent election of Barak Obama exemplify this. In short, further empirical evidence and analysis is required before one can emphatically claim that the state of exception has eroded the foundations of democracy and reduced Western democracies to police states.
Agamben, Giorgio. State of Exception. Translated and edited by Kevin Attell. Chicago: University of Chicago, 2005.
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