The State of Exception [raed-maxime-hoda]

The state of exception “defines law’s threshold or limit concept.” It is a point where power is accorded to an authority to resolve an issue that is not encompassed by the existing democratic laws. When basic needs are at stake, the executive power can extend its rights if necessary above the law. At this level of reasoning there is no distinction between the executive, juridical and the legislative powers. The state of exception becomes the rule, and acts with “carte blanche”. It creates its own laws and can even “temporarily” disregard existing laws. It fills the gaps which existing laws do not include. Therein lies the paradox.

Such exceptions arise because they are perceived as a necessity. Such necessities are mostly basic human needs and in a time of need power is delegated so as to resolve the problem. An inconvenience of the state of exceptions is that the source of powers is located in such a tight group and the decisions taken as well as the laws that are passed in a situation of crisis can sometimes override the constitutional laws in a way that is exceeding its transitional nature (surpassing its quantity of necessity and its temporal status). A good example of that is the abuse of Article 48 during the Second World War which permitted a continuous coercion. It becomes totalitarian in nature because necessity is not always an objective notion.

The state of exception becomes a paradox since it is a law that in itself suspends already existing laws. Since its application depends on the specificity of each case, it legitimizes derivative situations in which other exceptions could be made, hence validating others’ right to resist. The state of exception is that it is needed to normalize socio-political issues but when it is called upon, there is always a danger that it will be transgressed. It is a black hole, a gap in time and space that does not have the required exclusions in order to define itself as a stable system. Such powers are dangerous when bestowed upon a single body that can impose them on a larger group, because they end up eroding the so-called “democracy” they are supposed to protect.