The State of Exception
In The State of Exception as a Paradigm of Government, Giorgio Agamben discusses the “state of exception”, which is a term that is very difficult to define. However, in a nutshell, it can be understood as the state power’s immediate response to disturbances that threaten the security of the state. As seen in history, it involves the provisional suspension of laws and the extension of military’s control into the civil sphere. Consequently, it leaves the state in an ambiguous situation where there is no distinction between the legislative, executive and judicial powers.
Whether the state of exception should be controlled by laws or considered as an extrajuridical phenomenon has been left to be decided by each democratic country. France and Germany regulate it in their constitutions, whereas Italy, Switzerland, England and the United States don’t explicitly include the state of exception within their sphere of juridical order. In France, it was introduced as état de siege in late 18th century but it remained vague and opened to abuse. Modifications were later sequentially done to the constitution to establish that the occasions, forms and effects would be firmly set by laws. Similarly, in Germany, in mid-19th century, an article granted the president extremely broad emergency powers. The present constitution, however, has more precise regulations of the state of exception although, it even allows for it to be used not only to safeguard public order and security but to defend the “liberal-democratic constitution”. As to Switzerland, Italy, England and the United States, they all still grant vague and extremely vast control to the executive powers in unclearly defined extraordinary emergency situations. According to Agambem, the state of exception should not be, in fact, considered as external or internal to the juridical order. More precisely, it is a zone “where inside and outside do not exclude each other but rather blur with each other”.
The concept of necessity as the foundation of the state of exception where “necessity has no law” also brings up diverging opinions. Some theories interpret it as “necessity does not recognize any law” and some others understands it as “necessity creates its own law”. However, they agree that the understanding of the concept of necessity can legitimate the existence of the state of exception. In truth, necessity is entirely subjective and dependent of an aim. It comes down to taking a decision on whether the existing juridical order must be disrupted or not, which requires moral and political judgements, and not fact and law. Therefore, the attempt to understand necessity brings up even more questions about the state of exception, which it was supposed to explain.
( Sieu Huy, Claudia)
Whether the state of exception should be controlled by laws or considered as an extrajuridical phenomenon has been left to be decided by each democratic country. France and Germany regulate it in their constitutions, whereas Italy, Switzerland, England and the United States don’t explicitly include the state of exception within their sphere of juridical order. In France, it was introduced as état de siege in late 18th century but it remained vague and opened to abuse. Modifications were later sequentially done to the constitution to establish that the occasions, forms and effects would be firmly set by laws. Similarly, in Germany, in mid-19th century, an article granted the president extremely broad emergency powers. The present constitution, however, has more precise regulations of the state of exception although, it even allows for it to be used not only to safeguard public order and security but to defend the “liberal-democratic constitution”. As to Switzerland, Italy, England and the United States, they all still grant vague and extremely vast control to the executive powers in unclearly defined extraordinary emergency situations. According to Agambem, the state of exception should not be, in fact, considered as external or internal to the juridical order. More precisely, it is a zone “where inside and outside do not exclude each other but rather blur with each other”.
The concept of necessity as the foundation of the state of exception where “necessity has no law” also brings up diverging opinions. Some theories interpret it as “necessity does not recognize any law” and some others understands it as “necessity creates its own law”. However, they agree that the understanding of the concept of necessity can legitimate the existence of the state of exception. In truth, necessity is entirely subjective and dependent of an aim. It comes down to taking a decision on whether the existing juridical order must be disrupted or not, which requires moral and political judgements, and not fact and law. Therefore, the attempt to understand necessity brings up even more questions about the state of exception, which it was supposed to explain.
( Sieu Huy, Claudia)
posted by claudia at 4:08 AM
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