The State has employed from time to time a political action by declaring an emergency and suspending the laws and/or Constitutions of the country. This state of emergency is what Agamben calls the “State of Exception.” Readers will be familiar with declaring a state of emergency more from the results of a natural disaster, such as a catastrophic forest fire, or, as readers from California are most familiar with now, a prolonged drought.
This is not the emergency Agamben means. He is mainly concerned with states of emergency precipitated from social or political events. For instance, Napoleon declaring a state of siege due to the Reign of Terror. More modernly, Agamben discusses the state of exception with regards to the current War on Terror.
Agamben examines the historical record and customs of the European countries with regard to these emergency measures. The state of exception has different names in different countries.
In Germany it was Article 48 of the Weimar Constitution, employed by Hitler to gain absolute power.
In Switzerland it was a Constitutional provision giving the federal government power to take all measures to “guarantee security.”
In Italy it was a provision of emergency executive decrees.
In France it was the suspension of rights whenever there was a “state of siege.”
In England, it was the institution of martial law.
Here in the United States it is Article I of the United States Constitutional which provides for the suspension of habeas corpus in times of insurrection. This provision has morphed, recently, into the “War on Terrorism;” the suspension of all rights, not simply to habeas corpus, to persons providing “material support” to terrorists; and other features not mentioned by Agamben, such as the concept of the “unitary executive,” granting near dictatorial power to the Executive; the declaration of “permanent war” — a de facto state of exception — on terrorism; and the term “War on Terrorism” itself. The list could go on and on.
Agamben sees many dangers with these sovereign powers. One, his historical analysis demonstrates that once granted, these powers are rarely withdrawn voluntarily. Two, if they are withdrawn, the reason is usually due to factors other than the reason these emergency powers were invoked, such as in the complete breakdown of the governmental apparatus, whether through war, Nazi Germany being an extreme example, or otherwise. Three, these sovereign powers are detrimental, if not positively antithetical, to the concept of a functioning democracy. And, four, while the historical record demonstrates these emergency powers were infrequently invoked, more contemporaneously they are the rule rather than the exception, whether invoked by traditional democratic or totalitarian States.
While Agamben does not employ this terminology, the State of Exception is a cancer to democratic institutions. Again, this is certainly true of Germany, when, as Agamben reminds us, Hitler’s actions after he obtained power, while horrific, were all “legal,” and within the bounds of his legal emergency powers.
Agamben’s book, then, is a word of caution. It is Agamben’s way of warning that a state of exception, once invoked, is a slippery slope, having its own costs to democracy.
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