The state-of-exception is the norm for the global West. The crisis has demanded that law cease to operate so that it may be preserved. Carl Schmitt was one of the first to offer a juridical theory of exception, the moment sovereignty is unveiled. He who is sovereign decides the exception. Rather than the self-operation presumed at the heart of liberal jurisprudence, where law simply enforces itself, the exception proves the law depends upon a power that simultaneously stands above the law and within it. This juridical theory depends upon theology for its origins; for God is both the one who maintains the predictable and rational laws of nature, as well as determine their exception in a miracle. It's only the abnormal, which establishes the normativity of the law in force. However, in this current epoch, the law and its force have become inextricably confused. Our current age is one of totalitarian apocalypse:
"modern totalitarianism can be defined as the establishment, by means of a state of exception, of a legal civil war that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system. Since then, the voluntary creation of a permanent state of emergency (though perhaps not declared in the technical sense) has become one of the essential practices of contemporary states, including so-called democratic ones." (2)
Agamben's analysis came off the heels of 9/11 and the new paradigm of a global War on Terror. The Patriot Act, which enflamed conscientious liberals as much as ardent lovers of liberty, allowed the government to detain citizens on suspicion of being a threat to national security. The entire apparatus of the law seemed to blur, for the Patriot Act paradoxically was a law which deactivated the law. Those taken into custody were now neither citizen nor enemy combatant, they existed in the nowhere gap of the law. This phenomenon was not new, but was a product of all forms of modern nationalism. During the French Revolution, the exterminatory war against the Vendee depended on excepting this region from the Constitution. Thus while the revolutionary-democratic regime touted the rights of man, this same government had the ability to suspend this application. Perhaps surprising to many, the origin of totalitarian regimes of force emerge not from absolutist governments but democratic. It is precisely in the interest to represent The People that some people cease to exist, they no longer fall under the protection of the Constitution. Drawing on the early modern arch-mythologeme - the state of Nature - the Law reveals its own impotence, a threshold to selectively return bodies and spaces into anarchic violence. Yet at the same time, the Law remains supreme for this zone of anarchy is carved out within the law. As Agamben is fond to note, the etymological source of "exception" (ex-ceptio) is capturing something that's is brought outside. At the moment that one is pushed outside the law, one is subject most violently to its power. The secret nihilism of modern democracy is its potential for violent destruction of liberty, property, and ultimately life.
All modern democracies have participated in this development. As the crisis of internal division threaten the existence of the nation-state, the exception is deployed to crush dissent without shattering the legal edifice that supports it. France, Britain, Switzerland, Italy, Germany, all these nations utilized these powers long before the rise of Fascism or National Socialism. Most importantly, the United States had some of the earliest uses of these emergency powers in its own time of civil war. President Lincoln took advantages of vague gaps within the Constitution to use power towards preserving the Union. Lincoln raised an army of seventy-five thousand without the consent of Congress, he had the General in Chief of the Army suspend Habeas Corpus wherever deemed necessary, he censored the mail, and authorized arrest for treasonous actions. In the name of The People, the Constitution's own provisions were set aside for a strong executive to drive reunion between North and South. There was now a precedent that the executive was determined the exception. While this crisis withered, President Woodrow Wilson revived these powers for the needs of World War One. Unlike Lincoln, who acted on his own authority, Wilson asked Congress to grant these emergency powers. This formed a far more pernicious form of exception, where a constitutional dictatorship (as Lincoln was) gave way to passive legislature passing exceptional laws. The crisis could be mute (as World War One was for most Americans), even as Constitutional protections vanished. Censorship, detention for unpatriotic actions, coordinated government price-fixing for the Army, all of these excepted the Constitution's limits for Wilson's war for democracy. In the name of the law (for Wilson was still legally chief executive) the law was abrogated. The Constitution became a sickening mask to disguise the anarchy at the heart of the nation-state.
The People must be preserved, even if this meant individual citizens ceased as members of The People. President Franklin D. Roosevelt only continued the spirit of Wilson. However, unlike Wilson, FDR seized emergency powers out of an economic emergency, not a military one. This was the not-so-secret core of the New Deal:
"It is well not to forget that, from the constitutional standpoint, the New Deal was realized by delegating to the president (through a series of statues culminating in the National Recovery Act of June 16, 1933) an unlimited power to regulate and control every aspect of the economic life of the country - a fact that is in perfect conformity with the already mentioned parallels between military and economic emergencies that characterizes the politics of the twentieth century." (22)
America's "Fascist" moment came in the form of Dr. New Deal, even if the full expression did not come about. The efforts to gain complete mastery over management and labor, to dictate the economy, came not from a radical seizure of power. A favorable Congress simply voted the executive these powers. The order to place Japanese-Americans in concentration camps came not from an army seizure of the government. The Supreme Court, those ephors of the legitimacy of the law, simply threw aside the clear provisions in the Constitution. There's nothing substantially different from Mussolini, who remained in the legal office of Prime Minister and President of the Council of Ministers. While controversial and perhaps disturbing, it should not strain the imagination to expect that, if Japan had warships landing marines in Washington or California, the concentration camps would have rapidly become extermination camps. Considered as un-American and insect like, the desire to square the circle of nationalism (America for Americans) could easily have led to results of a similar caliber. The Holocaust became a ex-post facto justification for the myth of America's virtue in a war where brutality existed on all sides. Whether the camps at home, or the bombing campaigns against civilians abroad, the Allies deployed tactics that did not differ substantially from the Axis powers. FDR became valorized, even as his government in no way differed from Fascist parties acting in similar ways to preserve the law through its suspension.
However, this putting aside of the law is not its destruction or rejection. In Medieval times, the reality of life would imposes itself upon the law to establish a legal fiction. Thus a bishop who was uncanonically ordained, yet had been exercising his office, may be saved through an act of legal fiction. This represented simultaneously the good of the law and its limitations, both caught in a mutual respect. Yet the modern dispensation reverses this trend into increasing catastrophe. An appeal to "common good" or "national security" outside of the law means that what is ultimate is now extra-legal, yet contained within the law. Within the United States Constitution, the Necessary and Proper clause represents this threshold between an older view of constitutionality and its future transformation. The natural law recognition that law exists above and beyond written laws, thus depending on custom and history, gave way to an understanding that this statute meant going beyond law as part of law. While the Medieval may create a juridical fiction to conform law to what appears as outside law (the limits of positive law), the modern now makes what is outside of law as part of the core of law. Many modern constitutions, after the French Revolution, have clauses for the use of exceptional powers. The relationship between nature and law rapidly become to collapse. The State of Nature is not outside the polis, but now at its very heart. Lawlessness is now part of the law. Exceptional laws means all things are included under the power of the law at the precise moment the law does not function. The secret core of the modern nation-state, reaching a zenith in mass democracy, is the anarchy of violence.
Most modern commentators, however, will blame totalitarianism on dictatorship. Dictatorship has distinct forms: commissarial and sovereign. The commissarial dictator (like Lincoln) suspends an already existing constitution in order to preserve it. The sovereign dictator (such as Oliver Cromwell or Vladimir Lenin) aims to create a new state of affairs. In a moment of civil war, the sovereign dictator reconstitutes the entire legal order after falling into the anarchic state of nature. However, the modern state-of-exception represents a blur. Constitutions that have provisions for exceptional laws (as most modern European nation-states do) neither suspend the constitution nor establish a new order. Thus Hitler only utilized the self-excepting power of the Weimar Constitution to suspend it. Throughout the Nazi period, the Weimar Constitution was still in full effect, even in its suspension (which lasted from 1933-1945). The law is radically set aside at the precise moment that its application becomes paramount. In this particular case, the commissarial dictatorship of Chancellor Hitler blurs with the sovereign dictatorship of revolutionary violence (assorted officials and soldiers carrying out the Fuhrer's will without any express order). The provisions of the law are completely distinguished from the force of the law, to the point that the justice the law seeks to carry out is frozen as the violence it utilizes become fully unleashed. In contemporary times, it's not simply whether the American president has exceptional laws passed to gain control over the bio-political economy. It's also the enforcement of pandemic protocol from individual police officers, minor officials, and business owners. The distinctions of private property rapidly blur into public ordinance. Mask mandates are carried out without express provisions of law. And in nations like Australia, where police investigated anti-government speech against lockdowns and mandates, as well as impose quarantine camps for the unvaccinated, it's unclear precisely where this force of law emerges. The totalitarian nature of democratic nation-states becomes unleashed precisely in this confusion. At the moment that law is radically separated from the law's violence, jurisprudence and application of the law become entirely confused.
A core legal concept to explain this simultaneous separation and confusion is the Roman concept of Iustitium. Considered a kind of suspension of law, the iustitium represents the photo-negative of dictatorship. The Roman dictator, invested with the full power of law and the temporary suspension of government, had absolute power. However, the iustitium is the complete nullity of the law, it at a standstill, which allows a sovereign violence to take place. The murder of the Gracchi brothers, which the Senate had granted without investing any legal power or office, allowed the appearance of a state of nature. Anyone could kill the Gracchi brothers without repercussion. Agamben's great insight here is that dictatorship is not what defined the National Socialist assumption of the Weimar Republic. The Fuhrerprinzip was not the creation of a legally invested office, even if it was one with absolute power. Scipio Nasica, when he murdered Tiberius Gracchus, executed him "as if he were a consul" even though he was a private citizen. The entirety of private life is now given the sanction of public law, "as if" life itself had been juridicized precisely in the anomic state-of-exception included in the law. It's precisely at this point that Agamben disaggregates analysis of totalitarianism as expansion from the Iustitium:
"If we wanted at all costs to give a name to a human action performed under conditions of anomie, we might say that he who acts during the iustitium neither executes nor transgress the law, but inexecutes [inesgue] it. His actions, in this sense, are mere facts, the appraisal of which, once the iustitium is expired, will depend on the circumstances. But, as long as the iustitium lasts, they will be absolutely undeniable, and the definition of their nature - whether executive or transgressive, and, in the extreme case, whether human, bestial, or divine - will lie beyond the sphere of law." (50)
Here it's a good place to summarize many of the points Agamben has made so far. The state-of-exception emerges from a crisis to set aside the constitution, and its provision, in order to preserve this. In antiquity, the office of dictatorship was a means to accomplish this through a full expression of the law. This office reflected the same concern Medieval jurisprudence had in the legal fiction. Law must not fail to recognize, in its own parameters, the reality that subsists outside of it. Yet modern politics, beginning with the nationalist-democratic revolution of the French Revolution onwards, began to collapse. The reason was the need for a law, increasingly totalizing, to fully absorb the world outside of law. Thus constitutions began to include provisions that recognized the suspension of the law within the law. The United States' Necessary and Proper clause became a means for an internal zone without law, where a president like Wilson or Roosevelt could ask for exceptional powers that theoretically had no end. Everything could be included under the purview of the law because everything could be considered necessary. In the case of the World Wars, exceptional powers came to a conclusion (especially with the untimely death of Roosevelt amid his fourth term). But in theory, this state-of-exception could continue indefinitely. In this period, where the law is neither fulfilled (as in dictatorship) or overthrown (as in a revolution), all actions are neither following the law nor transgressing it. Everything, in fact, may become legal or illegal from a later point of view. But that later point could, in theory, never come.
It's no surprise that the crisis has marked out modern western governments, whether climate change, pandemic, or terrorism. The law becomes entirely formless and empty and every action a floating signifier. It's no surprise Post Modern philosophers, like Derrida, valorize democracy, and in so doing they only intensify the problem. In the state-of-exception, any action may be done "as if" one has the legal capacity, the office or duty, to carry it out. The floating "as if", the formless factical syntax, has all and no meaning, neither following or breaking grammar. Instead, language becomes a source of potential instrumental violence. Any may claim to act in the name of The People to carry out the necessity of the Law, even as that precise definition remains infinitely indeterminate. At the very moment of the Law's excessive triumph, its ability to categorize and defend all things, becomes the very moment of its collapse. The fullest extent of legal positivism becomes violent anarchy.
A solution to this problem could appear to be absolutism. A true dictator or caesar could then utilize his sovereign power to constitute a new order. However, it's the failure of dictatorship that precisely creates the state-of-exception. In the examination of the German Trauerspiel - tragic plays of Renaissance princes ensured within the Machiavellian politics of court - Benjamin exposed that the Baroque sovereign was the site of inaction. Kings, imbued with absolute divine authority, were incapable of deciding. Between power and application, an insuperable void emerged. The sovereign possessed divine authority, yet he too was a creature. He could do anything, but could not carry it out. The Law becomes impotent, incapable to determine or be applied, allowing the anarchic zone to open up beneath the prince's feet. Unable to restrain this violence without immanent collapse, the drama revolves around the frozen monarch who destroys his reign the moment he lifts his finger. Such was what took place in England's history, for it was precisely at the moment that Charles I exercised his absolute prerogative that his reign was engulfed into civil war. The entrance of the sovereign into politics was precisely the moment when catastrophe struck. The result was ultimately the neither legal nor illegal execution of Charles Stuart, with subsequent revolutionary violence to install Cromwell as Lord-Protector.
The fundamental problem, which the absolute monarch or dictator seeks to solve, is the inclusion of violence into law. What Benjamin saw so clearly was that violence was always anomic, always lawless. The effort to bring justice and law together, which even the ancients understood as distinct, was the purpose of the law. But what happens when the law becomes the means not to restrain violence, but in the complete inability of law to be applied, unleashes it entirely. This then becomes a mechanism to then inscribe a legal order. Thus the mythos of the commissarial dictator Lincoln is the one who saves the Union and frees the slaves, or the mythos of the sovereign dictator Lenin is the one who brought about the dictatorship of the proletariat. However, what if violence is recognized as something fundamentally alien to law? What if there's no ability to restore an apparatus that allows the justice of the law to carry out the violence of the law? What comes next? For Benjamin, the radical separation allows the restoration (or fulfillment) of the law as justice. Pure violence, a violence that is its own means, that has no intention to found or accomplish, but sheer negativity, deactivates the law. The experience of pure violence, which is violent for violence, unveils its radical disjuncture with any form of justice.
Though Benjamin was an atheistic Jew, his thought runs parallel with the messianic politics of St. Paul. It was the pure violence upon the Crucified Christ - the purity of act unveiled behind all justifications offered from Pharisees, Pilate, and Caiaphas - that exposed the utter violence of violence. Or, in Pauline terms, the utter sinfulness of sin. For Benjamin, drawing on the work of Franz Kafka, this act of pure violence opens the threshold for pure justice. The form of the law now may take up a new use. For precisely at the moment the law deactivates ("nailing it to [Christ's] cross"; Colossians 2:14), it becomes fulfilled (Galatians 5:14). The end of the law is entirely means, to be studied and poured over to learn justice. The letter of the law, with its punishments and threats, is not abolished, but completed. The pure violence of the cross - the death of Israel's Christ - opens the threshold of pure righteousness, a law engraved into the heart. It's not necessary to believe in the historicity of the Gospels (as Benjamin likely did not) to understand the point. The crucifixion of Christ ends the mythologic conjunction between means and ends. Violence no longer establishes an order of justice, remaining buried within it. Rather, it is completely exiled so law may now serve a greater purpose for a new kind of politics.
It's worth quoting Agamben extensively here:
"The decisive point here is that the law - no longer practiced, but studied - is not justice, but only the gate that leads to it. What opens a passage towards justice is not the erasure of law, but its deactivation and inactivity [inoperosita] - that is, another use of the law. This is precisely what the force-of-law (which keeps the law working [in opera] beyond its formal suspension) seeks to prevent. Kafka's characters - and this is why they interest us - have to do with the spectral figure of the law in the state of exception; they seek, each one following his or her own strategy, to 'study' and deactivate it, to 'play with it.
One day humanity will play with law just as children play with disused objects, not in order to restore them to their canonical use but to free them from it for good. What is found after the law is not a more proper and original use value that precedes the law, but a new use that is born only after it. And use, which has been contaminated by law, must also be freed from its own value. This liberation is the task of study, or of play. And this studious play is the passage that allows us to arrive at that justice that one of Benjamin's posthumous fragments defines as a state of the world in which the world appears as a good that absolutely cannot be appropriated or made juridical" (64)
Agamben juxtaposes a different kind of anarchy, an anarchy of justice as an escape from the contradictions of politics. This scheme may sound utopic, an expectation that violence could be exiled from civilization and the law simply be a form of playful study (though as Agamben is clear to point out that games can be very serious). However, it is the positing of a new politics from the point of view that we cannot go back. To juxtapose this distinction, it's the mirror image of how often self-described libertarians cannot cease in their addiction to the state. They become highly litigious, militant, and supportive of the "as if" in mass democracy. It's no surprise that famous twitch-streamers, self-described libertarian-socialists, never cease to support statist redistribution through the NGO complex or global empire through extra-state organizations like NATO. The UN offers a bizarre Star Trek fantasy of unified total government under an organization that has limited legal existence above or aside the state. Their anti-statism is precisely a desire to govern and be governed. The "as if" of unexecuted efforts realizes their desire to be police. The destruction of the state would be unlimited government and policing. The sovereign citizen would become the sovereign cop. This politics has increasingly marked out the civil war conditions of Ukraine and threatens to become the norm throughout the Western world.
A new politics, one that does not include violence, may in fact be visible in the convictions of other libertarians. An anti-statism that does not result in unlimited governance is one that does not link violence to ends. An effort to mark out property, one that does not depend upon the law of possession, but on use recognized in the polis, is one that clear the way for every man to sit under his own fig tree. This messianic concern has deeper significance of a soul set free from the accusations of the law - such as in Francis of Assisi or Martin Luther telling the devil to eat shit - but it's also manifest in the existence of every such thing as it is. My livelihood is tied up with my using it, not an absolute claim of ownership but from it being in my hand. A new politics that respects the flow of goods, the given realities of property, and a state that no longer seeks to govern, but seek justice, is perhaps possible. It is unclear how such a civilization may come about, but where dictatorial intervention seems only to advance this modern confusion, and the past becomes inextricably lost, it is worth trying.
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