Agamben, Giorgio. 2005. State of Exception. Chicago: University of Chicago Press.
Agamben explores how the state of exception, building from Schmitt as the suspension of law for the preservation of the juridical order, produces and is indeed predicated on the blurring of or the indistinction between legal and illegal, public and private, state and law, war and peace, potestas and auctoritas, law and violence, life and norm, criminal and combatant, the political and the juridical (etc.). In some places of the text, he shows how exception productively articulates and/or disarticulates linkages between these seemingly oppositional terms. “In truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside [of the juridical order] do not exclude each other but rather blur with each other” (23).
Writing that “the state of exception is not a special kind of law (like the law of war); rather, in so far as it is a suspension of the juridical order itself, it defines law’s threshold or limit concept” (4), Agamben is trying to theorize how the state of exception can be both in/out of the juridical order, as Schmitt himself posed, but didn’t really explain. Agamben also argues that the state of exception has increasingly become the principal paradigm of government for states since World War I, reaching new heights with George W. Bush’s U.S. presidency.
In the past an extant situation made the exception necessary post-facto, but “the modern state of exception is instead an attempt to include the exception itself within the juridical order by creating a zone of indistinction in which fact and law coincide” (26). A threshold of undecidability is produced when fact and law fade into each other (29). The state of exception is void of law; it is “an anomic space in which what is at stake is a force of law without law” (force-of-law). And here is his departure from Schmitt, because the German jurist retained a notion of the state of exception within a juridical context, whereas Agamben sees a “space without law” (50-51). I’m not really sure what to make of this claim other than trying to think about and understand what it’s doing for his argument, which I think I get an inkling of in the discussion of the debates between Walter Benjamin and Schmitt.
Like Benjamin’s notion of “pure violence” as “pure means” as a force that is neither law-making nor law-preserving, Agamben wants to think about law that is in some way pure—not “pure” in the colloquial sense, but in the relative sense as defined by an externality. “Pure violence” is outside the law for Benjamin; Agamben wants to do the same for law.
His project centers on trying to dissolve the relation between law and violence, which Benjamin did from the standpoint of violence. The biopolitical stakes of this unhinging of life from law are paramount: “Indeed, the state of exception has today reached its maximum worldwide development. The normative aspect of law can thus be obliterated and contradicted with impunity by a governmental violence that—while ignoring international law externally and producing a permanent state of exception internally— nevertheless still claims to be applying the law” (87).
The exception has ceased to be the “threshold that guarantees the articulation between an inside and an outside, or between anomie and the juridical context, by virtue of a law that is in force in its suspension; it is, rather, a zone of absolute indeterminacy between anomie and law, in which [life and law] are caught up in a single catastrophe” (57). Two pages later Agamben reiterates: “at issue in the anomic zone is the relation between violence and law,” which is Benjamin’s constant counter (pure violence) to Schmitt’s attempts to resituate violence within the juridical order.
“The state of exception is the device that must ultimately articulate and hold together the two aspects of the juridico-political machine by instituting a threshold of undecidablity between anomie and nomos, between life and law, between auctoritas and potestas. It is founded on the essential fiction according to which anomie (in the form of auctoritas, living law, or the force of law) is still related to the juridical order and the power to suspend the norm has an immediate hold on life” (86). It’s when the blending in the state of exception, and the exception as the rule, that the juridico-political system becomes a “killing machine” (86).
Agamben suggests that the alternative is to show the artificiality and violence through which law and life have been articulated: “The only truly political action … is that which severs the nexus between violence and law” (88). Such a process, says Agamben, would open the space for a Bejaminian “pure law” (action as pure means).