[here's a fascinating report from Brett Neilson on Agamben's latest 
book, yet to be translated.  Among other things, the report nicely 
illuminates the Schmittian problematic of a 'state of exception' via 
the Schmitt-Benjamin dialogue, pointing out why such a 
juridico-political condition remains useful as an object of critique 
for thinking many current crises in life in the 'global civil 

Giorgio Agamben. Stato di eccezione. Torino: Bollati Borighieri. 2003

Brett Neilson
University of Western Sydney

At a time when Australians face trial before U.S. military tribunals,
asylum seekers languish in camps like Baxter and Nauru, and new
government legislation allows the detention of Australian citizens
themselves, the prose of Giorgio Agamben burns with relevance for
those who live on the southern continent. Stato di eccezione is
Agamben's latest offering, an extension and deepening of Homo sacer
(1995)--of which it announces itself as Volume II, Part 1. Growing
more directly from this earlier text than Quel che resta di Auschwitz
(1998), Volume III of Homo sacer, the book is at once more
historically grounded and more politically audacious. Agamben steps
away from the pessimistic analytic of 'bare life' to recover some of
the redemptive energy that inhabits La communità che viene (1990),
his best-known work among English language readers. Perhaps it is the
force with which emergency powers have gripped the world in the past
two years that lends Stato di eccezione a political intensity that
remains wholly current even as it interrogates Roman republican law
and plummets the ontological depths of early 20th-century thinkers
like Carl Schmitt and Walter Benjamin.

In the opening pages of Stato di eccezione, Agamben announces that
'before the unstoppable progression of what has been identified as a
"global civil war," the state of exception tends ever more to present
itself as the dominant paradigm of government in contemporary
politics.' The reference to 'global civil war' signals an immediate
concern with the current transformations of world order, even as the
text notes that this term first appears in 1961 (both in the work of
Hannah Arendt and Carl Schmitt). Agamben identifies the 'military
order' issued by George W. Bush on 13 November 2001 (subjecting
non-citizens suspected of terrorist activities to indefinite
detention and military tribunals) as the most recent in a line of
emergency measures that open a no-man's-land between the political
and the juridical.

The French état de siège (which finds its origins in the eighteenth
century Revolution), article 48 of the Weimar constitution (mobilized
over 250 times before 1933), the Italian decreto di urgenza (which
became the normal means of governmental legislation following World
War II), the emergency powers of the British parliament (introduced
with the Defence of the Realm Act in 1914), and the capacity of the
U.S. president to issue 'executive orders' (which allowed Lincoln to
suspend to writ of habeas corpus in 1861, Wilson to assume emergency
powers in 1917-18, and F.D. Roosevelt to declare a national emergency
six hours after assuming power in 1933)--all of these attest the
inextricable link between the state of exception and the normal
functioning of the bourgeois democratic state. Far from being a
hallmark of totalitarian rule, the state of exception 'presents
itself as a zone of indetermination between democracy and
absolutism.' Thus even those who argue that emergency powers are
necessary to safeguard democracy, such as Clinton. L.
Rossiter--author of Constitutional Dictatorship: Crisis Government in
the Modern Democracies (1948, must recognize the mutual implication
of the emergency state and absolutist government, noting that 'the
constitutional use of emergency powers is becoming the rule and not
the exception.'

As in Homo sacer, Agamben's argument finds its point of departure in
Carl Schmitt's Political Theology. Schmitt describes the state of
exception as a kind of legal vacuum, a 'suspension of the legal order
in its totality.' But for him, the issue is to ensure a relation, no
matter what type, between the state of emergency and the legal order:
'The state of emergency is always distinguished from anarchy and
chaos and, in the legal sense, there is still order in it, even
through it is not a legal order.' The state of emergency introduces a
zone of anomy into the law, and thus it can be presented as a
doctrine of sovereignty. The sovereign, who proclaims the state of
emergency, remains anchored in the legal order. But precisely because
this decision concerns a nullification of the norm, and consequently,
because the state of emergency represents the control of a space that
is neither external nor internal, 'the sovereign remains exterior to
the normally valid legal order, and nevertheless belongs to it.' In
Stato di eccezione, Agamben works to sever this link between
sovereign power and legal order, revealing an 'essential fiction'
that underlies the push to 'global civil war.' The book thus points
to a 'countermovement' that separates life from law--a force that
'melts that which has been artificially and violently linked.' There
are three main moments to this countermovement.

1. First is Agamben's interpretation of the term 'force-of-law,'
which, as he notes, supplies the title for a 1990 lecture by Jacques
Derrida. For Agamben, it is astounding that, despite the debate
between philosophers and legal theorists occasioned by this lecture,
there has been little analysis of the 'enigmatic formula' that
provides its title. Following article six of the French constitution
of 1791, he finds the term 'force-of-law' to designate the
indestructible character of the law--the supreme value of acts
expressed by an assembly representative of the people (which the
sovereign can neither abrogate nor modify). In the technical sense,
'force-of-law' refers not to the law itself, but to decrees that
have, as the expression goes, 'force-of-law'--decrees that executive
power can be authorized to give, and most notably in the state of
exception. The term identifies a gap between the efficacy of the law
and its formal essence, and this means that acts that do not have the
value of law can acquire the 'force-of-law.' For Agamben, this
separation between law and 'force-of-law' characterizes the state of
exception. In the state of exception, the 'force-of-law' can exist
without law. There is a radical separation between potential and act
as well as a mystical element or fiction that seeks to eliminate this
disconnection. Far from leading back to the legal order, as Schmitt
contends, the state of exception exhibits the 'impossible
conjuncture' between norm and reality, or between the law and its
application. It is a limit zone where logic and practice intermingle
and a pure violence without logos activates an enunciation with no
real referent.

2. To deepen his case against Schmitt, Agamben offers an analysis of
the Roman republican convention of the iustitium--an ancient
precedent for the state of exception. When the Roman senate was
alerted to a situation that seemed to threaten or compromise the
republic, they pronounced a senatus consultum ultimum. This involved
the declaration of a tumultus or a state of emergency whose
consequence was the proclamation of the iustitium. The iustitium
involved not a suspension of the framework of justice but a
suspension of the law itself. Following Adolphe Nissen's Das
Iustitium (1877), Agamben distinguishes the legal void of the
iustitium from the paradigm of dictatorship. Under the Roman
constitution, a dictator was a special type of magistrate selected by
the consuls, whose wide powers were conferred by means of a lex
curiata that defined their scope. In the iustitium, by contrast,
there was no creation of a new magistrate. The powers enjoyed by the
magistrates under the iustitium resulted not from the conferment of a
dictatorial imperium but from the suspension of laws that limited
their actions. Agamben points out that the same is true for modern
emergency powers. It is a mistake to confuse the state of exception
with dictatorship (a fullness of powers or pleromatic state of
law)--and this is, indeed, the limit of Schmitt's analysis. In spite
of the common view, neither Hitler nor Mussolini was a dictator.
Hitler, in particular, was Chancellor of the Reich, legally appointed
by the president. What was so dangerous about the Nazi regime is that
it allowed the Weimar constitution to remain valid, while doubling it
with a secondary and legally non-formalized structure that could only
exist alongside the first by virtue of a generalized state of
emergency. For one reason or another, the existence of such spaces
devoid of law seems so essential to the legal order that the latter
must make every possible effort to assure a relation to the former,
as if the law in order to guarantee its functioning must necessarily
entertain a relation to anomy.

3. In this perspective, Agamben reads the debate on the state of
emergency that pitted Carl Schmitt against Walter Benjamin from 1928
to 1940. Schmitt's influence on Benjamin has always appeared
scandalous, but Agamben attempts to reverse this scandal, suggesting
that Schmitt's theory of sovereignty must be read as response to
Benjamin's 'Critique of Violence.' In this 1921 essay, Benjamin
posits the existence of a 'pure' or 'revolutionary' violence--that
is, violence outside the law, a violence that ruptures the dialectic
between the violence that institutes the law (constituent power) and
the violence that upholds the law (constituted power). Agamben argues
that the state of emergency is the means invented by Schmitt to
respond to this postulation of a pure violence. For Schmitt, there
can be no violence absolutely exterior to the nomos, because
revolutionary violence, once the state of emergency is established,
always finds itself to be included in the law. Benjamin's definitive
response to Schmitt is the famous passage in 'Theses on the
Philosophy of History' where he surmises that 'the "state of
emergency" in which we live is not the exception but the rule.' But
before revisiting those important lines, Agamben detours through
Benjamin's The Origin of German Tragic Drama, which contrasts
Schmitt's theory of sovereign decision with the notion of sovereign
indecision. Far from deciding on the state of exception (and thereby
including it in the legal order), the sovereign in the German tragic
drama aims to avoid such emergency measures (to keep them separate
from the legal order): 'Whereas the modern concept of sovereignty
amounts to a supreme executive power on the part of the prince, the
baroque concept emerges from a discussion of the state of emergency,
and makes it the most important function of the prince to avert
this.' Confronted with the decision to proclaim an emergency, the
sovereign reveals that 'he is almost incapable of making a decision.'
The fracture between sovereign power and the capacity to act thus
becomes impassable. For Benjamin, the state of exception leads not to
the restoration of legal order but to a generalized catastrophe. And
in this catastrophe, the transcendental claims of sovereign power are
vanquished: 'However highly he is enthroned over subject and state,
... [the sovereign] is confined to the world of creation; he is lord
of the creatures, but he remains a creature.'

This figure of generalized catastrophe under a sky void of
transcendental authority haunts Agamben's description of a 'global
civil war' characterized by 'governmental violence that ignores
international law externally and produces a permanent state of
exception internally, while all the time pretending to uphold the
law.' Far from facilitating a return to the 'state of law,' the
current global emergency throws the very concepts of the 'state' and
'law' into question. Today the state of exception has reached its
'maximum planetary unfolding' and manifests itself as an unrestrained
festival in which pure violence is exercised in full freedom. Not
accidentally does the term iustitium, after the fall of the Roman
republic, come to designate the period of public mourning following
the sovereign's death. According to classicist Karl Meuli, anomic
festivals (such as the Roman saturnalia, the charivari, and the
medieval carnival) display a connection with the situations of
suspended law that characterize certain archaic penal institutions.
They thus reveal the anomic drive that lies at the very heart of the
nomos. As Agamben explains, 'in the exhibition of the mournful
character of every festival and the festive character of every
mourning, law and anomy show their distance and, at the same time,
their secret solidarity.' This double movement adds a new level of
disingenuousness to one of the most feted comments of recent
Australian public life--Immigration Minister Phillip Ruddock's
description of the former Lager at Woomera: 'It's not a holiday camp,
nor should it be seen as one.'

For Agamben, the Western political system is founded in the double
movement between two heterogeneous and antithetical elements: nomos
and anomy, legal right and pure violence, the law and the forms of
life whose articulation is guaranteed by the state of emergency. In
opposition to the movement that seeks to maintain the relation
between these elements, he poses a countermovement that seeks to
break the fictional link between violence and the law. He thus
understands contemporary Western culture as a 'field of tensions' in
which two opposing forces clash--one that institutes and imposes, the
other that deactivates and deposes. There can be no hope of
flattening these forces onto indifference, or containing them in the
synthesizing logic of dialectic. But equally it is only possible to
distinguish them by virtue of their articulation in the biopolitical
machine--'bare life is a product of the machine and not something
that pre-exists it.' The task of a radical politics is to break the
link between violence and the law, an action that implies not the
return to an original state but the accession to a new condition.
Stato di eccezione is Agamben's most sustained blueprint of this
politics-to-come, a document that charts an ethical and conceptual
path beyond the state of exception by providing tools to break into
and move through it.

Dr. Brett Neilson
Centre for Cultural Research
University of Western Sydney
Tel: +61-2-4736-0387
Fax: +61-2-4736-0224

Free Trade in the Bermuda Triangle ... and Other Tales of Counterglobalization

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