Book Review

 

Giorgio Agamben, State of Exception, Palo Alto: Stanford University Press. 2005. pp 88. Trans. Kevin Attell (Stato di eccezione. Torino: Bollati Borighieri. 2003).

 

Working Draft: To be Published in I-CON: The International Journal of Constitutional Law (2005).

 

Reviewed by Vik Kanwar

Related...

 

Review of Karl-Heinz Ladeur’s edited volume Public Governance in the Age of Globalization (2004)

 

Review of David Kennedy’s The Dark Sides of Virtue: Reassessing International Humanitarianism(2004)

 

 

Introduction 

 

                Last year, to protest certain new security measures applied to foreign nationals entering the United States, Italian philosopher Giorgio Agamben wrote in the French newpaper Le Monde that he would refuse to travel to the U.S. to assume a Visiting Professorship at New York University.[1]  While as a citizen of an EU country Agamben would have likely been exempted from these measures, he viewed his gesture as a form of solidarity against the routinization of certain techniques of verification which recalled the “banality of evil” undergirding the Holocaust. Whatever the response to Agamben’s “refusal” in Europe (where philosophers are considered important public figures), in the United States, any comparison of simple fingerprinting to concentration camps only led the media to report his gesture as farcical, even offensive, and many Anglo-American academic colleagues to dismiss this incident as yet another example of a “paranoid” style of thought and irresponsible political posturing typical of contemporary continental philosophers. Whether or not these reactions would only be confirmed by a deeper consideration of the issues at hand, readers of Agamben’s past work will immediately recognize the continuity of his gesture with earlier theoretical claims. Agamben has long argued, in a formulation best distilled in his book Homo Sacer: Sovereign Power and Bare Life (2000),[2] that “the camp”– the concentration camp as much as the refugee camp— is the paradigm of political modernity insofar as legal categories and the idea of sovereignty have served as a justification for abondoning ‘enemy bodies’to zones outside strict legality. While that book’s conceptual apparatus is all too reminiscent of quirky Heideggerian readings of Greek politics, and he sometimes leans on tendentious readings of Foucault, Benjamin, Arendt, and Schmitt,[3]  Agamben’s thesis, when examined closely, is no more “paranoid” than the more redemptive works of Primo Levi or Judith Shklar. Beneath his evasive ethics is yet another post-Holocaust “liberalism of fear.”  In my view, Agamben can be read as a philosopher of deep ethical concern and originality, by even the most positivistic of Anglo-American scholars, but to read him charitably, one must start by getting used to his signature rhetorical devices of hyperbole, paradox, and “indistinctions”— situations where conceptual opposites (security and insecurity, totalitarianism and civil war) are actually contained within each other. It is helpful to approach a number of these claims as “thought experiments.” Moreover, perhaps more than any other concern of legal theory, the discussion of states of exception is an area of inquiry where these discursive vices can actually be seen as virtues: the language of indistinction and undecidibility is often descriptively appropriate. In Agamben's new book, State of Exception, a sequel to Homo Sacer, he draws explicitly upon lectures he has delivered in New York and elsewhere in the years since 9/11, repeating the central themes of his past work and transposing it to a different key. Here, rather than speaking of “the camp,” he argues that “the state of exception” is a primal form of modern government. While innumerable debates and insights can be drawn from this slim book of 88 pages,[4] I will limit this review to three purposes: (1) to discuss Agamben's historical account of the state of exception, including his most controversial claim, finding a basis for the state of exception not in the Roman dictatorship, but in an obscure public ritual known as “iustitium,” (2) to draw attention to recent constitutional theory that refutes Agamben's statement that the state of exception (even as he re-defines it) has been ignored as a “question of public law,” and finally (3) to note the curious absence of Agamben’s distinctive theories of “spaces of exception” which had been productively developed in earlier works, but which are muted here in service of a larger ethical thesis. For Agamben, the vulnerability of “others” in states of exception reveals a more general fragility of rights discourse; the distinctions between territorial sovereignty and de-territorialized punishment, between citizen and non-citizen, are at some point bound to disappear, and we will eventually confront “exceptional” measures as the “new normal.” Yet Agamben’s account suffers from an insufficient engagement with the public law (“constitutionalist”) literature that actually exists.   

 

1. Rewriting the History of the State of Exception

 

                Conventional historiography identifies the Roman Dictatorship as, if not the original, then certainly the most influential model for subsequent attempts to establish formal emergency powers (“states of emergency” or “states of exception”). The importance of this model of emergency has only increased over time. In the history of Western political theory it generated important debates between “republican” partisans (Machiavelli, Rousseau) and “liberal” opponents (Locke, Montesquieu, Constant) of formalized emergency powers. In the last century, it provided a point of departure for both Clinton Rossiter and Carl Schmitt in their accounts of states of emergency. Thus Agamben is intentionally provocative in seeking to redefine the state of exception by abandoning its origin in the magistracy of the dictatorship, and relocating its genealogy in the Roman public mourning ritual known as iustitium (“standstill”).[5] The Roman Dictatorship is meant to signify certain republican procedural ideals: the dictator may not declare the emergency, he has no power to legislate, and he is subject to a strict time limit.[6] The iustitium is rhetorically the opposite: a situation where all legal order comes to a standstill. The move from a specific procedurally circumscribed authorization to an informal suspension corresponds to the conceptual shift from “the exception” understood as an alternative rule to “the exception” as a gap or void in the law. What seems strange is that  Agamben continues to  emphasize a strong dichotomy between formalism and contingency, even when he goes on to couple the “total gap” of the iustitium to an institutional (relatively informal) mechanism of emergency rule. This is the the later Roman Republic institution of the senatus consultum ultimum where the senate advised and permitted a consul to use whatever means necessary to defend the republic from a grave danger. However, both Agamben’s historical description of the senatus consultum and its suitability as a metaphor for “exception-as-void” are defective. Even if the form of declaration is relatively informal, it would not be correct to identify the senatus consultum ultimum as a legal void. In some ways, the consul, subject to ex post facto review, was more constrained than the dictator.[7]  In any case, the contrast (essentially between the temporary creation of a new magistrate and the temporary suspension of laws constraining an existing magistrate) is overdrawn.

                Why does Agamben insist on replacing the Dictatorship with another general model? In truth, the early Roman Dictatorship is just as good or bad a model for modern states of emergency as the senatus consultum. A helpful study by Arthur Kaplan listing and explaining all the Roman dictatorships and senatus consulta between 501 and 202 B.C. demonstrates how neither totally captures the later diversity in emergency models.[8] Schematically, the dictatorship may have more in common with the French tradition of the state of siege, whereas the senatus consultum more closely resembles the English tradition of martial law. Neither, however, provides a comprehensive general model. The real reason for the shift is that Agamben is carrying over a peculiar ambivalence from Homo Sacer. His dual emphasis on the “iustitium/ senatus consultum" in State of Exception is intentionally confusing because he couples them to accommodate two contradictory impulses. The first impulse is to romanticize the "gap" of the iustitium in the same way he sometimes romanticized “bare life” as an irreducible and original form of life in the earlier book.[9]  The second impulse is to identify the same “gap” as simultaneously terrifying, as with the kind of contingency that led to “perpetual dictatorship” in the later Roman Empire. which is for modern states of emergency as the senatus consultum, he doesn’t find in the Dictatorship the qualities of simultaneity and contradiction that he wants to foreground.

                Not surprisingly the argument does little to unsettle the subsequent history of emergency powers.  Indeed, whatever the proper genealogy of the state of exception, and whatever modern implications we are meant to draw, Agamben’s subsequent historical examples are thoroughly conventional. Though Agamben means to distinguish his “state of exception” from “states of emergency” and other “merely juridical” constructions, his examples are practically identical to with Rossiter or Reinach’s surveys of emergency powers in Western Europe and the United States (pp. 11-22). Aside from a discussion of a little-known 1914 emergency decree defending Swiss neutrality, Agamben’s examples are canonical: France,[10]  Germany,[11] Italy,[12] Britain,[13] and the United States.[14] Agamben also correctly notes the “legislative turn” in these countries: “a continuing tendency in all of the Western democracies, the declaration of the state of exception has gradually been replaced by an unprecedented generalization of the paradigm of security as the normal technique of government.” (p. 11). As with his discussion of the iusitutium and senatus consultum, Agamben tends to confuse or conflate emergency institutions that are only relatively informal with total gaps or suspensions. Thus his attempt to align the legislative “generalization” of security with a legal “void” is unconvincing. If the reader does not accept Agamben’s philosophical re-orientation, the historical contribution to contemporary debates will seem rather modest.

 

2. Agamben’s Oblivion of Constitutional Theory

 

                Agamben begins the book with the unsustainable claim that “there is still no theory of the state of exception in public law, and jurists and theorists of public law seem to regard the problem more as a queastio facti than a genuine juridical problem” (p. 1). Yet his own concerns are familiar, even pervasive, in recent public law theory [“constitutionalism”].[15] While few constitutionalists would share Agamben’s underlying conception of “the exception” as a “void,” his general approach resembles standard accounts, which (1) dichotomize emergency powers into constitutional or extra-constitutional measures, before going on to (2) point out the practical inter-penetration of these two options. Nearly every recent account from the mainstream constitutional theory has leaned on traditional dichotomies (formalism/ contingency, republican/ liberal, monism/ dualism) only to transcend them.[16]

                As a descriptive matter, the insufficiency of traditional dichotomies is evidenced by two features of modern emergency measures: (1) an increasingly  legislative character, and (2) selective targeting. First, as Agamben noted of modern western democracies, but which is now taking hold elsewhere, emergency regimes tend to deal with threats through “special laws” rather than constitutional provisions or ad hoc decrees. The threat of permanence posed by emergency legislation is anathema to both the republican insistence on carefully drawn temporariness and the liberal critique of contamination. Thus, far from treating it as a queastio facti, constitutionalists have been forced to entirely reconceptualize states of emergency. It is true that constitutional theorists are generally pragmatic commentators on institutional design. As Jack Balkin has said “institutions have inherent incentives to try to increase their authority while decreasing their accountability.”[17] For constitutionalists, then, the “juridical problem” is the concern that temporary measures should not become “business as usual.” Agamben would agree, but he prefers to phrase the problem not pragmatically but ontologically. For him, the generalization of temporary measures reveals an essential vanishing point between law and politics. By refusing to engage with institutional responses, Agamben comes close to saying it is law itself that is the “genuine juridical problem.” Constitutionalists will find this unsatisfying. But there are other places where Agamben’s theories anticipate unresolved challenges to constitutional theory. This is the case with the “selectivity” of modern emergency powers, which are increasingly targeted at particular populations. Selective targeting is an alternative to wholesale emergency measures which would affect the entire constitutional order. Constitutional scholars such as Geoffery Stone and David Cole have described how since the terrorist attacks of September 2001, the fundamental structure of U.S. immigration policy has allowed the rights of non-citizens to be “balanced” against the security of citizens, drawing an already vulnerable population into an invidious distinction and potentially a zero-sum relation.[18] Despite their normative dissonance, the arbitrary detentions and other apparent suspensions of due process standards that followed should have surprised no one. Under the cover of plenary power and other atavistic expressions of sovereignty, the selective targeting of non-citizens poses a continuing problem for those whose basic material is the vocabulary of rights. If it paid more attention to legal institutions, (e.g., immigration law or international law) Agamben’s work could be taken to suggest that the shift from “rights” to “security” in the bodies of “others” exposes current constitutional norms as under-inclusive of a fuller set of values. Constitutionalists have not reached any kind of consensus on these issues, but that is not the same as remaining silent. The central issue that has evaded consensus, whether states of exception should be regulated by law or left unregulated, has generated a great deal of legal writing, and Agamben’s account gets us no closer to a resolution of this debate.

 

3. States and Spaces of Exception

 

                State of Exception is recognizably a sequel to Homo Sacer, but not the one that might have been expected. Since the subject of the earlier book was the abandonment of “enemy bodies” to spaces of anomy, Agamben’s could have appropriately extended the themes of Homo Sacer to the indefinite detentions of enemy-aliens in Guantanamo Bay. Judith Butler in  her recent book Precarious Life has already drawn on Agamben to make this contribution explicit.[19] In Agamben’s past work one already sees the potential refinement of the typology of emergency beyond national, territorial or even selective emergency powers, to include extraterritorial emergency powers, which reveal a genuine blindspot of constitutional discourse.[20] Other scholars have also confirmed, as a descriptive matter, the similiarities between refugee camps and detention camps. Michel Agier, an anthropologist, and Francoise Bouichet-Saulnier legal counsel of the humanitarian NGO Medicines Sans Frontiers have observed ad hoc power relations in different provisional spaces—“prison camps, refugee detention camps, waiting areas in airports, transit centers near borders” — while documenting the internal life of refugee camps.[21] Just as these “spaces of exception”[22] have become salient, Agamben has abandoned a rigorous discussion of these  issues.

                While a more detailed theory of “spaces of exception” might have been conceptually satisfying, Agamben downplays this aspect in favor of conveying a more general theory of insecurity, and concludes with some vague ethical gestures. If the problem were merely the privileging of “citizens’ rights” over “human rights”, this could be remedied by enforcing international human rights treaties, or extending anti-discrimination obligations in constitutional law. However, Agamben draws a more extreme conclusion. The situation of non-citizens and refugees actually reveals the underlying situation of all political subjects. When in a state of exception politics becomes indistinguishable from the logic of war, we are all objects of “decision” whose rights are beside the point. Agamben repeats this claim often, but never as a positive case for the expansion of rights, or the formal delimitation of emergency measures. Instead, he builds a case for solidarity around the theme of common insecurity. In this sense, Agamben’s project is a radicalization of Shklar’s “liberalism of fear”, offering an ethical sensibility rather than a normative theory. In the end, as with his own protest against U.S. security policy, his argument is minimal but ethically compelling: we must abandon the expectation that security can be achieved by making others insecure.

 

 

 

 


[1] Agamben was specifically protesting the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program, a policy mandating fingerprinting and photographing, which went into effect Jan. 5, 2004. Less than a week later, Agamben announced the cancellation of his visit in an op-ed for Le Monde entitled Non au tatouage biopolitique (“No to Bio-Political Tattooing”). Although there were brief write-ups in many U.S. papers, the “Agamben Affair” was discussed more intensely in the campus newspaper at NYU, which opposed the US-VISIT policy, but took an editorial position that the philosopher wasted the opportunity to come to the US to educate the public about the policy. Nils I. Palsson, Tougher times for visa holders, In defiance, noted scholar cancels visit, Washington Square News. January 26, 2004 Website archived at http://www.nyunews.com/news/features/6559.html (Last checked March 2, 2005).

[2] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life. Trans. Daniel Heller-Roazen. Stanford: Stanford UP, 1998.

[3] For a more focused reading of  these same four thinkers on virtually the same issues, see Beatrice Hanssen, Critique of Violence (1999).

[4] In this review, I will discuss only the two chapters posing historical and conceptual theses.  The remaining chapters, which more resemble literary criticism, include a rereading of Water Benjamin’s work on the permanent state of emergency, the dossier of a half-imaginary intellectual debate between Benjamin and Carl Schmitt, and a philological discussion of the terms “potestas” and “auctoritas.”

[5] Here Agamben follows Adolphe Nissen, Das Iustitium (1877).

[6] Republicanism is typically formalist on the issues of declaration, duration, conduct, control, and termination of emergencies. John Ferejohn and Pasquale Pasquino, The Law of The Exception: A Typology of Emergency Powers, 2 Int J Constitutional Law 210, 212 (2004).

[7] For example, both the consuls Opimius (121 B.C.) and Cicero 63 B.C., were charged ex post facto with violations of Roman due process after acting under the senatus consultum ultimum. Opimius, was acquitted; Cicero was convicted. Nomi Claire Lazar. _The Ethics of Emergency Powers in Liberal
Democracies_ Doctoral Dissertation, Yale University, 2005. p. 187ff.

[8] Arthur Kaplan, Dictatorships and “Ultimate” Decrees in the Early Roman Republic 501-202 B.C. New York: Revisionist Press, 1977.

[9] For Agamben the insistence in a shift to a “void” holds great strategic importance. It is Agamben’s romantic belief, following Walter Benjamin, that there is a “true state of exception” that we must bring about. In effect, Agamben is working backwards from a reading of Benjamin’s dictum and he thinks he finds in the senatus consultum a precedent for the state of exception as a period of anomy. See Walter Benjamin, Theses on the Philosophy of History, in Illuminations 253-264. Trans. Harry Zohn. Ed. Hannah Arendt. (New York: Schocken Books, 1969). 

[10] Agamben’s examples of post-Revolutionary French emergency provisions and situations include a number under rubric of “states of seige”: the Constituent Assembly’s decree of July 8, 1791, the Directorial law of August 27, 1797, Napoleon's decree of December 24, 1811; Article 14 of the Charte of 1814; the Constitution of November 4, 1848; the law of August 9, 1849; the Constitution of January 1852; a long state of seige that covered WWI from August 2, 1914 until October 12, 1919; and the Constitutional Act of July 11, 1940. The most recent constituional emergency provision is Article 16 of the current Constitution ("…when the institutions of the Republic, the independence of the Nation, the integrity of its territory, or the execution of its international commitments are seriously and immediately threatened and the regular functioning of the constitutional public powers is interrupted") which was last used in April 1961, by De Gaulle during the Algerian crisis.

[11] Agamben’s discussion of Germany revolves around the usual controvesies over Germany Article 48 of the Weimar Constitution, which was used successfully on more than two hundred and fifty occasions between 1919 and 1933, but also had a role in Hitler’s rise to power. He also discusses Article 68 of the Bismarckian Constitution, and the Constitution of the Federal Republic (1950), which did not contain an emergency provision but was amended on June 24, 1968, to include a “state of internal necessity,” (innere Notstand) explicitly charged with defending the “liberal-democratic constitution.”

[12] Italy’s expereince with emergency measures goes back to the Roman examples. In more recent governments, states of siege were declared in Palermo and the Sicilian provinces in 1862 and 1866, in Naples in 1862, in Sicily and Lunigiana in 1894, and in Naples and Milan in 1898. Neither the Albertine Statute nor the current Republican Constitution mention emergency powers, but Agamben sees in Italy’s practice of “law-decrees” a forerunner to the legislative trend in emergency measures. Extraordinary anti-terrorist decrees have notoriously been codified into ordinary law, including the so-called “Moro Law” which began as a law-decree on March 28, 1978, and became law on May 21 1978.

[13] England’s traditions of emergency powers include martial law, which was intended for times of war, and various legislative extensions of this idea, including Defence of the Realm Act of August 4, 1914 (DORA) during World War I, and in the context of econimic unrest rather than military conflict, the Emergency Powers Act of October 29, 1920.

[14] Agamben’s discussion of American emergency measures begins with the unresolved power to suspend the privilege of the Writ of Habeas Corpus, which are formally allocated by Article 1 to Congress, but which overlap with the Article 2 powers of the President. Between April 15 1861, Lincoln acted as a unilaterally, until his actions were approved by Congress in a special session on July 4. During World War I President Woodrow Wilson delegated arguably broader powers under the Espionage Act of June 1917 and the Overman Act of May 1918. In 1933, Franklin D. Roosevelt the New Deal statutes culminating in the National Recovery Act of June 16, 1933. World War Two’s most notorious emergency measure occurred 1942, internment of seventy thousand American citizens of Japanese descent. Finally, some discussion is given to President Bush's “war on terror.”  

[15] The current constitutional literature on states of emergency is vast. To take only the example of this journal, there was an issue published last year on “Emergency Powers and Constitutionalism” Int J Constitutional Law 2: 207-209 (2004), which included the following articles on public law: John Ferejohn and Pasquale Pasquino, The Law Of The Exception: A Typology Of Emergency Powers, Int J Constitutional Law 2004 2: 210-239;  Jon Elster, Comments on the paper by Ferejohn and Pasquino Int J.Constitutional Law 2004 2: 240-243;  David Dyzenhaus, Intimations of legality amid the clash of arms, Int J Constitutional Law 2004 2: 244-271; Radhika Coomaraswamy and Charmaine de los Reyes, Rule by emergency: Sri Lanka's postcolonial constitutional experience, Int J Constitutional Law 2004 2: 272-295; Samuel Issacharoff and Richard H. Pildes, Emergency contexts without emergency powers: The United States' constitutional approach to rights during wartime, Int J Constitutional Law 2004 2: 296-333; Geoffrey R. Stone, Free speech in World War II: "When are you going to indict the seditionists?" Int J Constitutional Law 2004 2: 334-367; Vicki C. Jackson, Proconstitutional behavior, political actors, and independent courts: A comment on Geoffrey Stone's paper, Int J Constitutional Law 2004 2: 368-379; Dominic McGoldrick, The interface between public emergency powers and international law, Int J Constitutional Law 2004 2: 380-429 (2004).

[16] Again, “formalist” theories are identified with the republican tradition which places emergency measures within the law and “contingent” theories identified the liberal tradition which places emergency measures outside the law. The interpenetration has been captured in typologies in constitutional writings, including John Ferejohn and Pasquale Pasquino, The Law of The Exception: A Typology of Emergency Powers, 2 Int J Constitutional Law 210-239 (2004); Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 Yale L.J. 1011 (2003); Gabriel L. Negretto & Jose Antonio Aguilar Rivera, Liberalism and Emergency Powers in Latin America: Reflections on Carl Schmitt and the Theory of Constitutional Dictatorship, 21 Cardozo L. Rev. 1797 (2000).

[17] Jack Balkin, Commentary: The Truth About our Instituitons, The Responsive Community 12(4) (2002) 92.

[18] Geoffrey Stone, “Introductory lecture on the Supreme Court in previous periods of national emergency.”  Silverman Lecture Series, Supreme Court Historical Society (October 9, 2002). Quotation from page 24 of working paper. The U.S. Department of Justice has dramatized the exclusionary function of citizenship, evoking an undefined “emergency” to use immigration law to avoid due process standards and subject non-citizens to arbitrary detention. In those circumstances, “we” are making a decision to sacrifice “their” rights—not a very prudent way to balance the competing interests.” Similarly, Professor David Cole has commented, “[b]ecause non-citizens have no vote, and thus no direct voice in the democratic process, they are a particularly vulnerable minority.” (David Cole, Enemy Aliens).

[19] Judith Butler, Precarious Life: The Powers of Mourning and Violence. New York: Routledge, 2004. Even more than Agamben, Butler emphasizes the selectivity of measures that reduce certain groups, and not all political subjects, to “bare life” by excluding them from protection under international human rights laws or the Geneva convention.

[20] Michael Ignatieff, The Lesser Evil (Princeton University Press, 2004) at 25  describes three forms of states of emergency: national, territorial, and selective.

[21] Michel Agier and Francoise Bouichet-Saulnier, Humanitarian Spaces: Spaces of Exception, in Fabrice Weissman, In The Shadow of “Just Wars”: Violence, Politics and Humanitarian Action  297, 303 (Ithaca, NY: Cornell University Press, 2004).

[22] Id. at 300. (“Created as emergency solutions, the camps gradually come to constitute the framework  of daily life for their ‘inhabitants’ over the course of long, very long years, or even  decades. The refugees, pawns in the hands of time and politics, then find themselves  permanent residents of these spaces of exception.”).