Implicaciones éticas

To begin with, the institution of the ‘state of exception’, which originated in Roman law and the medieval concept of ‘necessitas’, allows the polity to employ exceptional measures in order to save itself from an imminent threat towards its existence. In its modern form, this institution is directly linked with the rise of the liberal constitutional state. The state of exception guarantees the existence of the Constitution, i.e. the preservation of its opposite. This essential mechanism for the self-preservation of the state and the safeguarding of the legal order is to be seen here as a mechanism for the reproduction of a regime of power, property relations and productive relations.

To this end, the different nuances between the terms ‘exception’, ‘emergency’, and ‘necessity’, which are often used interchangeably to refer to this institution, will be examined.

The major exponent of the term ‘state of exception’ is Giorgio Agamben. His analysis of the state of exception is based on Schmitt’s famous statement that ‘sovereign is he who decides on the exception’. Agamben builds on Schmitt’s analysis in order to examine the relation between law and exception, in what he calls the ‘paradox of sovereignty’. For Agamben, ‘the paradox of sovereignty consists in the fact the sovereign is, at the same time, outside and inside’ (Agamben, 1998, p. 15). The sovereign, having the legal power to suspend the validity of the law, legally places himself outside the law. ‘The rule applies in no longer applying, in withdrawing from it.

According to its etymological root, the exception is truly taken outside (ex-capere), and not simply excluded’ (Agamben, 1998, p. 18).

It makes sense, thus, for Agamben to use the term ‘state of exception’ on the grounds that exception connotes being ‘taken outside’. Schmitt himself had opted to talk of the state of exception, rather than emergency, on the grounds that not all states of emergency constitute a threat to the norm or a challenge to sovereignty (for instance, states of emergency called on the grounds of ‘natural’ catastrophes). This relation of liminality included in the notion of the exception, allows Agamben to claim that ‘modern totalitarianism can be defined as the establishment, by means of the 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’ (Agamben, 2005, p. 2).

Moreover, this state of exception has by now become the rule, resulting, thus, in a new form of government, which knows no law and is bound by no law. This form of government is particularly evident after 9/11 and it is captured in the idea of the ‘camp’, an example of which is the legal blackhole of the Guantanamo bay. This argument is furthered in the most recent text in

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which Agamben criticises what he now calls a ‘security state’. Agamben sees the recent extension of the state of emergency in France as a further step in the radical transformation of the model of the State with which we are familiar. So, even though Agamben uses the term ‘security state’

more than the term ‘state of exception’, it is evident that the latter is the specific characteristic of the former, and that this analysis of the security state is an extension of the argument on the process of transformation of the state form into a ‘permanent state of exception’.

As is evident from the title of Agamben’s essay, the ‘Security State’, this new form of government, has nothing to do with the ‘State of Law’. In other words, we are dealing with a complete separation between the corresponding forms of ‘state of exception’ and ‘rule of law’.

Agamben raises two points in this regard. First, in this new form of government, the term

‘security’ has impregnated political discourse and ‘reasons of security’ have taken the place of what used to be called ‘reasons of State’. So, we have another juxtaposition, between ‘reasons of security’ found in the security state, and ‘reasons of state’ found in the state of law. Furthermore, this juxtaposition is based on the role played by fear and its cultivation by the state. Here, Agamben juxtaposes the classical model of Thomas Hobbes -where the social contract transfers powers to the sovereign, creates the state, and eliminates fear- to the Security State, where this schema is reversed: ‘the State is durably grounded in fear and must, at all cost, maintain it, because it draws from it its essential function and its legitimacy’ (Agamben, 2015).

Therefore, according to Agamben, there is a fundamental difference between Hobbes’s state, which provides security and puts an end to fear, and the Security State which perpetuates the fear which legitimises it. A few questions are automatically raised: First of all, does Hobbes’s state put an end to fear? Is there a fear to begin with, or is this an ideological element with a legitimating function? What does Hobbes’s state secure? What does it secure against? Parallel to these, why does the security state need legitimation? What does it safeguard? If the Security State is not identified with the state of law, what is the relation between them? More importantly, isn’t security at the basis of the liberal ‘State of Law’, as Karl Marx has shown since the ‘Jewish Question’?

This is a point of fundamental importance because Agamben’s complete separation of the Security State from the State of Law is based on the predominance of security in the former as opposed to the latter. But, as Marx has argued, ‘security is the highest social concept of civil society, the concept of police, expressing the fact that the whole of society exists only in order to guarantee to each of its members the preservation of his person, his rights, and his property’

(Marx, 1987, p. 163). Consequently, what is the difference between ‘security reasons’ and ‘raison

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d’état’? What is the content of raison d’état if not the security of property, i.e. the reproduction of a property regime?

Agamben’s complete separation of the ‘state of exception’ from the ‘rule of law’ comes under criticism by Mark Neocleous. Neocleous argues (based on historical evidence gathered from the UK, the USA, Israel, and South Africa and Latin American countries) that emergency powers are far from exceptional; rather, they are an ongoing aspect of normal political rule and have been crucial to the consolidation of capitalist modernity. To criticise, as Agamben does, the use of emergency powers in terms of a suspension of the law is to make the mistake of counterpoising normality and emergency, law and violence. Neocleous opposes this rigid separation as well as the idea of the permanent state of exception which stems from it.

For this reason, he opts for the term ‘state of emergency’ instead of ‘state of exception’, since the state of emergency is what emerges from the rule of law when violence needs to be exercised and the limits of the rule of law overcome. ‘Where ‘emergency’ has this sense of ‘emergent’, exception instead implies a sense of ex capere, that is, of being taken outside. Far from being outside the rule of law, emergency powers emerge from within it. They are thus as important as the rule of law to the political management of the modern state’ (Neocleous, 2006). In this manner, Neocleous’s ‘state of emergency’ reveals the unity of law and exception. ‘Emergency powers do not involve some kind of suspension of law while violence takes place, but are united with law for the exercise of a violence necessary for the permanent refashioning of order’

(Neocleous, 2006).

Furthermore, this unity of law and exception points towards the socio-economic content which determines these different forms. The fact that every constitution contains provisions for emergency rule leads to the conclusion that ‘the ruling class was never going to be so stupid as to produce a constitution that does not allow it to suspend fundamental liberties and rights in the name of emergency’ (Neocleous, 2006). There is, one could argue, a fundamental need of the ruling class which is served by the existence of constitutional emergency powers. The institution of ‘emergency powers’, therefore, objectively functions to reproduce a regime of power relations which safeguard specific social interests.

In addition to this, Neocleous raises a related point, namely that reducing the resistance to emergency measures to a return to legality, i.e. a return to the normal mode of governing through the rule of law, is based on the illusion that law has a life of its own. The rigid juxtaposition of law and exception can be as harmful for a critical analysis of the legal form as the reductivist analysis of the two forms which fails to take into account of the differences and nuances of the

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two. Consequently, it is important to further Neocleous’s analysis against ‘abstracting the rule of law from its origins in class domination and oppression’, while showing, at the same time, what makes this change in form necessary. In doing so, we opt for the third term used to characterise the emergency legislation, i.e. the ‘state of necessity’.

This is done for two main reasons. First, because necessity helps us grasp the continuity of the state’s function and the continuity of law’s legitimating function. In the following sections it will be argued that in the state of emergency the state acts as representing the ‘general will’; it acts in the ‘general interest’. But, this ‘general will’ serves as the legitimating basis not only during exceptional, but also during normal times. Second, the concept of necessity helps us grasp the root of this continuity in the relation of this legitimating function with a regime of property and productive relations whose functioning and reproduction is ensured by this function (whether in normal or exceptional form).

Agamben himself criticises the view which posits the concept of necessity at the foundation of the state of exception (on the basis of the maxim ‘necessitas legem non habet’). According to him, ‘necessity is not a source of law, nor does it properly suspend the law; it merely releases a particular case from the literal application of the norm’ (Agamben, 2005, p. 25). He argues that the ultimate ground of the exception is not necessity, but the principle according to which ‘every law is ordained for the common well-being of men’. So, for Agamben, the state of exception suspends the juridical order as such as it is based on the ‘salus populi’, whereas with necessity it is a question of a particular case.

But is necessity merely a question of a particular case or of the juridical order as such? Of course necessity is not a source of law and it does not suspend the law. On the contrary, it is congenital with law and the state and determines its form. It does not merely release a particular case from the application of the norm; it underlies the norm as a whole; the norm-qua-objective-legal-order is a necessity for the reproduction of the relations of production, for the ‘general interest’, and this general interest lies at the bottom of both norm and exception. Therefore, necessity may not itself be a legal rule, but it lies ‘within’ the rule itself. The metaphysical separation of normality and exceptionality vanishes because necessity lies within the legal rule itself.

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