Therefore, states of exception are by their nature seen as unfortunate but temporary departures from this norm, necessary only for the defence of the system that guarantees the rule of law in the first place. But this circularity is, in fact, an accurate reflection of the relationship between norm and exception.
The rule of law that grants powers to the sovereign includes within those powers the right of the sovereign to decide, in certain circumstances, that the rule of law must be suspended. The declaration of a state of emergency is an essential element in the exercise of sovereign power because of this inseparable relationship between law and exception. Schmitt celebrates this aspect of sovereign power as necessary for ensuring stability in periods of crisis. It is not surprising therefore that Schmitt was to end up as a jurist in the service of the Nazi regime. What is surprising is that at the time he wrote Political Theology , and throughout the s, he was a staunch defender of the liberal-democratic Weimar Republic.
The State of Nature as a Site of Happy Life: On Giorgio Agamben’s Reading of Hobbes | SpringerLink
For in the legal sense, the Nazi state was not the negation of Weimar but its continuation in extremis. Yet the rule of law was suspended by legal means, using powers granted under the constitution. The fact that the path of Nazi power ended in the unique violence of the Holocaust has obscured the extent to which fascist rule could be facilitated by the rule of law.
Of course, the present circumstances are volatile and it is difficult to predict what course things will take. What is different today is the relative stability and consistency that has been maintained over a significant period of time under de facto states of emergency.
Politics, metaphysics, and death
A theory of the state of exception, albeit one outlined in the vaguest of ways, is also found in the work of Walter Benjamin. We must attain to a conception of history that is in keeping with this insight. Like Schmitt, Benjamin identifies the state of emergency as immanent to law. But he goes further by saying that the state of exception has itself become the norm. He is therefore calling attention to the continuity between capitalist democracy and dictatorship, and thus recognises the necessity for transcending law to ensure true liberation. This is something that Agamben too understands and discusses in various ways in Homo Sacer.
Benjamin then makes the distinction between the right to strike in specific circumstances, and that of the general strike, which by its very nature goes beyond the realm of the legal right to withdraw labour into a challenge to the authority of the capitalist state itself. That is, violence used to create a legal entity, for example a revolution, which leads to a new constitution or state; and violence deployed to preserve an existing state such as police violence or a military coup.
In the same way that these two forms of violence are immanent to law, so too are the norm and the state of exception. The idea that law can be counterposed to either violence or the state of exception is redundant. But in his engagement with Benjamin, Agamben once again misses the transformative element. However, in the conclusion to this piece Benjamin does achieve a lucid exposition that falls absolutely within the classical Marxist tradition:.
On the breaking of this cycle maintained by mythic forms of law, on the suspension of law with all the forces on which it depends as they depend on it, finally therefore on the abolition of state power, a new historical epoch is founded. If the rule of myth is broken occasionally in the present age, the coming age is not so unimaginably remote that an attack on law is altogether futile. But if the existence of violence outside the law, as pure immediate violence, is assured, this furnishes proof that revolutionary violence, the highest manifestation of unalloyed violence by man, is possible, and by what means.
It is not. Admittedly, beyond this rather general statement Benjamin becomes rather obscure. Agamben also stands apart from most of the other celebrated critical thinkers of our time in this respect. With Agamben, on the other hand, struggle is almost wholly absent in his work, except occasionally at the level of ideas. He never acknowledges anyone anywhere in Western history struggling from below. Instead we are presented with a history of kings and clerics devising new forms of power, assisted by theologians and philosophers.
The picture we are presented with is of a sovereign power from which there is no discernable means of escape. Why is there this gap in his work?
One possibility that Nina Power suggests is that Agamben has never really shaken off the inheritance of his teacher, the existentialist philosopher Martin Heidegger. Therefore, instead of an ongoing tension between the economic relations in society and the various political and cultural forms that arise out of them, we have instead an analysis of history in which those tensions are absent.
This leads Agamben to portray history as a battle of ideas, but with no clear understanding as to why one side or another should end up victorious. Moreover, absent those tensions, it becomes hard, if not impossible, to see at what point a crisis in the prevailing order can be opened up to allow for a transformative event from below.
This philosophical commitment is also at the heart of his often insightful critique of the hollowness of contemporary mainstream culture and politics. His first attempt at this in The Coming Community is unfortunately marred by an almost impenetrable obscurantism and convoluted phraseology, as well as some postmodernist pretentions that are uncharacteristic of him. It sheds light on a key historical moment in the development of law, and its role in facilitating the growth of capitalist relations.
Agamben opens up a useful discussion of the relationship between property, usage and law. Moreover, he presents St Francis of Assisi and his followers as harbingers of a possible alternative way of life to that governed by law, property and sovereign power. The church had by the Middle Ages developed a system of rules by which service to God should be expressed.
But the Franciscans went a step further by attempting to integrate such rules into life itself. As such there could be no distinction between the life one lived and service to God. This was the model offered by Christ himself whose life and devotion to God were inseparable. The latter is an attempt to impose a universal impersonal authority, whereas the former is a mode of living that is sustained organically by human beings living together.
There is here an interesting parallel with the Russian Marxist Evgeny Pashukanis, who made the distinction between law, a bourgeois concept founded on notions of competing individual rights and ownership, and rules, which served a purely functional mechanism for facilitating social life. The example Pashukanis gave was the distinction between the law governing the various rights and responsibilities involved in the ownership of the railways, and rules that governed the timetable.
This aspect of the legal form is one way in which the distinction between exchange value and use value under capitalism is given its juridical and ideological underpinning. Agamben offers an interesting insight here into how such a reification of things was resisted in a period that saw the beginning of the construction of the apparatus that would support capitalist relations.
Although he ignores this context, which would underpin his historiography, his analysis of this ideological development in fact supports a historical materialist understanding of the development of law. The timing of this struggle by the Franciscans is important. This development within the church was driven by the growth of trade in Europe, which in turn gave rise to the legal form necessary to regulate it. Popular custom was being replaced by bourgeois law. In order to achieve a life that was focused solely and absolutely on the worship of God, the Franciscans had to renounce all claims to property or possession that could embroil them in legal categories of ownership.
And it was on this point that the canon lawyers launched a relentless but sophisticated attack on this core of Franciscanism. We hear a similar sort of argument today: without law, the necessary guarantees for each of us to have possession, and the respect thereof, for the essentials of life would be impossible. But the Franciscans, in attempting to refute the canon lawyers, ended up couching their arguments against law in legal terms. For the logic of law is necessarily all-encompassing. You cannot have a discrete arena for legal relations any more than you can for capitalist relations.
The lesson, Agamben argues, is that the Franciscans should never have attempted to engage with the canon lawyers on the precise meaning of usage, as St Francis had himself refused to do. And, indeed, I think he is correct to pinpoint this historical moment as one in which the church was transformed into a vehicle for the resurrection and triumph of law.
First, the flaw in the argument of the Franciscans lies not in the question of usage, but rather over that of possession. Property and possession are not synonymous. One can have possession of something without owning it in the proper sense of that word. The most obvious example of this would be our bodies, over which we should have possession but which is only turned into property as slavery, prostitution, wage labour, etc.
We also possess air to breathe without owning it. Access to food, for example, should be based on the need for sustenance, not on the ability to buy it or otherwise assert rights over it.