By Samuel Brabham
Giorgio Agamben is one of the 21st century’s most influential philosophers. This essay will discuss his thinking regarding the ‘state of exception’. A brief description of what the state of exception is and why it is implemented will ground this essay. The work of Carl Schmitt and Walter Benjamin deepens our understanding of the connection between the sovereign and the state of exception. We will explore Agamben’s claim that the state of exception is becoming the norm through his description of the camp as well as its use as a preventative measure. Finally, a critique of Agamben’s understanding of the relationship between the state of exception and totalitarianism will be discussed. Agamben demonstrates that the state of exception has become the norm in contemporary political life.
The state of exception allows for a unique interaction between sovereign nations and their laws. In instances of national crisis, such as natural disasters or war, governments suspend the law to maintain order. This suspension has many different names—the ’state of siege’ in France or ‘martial law’ in Canada—but they are all fundamentally the same thing, a state of exception. The state of exception is often enacted under the paradoxical pretence of suspending laws and rights to ensure their protection, so they may be reinstated once normality is restored. In other words, laws which undermine the nation state’s ability to maintain control, such as rights to free movement or rights to privacy, are put on hold until order is restored. This sublimation of law by order allows the state to act unfettered by legal accountability, endowing it with power and stripping rights from citizens. The state of exception is the sovereign nation’s means of self-preservation in the face of crises at the cost of the law and citizens’ rights.
Carl Schmitt’s political and juridical thought is instrumental in legitimising the state of exception. Agamben claims that Schmitt’s ‘Political Theology’ is a direct response to Walter Benjamin’s ‘Critique of Violence’. In ‘Critique of Violence’, Benjamin develops the idea of a violence unconcerned with legal ends; a violence elevated above the sphere of the juridical and containing the potential for revolution. This pure violence does not create or maintain law but displaces it and brings about something new. For Benjamin, this anomic-violence is the state of exception as it exists outside of the nation state’s legal authority. In ‘Political Theology’, Schmitt attempts to eliminate the revolutionary potential of pure violence by bringing the state of exception into the juridical sphere. Schmitt claims the sovereign’s very role is to determine when a state of exception must be entered. Thus, the sovereign not only sets the parameters and enforces the law but also exists outside the law, able to suspend its implementation. In Schmitt’s view, the state of exception is utilised by the sovereign to temporarily act outside the confines of the law, ensuring its preservation. Thus, Schmitt enfolds Benjamin’s pure anomic-violence into the juridical body of the sovereign where it becomes a tool to preserve law rather than displace it.
Agamben argues that the state of exception has become the norm for Western democratic nations. Since the beginning of the twentieth century the state of exception has become an increasingly frequent practice. Agamben traces many instances of its implementation from World War I to World War II, and through to the beginning of the 21st century. In offering a broad array of examples, Agamben demonstrates how the state of exception has become a frequently used political tool. Nowhere is this more apparent than in the creation of the ‘camp’. For Agamben, the camp, be it Auschwitz, Guantanamo, or Nauru, is the ‘spatial arrangement’ of the state of exception. It is a physical place outside the judicial sphere, where inhabitants are indefinitely detained and at the mercy of an unrestrained sovereign power. In 1992 the Australian government passed the Migration Amendment Act 1992 ‘as a temporary and “exceptional”’ means of addressing an increase in asylum seekers.  The ensuing detention centres which undermine personal freedoms still remain fifteen years later. The exception has become the norm.
The camp is not the only symptom of the normalisation of the state of exception. The state of exception is no longer solely used as a reactionary measure to restore order, but as a pre-emptive means of preventing potential disorder from arising. This is exemplified by the creation of temporary Protective Security Zones (PSZs) for the 2018 Gold Coast Commonwealth Games. These zones give police additional powers to search an individual’s ‘belongings and… vehicle’, despite there being no known threats to the Games.  According to Gulli, this suspension of citizens’ rights in the face of a potential emergency is a symptom of the state of exception becoming the norm. It also diminishes the potential for political action as it preempts the disturbance of sovereign order. The creation of PSZs illustrate how sovereign nations use the state of exception to suspend the law as they see fit, wherever and for whomever.
Through illustrating its proliferation in Western democratic nations, Agamben demonstrates the state of exception’s normalisation. Yet his assessment of its implications is questionable. Agamben points to the normalisation of the state of exception as evidence of democratic nations’ descent into totalitarianism. He believes the state of exception endows the will of political leaders, the executive arm, with the same legitimacy as the law, the legislative arm. This allows the executive to undermine the Constitution under the pretence of protecting it, resulting in the creation of a totalitarian regime. Agamben, drawing on Benjamin’s pure violence, believes development of a pure law, non-prescriptive and divorced of ends, is the only way to prevent this transition. However, there is evidence to suggest the executive has not absorbed the legislative arm. For example, the Australian High Court’s recent ruling against the government regarding Section 44 (i) of the Constitution. This ruling destabilises the current executive’s ability to govern, yet has been accepted by it. A less deterministic observation of the relationship between totalitarianism and Western democracies can be found in the work of Hannah Arendt. Unlike Agamben, Arendt views the transition of Western democracies into totalitarian states as a possibility, not a certainty, and as preventable through the power of existing legal and structural systems. Agamben’s deterministic diagnosis and radical remedy regarding the decline of Western democracies into totalitarian states seems to ignore the potential for change present in current systems that is identified by Arendt.
The state of exception is a sovereign nation’s means of suspending the law to retain power and ensure order. Schmitt, writing against Benjamin, legitimises the state of exception by locating it in the juridical arm of the sovereign. Following Agamben’s thought on the development of the camp, it is clear the state of exception is used by the Australian Government. The PSZs present during the Commonwealth Games, for example, illustrate how the state of exception is becoming a preventative tool to mitigate potential disturbances. An exceptional crisis is no longer needed for Western democracies to declare states of exception. Even though Agamben successfully demonstrates how the state of exception has become the norm, his belief that it will inevitably lead to the rise of totalitarian states seems like an overreach, especially when considering Arendt’s position. Hence, Agamben’s observations regarding the state of exception appear more valuable than his solution.
Sam is a third-year Bachelor of Arts student at the University of Queensland, majoring in Philosophy. He is interested in pursuing research into the contemporary application of philosophy. Sam enjoys German existential and phenomenological philosophy and baking bread. He recently turned thirty and seems to be taking it pretty well.
 G. Agamben, State of Exception, 1; J. Lechte and S. Newman, Agamben and the Politics of Human Rights, 8.
 W. Kisner, “Agamben, Hegel, and the State of Exception,” 223.
 G. Agamben, State of Exception, 8.
 Ibid; L. De la Durantaye, “The Exceptional Life of the State: Giorgio Agamben’s State of Exception,” 182.
 G. Agamben, State of Exception, 54.
 Ibid, 60; W. Benjamin, “Critique of Violence,” 154.
 S. Humphreys, “Legalizing Lawlesness: on Giorgio Agamben’s State of Exception,” 681.
 W. Benjamin, “Critique of Violence,” 136-7; W. Kisner, “Agamben, Hegel, and the State of Exception,” 227.
 D. McLoughlin, “The Fiction of Sovereignty and the Real State of Exception: Giorgio Agamben’s Critique of Carl Schmitt,” 510.
 S. Humphreys, “Legalizing Lawlesness: on Giorgio Agamben’s State of Exception,” 680.
 D. McLoughlin, “The Fiction of Sovereignty and the Real State of Exception: Giorgio Agamben’s Critique of Carl Schmitt,” 516.
 E. Kruger, “State of Exception,” 339.
 G. Agamben, State of Exception, 13.
 Ibid, 12-22; E. Kruger, “State of Exception,” 338.
 L. De la Durantaye, “The Exceptional Life of the State: Giorgio Agamben’s State of Exception,” 181.
 G. Agamben, “What is a Camp?” 38.
 Ibid, 40; G. Bourke, “Bare Life’s Bare Essentials: When All You’ve Got is Hope – The State of Exception in The Road, District 9 and Blindness,” 443.
 Parliament of Australia, “Immigration detention in Australia.”
 B. Gulli, “The Ontology and Politics of Exception: Reflections on the Work of Giorgio Agamben,” 219-20.
 Queensland Police, “Commonwealth Games Laws.”
 B. Gulli, “The Ontology and Politics of Exception: Reflections on the Work of Giorgio Agamben,” 220.
 G. Agamben, State of Exception, 11; S. Humphreys, “Legalizing Lawlesness: on Giorgio Agamben’s State of Exception,” 678.
 G. Agamben, State of Exception, 2.
 W. Kisner, “Agamben, Hegel, and the State of Exception,” 226.
 G. Agamben, State of Exception, 15.
 Ibid, 88.
 S. Humphreys, “Legalizing Lawlesness: on Giorgio Agamben’s State of Exception,” 684; J.D. Isaac, “A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics of Human Rights,” 63.
Agamben, Giorgio. “What is a Camp?” in Means without end: Notes on politics. Translated by Vincenzo Bintetti and Cesare Casarino, 37-45. Minnesota: The University of Minnesota, 2000.
———. State of Exception. Translated by Keven Attell. Chicago: The University of Chicago Press, 2005.
Benjamin, Walter. “Critique of Violence.” In One-Way Street. Translated by Edmund Jephcott and Kingsley Shorter, 132-154. New York: Verso, 1997.
Bourke, Greg. “Bare Life’s Bare Essentials: When All You’ve Got is Hope – The State of Exception in The Road, District 9 and Blindness.” Law, Culture and the Humanities 10, no. 3 (2014): 440-463.
De la Durantaye, Leland. “The Exceptional Life of the Sate: Giorgio Agamben’s State of Exception.” Genre: Forms of Discourse and Culture 38, nos. 1-2 (2005): 179-192
Gulli, Bruno. “The Ontology and Politics of Exception: Reflections on the Work of Giorgio Agamben.” In Sovereignty & Life, edited by Matthew Calarco and Steven DeCaroli, 219-242. Stanford: Stanford University Press, 2007.
Humphreys, Stephen. “Legalizing Lawlesness: on Giorgio Agamben’s State of Exception.” The European Journal of International Law 17, no. 3 (2006): 677-687.
Isaac, Jefferey C. “A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics of Human Rights.” American Political Science Review 90, no. 1 (1996): 61-73.
Kisner, Wendell. “Agamben, Hegel, and the State of Exception.” The Journal of Natural and Social Philosophy 3, nos. 2-3 (2007): 222-253.
Kruger, Erin. “State of Exception.” Space and Culture 8, no. 3 (2005): 338-342.
Lechte, John, and Newman, Saul. Agamben and the Politics of Human Rights. Edinburgh: Edinburgh University Press, 2013.
McLoughlin, Daniel. “The Fiction of Sovereignty and the Real State of Exception: Giorgio Agamben’s Critique of Carl Schmitt.” Law, Culture and the Humanities 12, no. 3 (2016): 509-528
Parliament of Australia. “Immigration Detention in Australia.” Accessed 3 November 2017.https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/Detention#_Toc351535448.
Queensland Police 2017. “Commonwealth Game Laws.” Accessed 3 November 2017. https://www.police.qld.gov.au/commonwealth-games/howwill/PPRA.htm.
Featured image by denisbin via flickr