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He is thf' .111tlvH<'f h:n prrvinw; h00k, irvlnding the prequd to this one,
Contents
H;Ml(J i)t:r; S(TGrcign Power (If!(} fiMC I.ifr, rub1i!tcd in English by St-anford
L'niy;:r>itr Press,
KEVJ N A TTBtC is
'Jl:'anslatnr's Note
ofl\xcel''"m as a
11
t."l 12 n w 09
oS 07 o6 05
1"01'CC-OI-.L!rVI(
Justitium
41
6 Auctoritas and
) 1 3 4 ,
1 fl N (cloth): OT.l.6009146
References 89
Index of Names
on.
) and index.
a!k. pu};er)
L
United Stlltes--Hlstory.
5 St.:ttt' ofni.;geEnn)pf'-Hit<'Y
sitgt'-Unired States-History,
w:w5.AJ413
3 \Vnr and
4 ':1/,1, Jml emergency power-;-
State nfsicge.
(;,State<)(
L Title,
1ous
321.dcz:,
l.(}lj4(H36So
fhh pt:b1k;;tit1n mrds the minimnm
requirements of
Sdn1c'C$Perm:ll1<ln\'C of
of Govemment
.rt.
[Stb dl
vH
Potestas
93
74
65
52
Translator's Note
translations
of Aga.mben's r:rcnch, German, and Italian sources in the retCrences list. Flow
ever, in order lo maintain nmsistcncy in
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1-1
1>
Ch(tpter One
i nve s t igate. Only if the veil covering thjs ambiguous zone is lifted will
we be able to approach an understanding of the st akes involved in the
difference---<Jr the :Supposed difference-- between the political and th e
juridita1, and b<..ctwecn law and the liVing: being, And perhnps only the n
will it be possible to answer the question that never ceases to rcverberak
{1963) in hoth
( itai.
siege fictif) goes
(tat
de
back to Prench public !mv theory and wa alreody clearly articulated in Theodor
the orfgins of the Schmitt ian and Benjaminian opp<)sition between a real and
Thus, over l_he course of the twentieth centu-ry, we have been able to
to speaK nen:
lhe National Socialist State" (Werner Spohr, quot e d. in Drobi5:che and Wieland
a "legal civil war" (Schnur 1983). Let us take the case of the Nazi State. No
199), 28).
sooner did Hider take power ( or, as we shou]d perhaps more accurately
say, no sooner was power given to him) than, on February 211, h: pro
1.3
claimed the Decree for the Protection of the People and the State) which
liberties. The decree was never repea led; so that f rom a juridkal stand-
,.
I
!
I'
!:
!.
war that allows fm the phys i cal e1iminatjon no I only of political aclverw
saries bu t of entire c ategories of citizens who for some reason cannot be
"
der'' issued bythe president of the United States on November 13) 2001.,
which authorized the ''indefinite detention" and trial by "military cum
:tctivitles.
The USA Patriot Act issued by the U.S. Serwte on Octoher 16, 2nm,
integrated into the political system. Since then} the voluntary creation
of a per m anent state of emergency (though perhaps not declared 'in the
cu stod y"'
aoy al ien
United States," hut w ithin seven days the alien had to he either released
to appear
nal offense. What is new ahont President Bush s order is that it radically
'
er ases any legal status of the individual, thus prod ucing a legally l.m
Afghani stan not enjoy the status of PO\s as defin ed by the Geneva
Chapter One
of a detention that is indefinite not only in the temporal sense but in its
very nature as well, since it is entirely removed trom the law and from
along
with their citizenship, had lost every legal ldentily, but at least retained
the ir identity as Jews.
ical uncertainty. The present study will use the syntagma state <{excep
timt as the technical term for the consistent set of legal phenomena that
it eeks to define. This term, which is common in German tl1eory (Aus
neutral fn this
a position taken
polttical
Jimit concept.
N: The historv of the term
cv
:i il authorityead1
functions entrusted to the civll anthorit y for maintaining order and internai
pass to the miJl!arycommander, who exercise.<> them under his exclu
(ibid,), The decree referred only to militarystrongholds and
sive
ports, but with the law of w Fructldor Year 5, the Directory assimilated munic
in the interior with the strongholds and1 with the law of IS Fruc:tidor
of the same year,
tion from the wartime situation to which it was oribrinfl!ly
measure to cope with internal sedition and
be used as an extraordinary
djsorder1 thm:
from
fictitious, or
of armed revolt or dlshnbances tha! would threaten the securityof the State, the
Jaw can. in the.
the ronstitutJon, In such cases, this suspensl011 <:rln he pro visi onall y declared by
a decree of the government if the legil\lativc hody is in recess, provided that t.h is
Wilrthne powers into the civil sphere) and on the other a suSpensi on of the
oonstitution (or of those wnst1Hltinnul norms that protect indivldualliherries),
in time the two modeL end up merging into il single juridic.d phenomenon that
we call the stale of<1XC<>Lioo.
fictitious
is instructive in thi6
N: The ex press i on full pnwct;; (p!rdm prmvoirs), which is s omet im es used to char
acterize the state of exception,
ref ers
whkh was elaborated in that true and proper laboratory of modern pubJlc legal
or
decrees having the fon:::e oflll.w, [t d'riYE'S from the notion of plimit11dopote.trrtis,
i,
[i,
It
I:
''
H
I
Chapter One
l1atadigm of Government
terminology th{lt wa;; canon Jaw. The presupposition here is that the state of cx
enrnils. a n:tum to an original, pleromatk state in which the distinction
among the tlilferent powers (legislative, executive, etc.) has no t yet been pro
duced. As\ve will s ee, the state ofe-xception constitutes ruther a kenomaticstcttl':,
an en:1ptine,;s
powvr m ust be co nsi dered a legal mythologeme analogOt!s tu the i dea of a statr.:
ofD<'{ure (and il is not by chance that i t was precisely Schmitt
to
Jn
any case,
tht. term
full powers
executive power's possible modes of action during the stare of exception, but i t
1.5
moment of particular fortune, but h i.s signifi cant that this occurred
I,
dictatorship.
This term (which German jurists had already used to indicate
emergency r eccezionali] powers that Ar ti cl e 48 of the Weimar Constitu
. tion granted I he president ofthe Reich [Hugo Preuss: ReJ'cl"l!'etfasmll:gs
miiftige Diktatur J) was laken up
Watkins
Friedrich
we must also at
least mention the hook by the Swedish jurist Herbert Tingsten 1 Les p!etns
pendant et
Ia
e_xceptlonal rneasure, but it also lets its own nature as the consti tut ive
Tingstt..n's analysis centers on an essential technkal problem that pro
delegation contained in the "full powers" laws mentioned above, and the
sug-
first time bow the dernocratic regimes were transformed bY the grad
ual expansion ofthe executive's pOwersduring the two world wars and,
more gener<'llly, by {he state of exception that had accompanied and fol
lowed those wars. They tire in some ways the heralds wl'lo announced
what we todayhave clearlybefore our eyesnamely) thar since '(the state
of exception ... has become the rule" (Benjarnin .1942, 697/2.57)} it not
only appears incteas.ingly as a technique of govemrnent rather than an
circumstances of
'
necessity or emergency, conflict with the fundamental hierarcbv oflaw
to the execur qoverno I a lecisJative power that should rest exclusively with paruament, Tingsten seeks to exarnine the s ituat ion that arose in a series
SwitZ<!rland, Be!lgitun, the United States, England,
AuMria, arkl Germany) from the
expansion of executive [governattJentaliJ powers
to become a
government.
Otaptef Otte
as
[4])
paSsage from. one to the other. The tact i s that the two essential crite
of constitutional government"
(584)
ria of absolute necessity and temporariness (which all the others come
down to i n
well> that is} that the state of exception ha"l hy now become the rule:
"In the Atomic Age upon whkh the world i1:> now ent er ing, the use of
constitutional emergency powers rnay well become the rule and not the
exception')
book may have g.ven the impression that SU(.:h techniques of govern
ment as executive dictatorship, the delegation of legislative power) and
]awrnaking by adminjstrative det:,rree were purely transitory and tempo
rary in nature. Such an impression would be tHstinctly misleading.
hypothesis here is that because the democratic regime, with its com-
sis on the concept of history, was undoubtedly accurate; hut the words
that conclude the book so un d even more grotesque: ''No sacrifice is too
(313),
(:;14).
ernment of a stronger character; that is, the government wiU have more
nghts" ( Rossiter
1948, 5).
Ro<>ite r is aware
Chapter One
text of the
constitution or
11
from the sphere of positive law prevailed, and the artide was not ap
proved. However, in the Constitution ofthe German Fede ral Republic
there is an article (Article 20) th at uneqnivoc;; lly l egalizes the right of re
sistance, sta ting that "against anyone who attempts to aboli sh that order
[the democratic constitution]> all Germans hwe a r ight of resistance if
no other renwdiLs are possible,"
The opposing argmnents h.re are exactly symmetrical to the ones
that divide advocates of legalizing the state of exception in the text of
the constitution or a specal law and those jurists who believe its nor
mative re gulation to be entirely inappropriate. lt is certain, in any case,
omisswn
that if resistance YVere to become a
of which could be
positing i tsdf as an absolutely untouchable
but the citizens' political choices would aJso end up being determined
The fact is that in both the
byjuridicaJ norms
of resistance and the stat::
question of the juridical signi!J.catJCe
in itselfextr aj uridkaL 'IWo theses are at odds here: One asserts that law
must co incide with the no r m ) and the other holJs that the sphere of
the two p o sition:} agree
law exceeds the n orm . But in the last
in ruling out the cxbtence of a sphere ofhnmau actlon that is entirely
removed from law.
A BRIEF HISTORY OF THE $TATE OF
EXCP.P'fll)'(>l,
W<: h<lVC
<!l rel'\dy
seen
how the state o{ siege htrd its origin in Fran ce during the R:volutio:n. After being
est-ablished with the Constituent Assembly's decret; of July 8, 1.791, it acquired
its proper physiognomy as
Directorial law of August .t.7> 1797, anJ, finally, with N::tpoleon's decree of De
cember 24, 181.1.. The idea of a susptmsion of the constitution (of the ''rule of
the constitution") h ad instead been
introduced,
as
Constitution of 22 Prima ire Year 8. Article 14 of the Cltartc of 1814 granted the
sovereign the power to "make the reuulations and ordinances neo::.s::;arv for the
i ng tl1e whole Charte wHl be forfeited for the benefit ofArtide 14," The &tate
wail expressly roentloned in the
stated that 11 could
Chapter One
1931, 18),
l:Xe<:uti vc [governativo]
After the fall of the July Monarc hy, a decree by the C:onstitucnt Asembly on
Jun e 24, t3A8, put Paris 1n a st ate of siege and assigned (Jeneral Cavaign<1c the
task of rest oring order in lhe city. f'_,onsequently, an art ide was included in the
of the !>late of siege would be firmly set by a law. Ftom this moment
and
a;.;
withotJt exceptions) has been that the power to suspend the laws
C<Hl
belong
to the same power that produces them, that is, parliamen t (ln coutra11t to
the German tratlitlon, whkh entrusted this power to the head of;tatc). T he law
of August \,.1, 1849 (which was partially restricted later by the law of A
. .pril .1, 1878),
13
emer
tinn between war and economics). rn Janu ary 1924, at a time of serious crisis
thai threatened the st<tbiHty of the frrlnc, the I)oincarC. governme-nt asked for
powers over financial matters. After a hitter debate, in which the, Of'l "'siti:on
pointtd out that this was tantamount to parliament renonm.:ing its own runstitutionai powers, the law
v1as
to
conSe quently establihed that a political state of siege could be declared by par
liament (or, additionally, by the head of state) in the case of irnminenl danger
decrees "having furce of law" in order to avoid the devaluation of the franc.
to external or intcm:1l S('\:udty. Napoleon Ill had recourse sever a( timzs to this
The ormositlon from the left, led bv Uon Bl um , stronl.Uv ouposed this "'fascist"
practk:e, bnt it i significant that once the l.eft took power with the
1852, the exclusive power tn proclaim a state of siege to the head of state. The
]lront, it askfd parliament in June 1937 for fuli po wers jn orde r to de\'alue the
franc, establish exchange c ontrol, and impose new taxes . i\s has hcr:n observed
(Hnssitcr 1948, 123), !.his meant thar the new
forty dc partmen ls and lasted in some of them until 1876. On thebasis of these
hli!ed
1849 was modified to establish that a state of siege o:mld he dedared only with
a law (or, if the Cham her of Deputies was not in session, by the head of state,
who was then ohligaled to convl;'nt> parliament within two davs) in the event of
''imminent
r esulting from
3, 1878, Art
1L
adler reques ted and obtnine<l from parliament exceptiM1t1l powers to legislate by
decree in order to cope with both tht: threat ofNa'li Germany i'lnd tht: e(:onomk
c.risis. It can therdOrc he said that until the end of the '111ird Hepnblic "th
(124). 'Vv11en we sludy lhe birth ofthf' so-called dictatorinl regimes in11aly and
Germany, jt J,q important ni1t to forge t this concurrent process that transftrmed
vened into
the democratic constitutions between the two world wars. Undel' the pressure
1915, many of
on\y today renchcd its full development. In Decemher 1939, after the outbreak
to the t'.:xccudve, such as the law ofFcbnwry 10, 1918, which granted th<-: govern
ment an all but absolute power to regulate. by decree the producti-on m1d trade
measures necessary to ensure the defense of the nation. Parl iamen! remained
of foodstufts. As
in session (except when it was suspen ded for a month in order to de-Drive the
communi st parh;nncntnrians of their immunity), but aU legislative
1-1
Chapter One
15
ident's
did theo rists regularly use the phrase "presidential dictatorship" in reference to
Artide 4B, l.nll in 1925 Schmitt could write thal "no conslit.utiort on earth had so
by the German
Save for a rdative pause between 19_2-5 and .19 29 , the governments of the Re
is
by Artide 16,
which De Gaulle had proposed, The artide e:,;lablishes that the president of the
lhe indept;ndence of the Natkm, lhe
e asily cga i ed
of its trritory,
or
th{ ewcu(io.n
of its international commitments are setlou,qly ami im ri1 cdiatelY threatened and
1961, during the Algerian crisis, De Gmll.e had recourse to Article 16 even
1 hat time, Article 16 has never a gain been invoked, but1 in conformity with a
public, eginning with Brtlning's rrwdc con tin ual usc of Arlide 4&, proclaiming
a state of exn:ption and i1>suing emergency decrees \ln more than two hundred
and fifty(KCasionS-; among oth(>:f things, they employed it to impri son thomands
of communist militants and to set up
capltal scnteilO'S, On several occ asion s , pnrticubrlyln October 192.1, the govern
ment had recourse- to Anicle 48 to
It is wen known that lhc
der a regime of the state ofmcp1:io11;
id.ential dictatorShip
ln JulvHno,
Hirler's rise to power without first analyting the uses and abuses of this artide
the history of Germany between the wars that it i!l impossible to undct1>tmd
in th e ye:J rs hetwecn 1919 and 1933. lts immt'diate precedent "\<roS Article 68 of the
ened in 1 he tenitory of the Reich,"' gnml ed the emperor the power to dedare
a part of the Reic.h to be i n a state of Wdf
Hmit<Hionfl. tt:1Howed !hose sel forth in the Prussian law of.Tune 4, 1B5J, .:on
the state of siege. Amid the disorder and riotin;; that followed th e end
[ nheblirir j
centrists
advent ofNazism. On July 20, a state ofexcep tio n was vrodaimed in the Pfussian
territory, Hnd von PHpen was narn ed Reich Commissioner j()r Prussia-ousting
Otto Braun's Soci.al Dcmoaatic government.
p residency wa. justified by Schmitt on a constitutional level hj' Lhe idea that the
and
presiden t acted as Jh( "guardian of the constitittion"' (Schmitt 1931); but lhe end
the- president ofthe Reich may take the meJ.Slucs necessary to reestablish
order, with the help .of the armed f(m:cs if required . 1b this
dictatorship fu nctions ins!ead as a tra mdtinn:1l nha::.e that l<."ads inevJtahlv to the
establishment of a totalitarian
[ Grundrechtej
established in Artidcs 1.14, 115, 117, 118) 123, 12.41 and 153." The article added that
a
mw
law would specify i.n detait the conditions and limitations under which this
prc$idzntial power was to be exercised. Since that luw wus neverpassed) the pres-
Given these prn:cden ts, it is undlrstandahJe thal the constitution of the Fed
Repub1i.c diJ not mention the state
16
Chapttr Oc
a Jaw fOr the amendment ofthe constitutfon ( Gesetz z11r Ergiinzungdes Gnmdge
non-warring state granted powers to the executive that were even vaster and
vaguer than those received by the governmenb of wuntries dinx:tly involved in
the war---is of Jntcrrst because o( the deb-ates
in the assem-
i.tself and in the Swiss Federal Court when the cltlzens objected that th ad
was unconstitutionaL The tenacity with which on this occasion the Swiss juris Is
(nearly thirtyy\tH5 ahead ofthe th eoris1s ofconstitutional dictatorship)
(like Waldkirch and Burckhardt) to derive the legltitnKY of the state of excep
tion from thetext of the constitution itself (specificall.y, Article 2-, whlch read,
"the aim of the ConfCderation is to ensure the independence of the fatherland
against the foreigner !<md] to maintain internal rmnquility and order"' ), or (like
exceptional provisions must tlll1 shows that the theory of the state of exception
is by no me-<ms the exdu?ivc
to
in 1M2 and tMti, in N<lpl<:s in 1R62, in Sid!y and .nnicianfl in 1894, and i n N<1p!cs
and Milan in
l891),
December 2A, 1908 is only apparently a different situation. Not only was the
state ofsiege ultimatdy proclaimed )r reasons of public order-that is, to $Up
press the robberies aml loo ting prov<'Jkcd by the dism>ter-but from a thCoretical
standpoint, it is also significant. that lhest acts fUrnished the occasion that al
l owed Santi Roma.n:n and other Italian jurists to elaborate the thesis (whi<:h we
examine in some detoliJ later) thnt necessity is the ptimaty source of!aw.
In ead1 of lhese cases, the state of siege
was
pr<Khlin'ICd
decree
issued in the
pneccdiJ1g Yi'ars were thm converted into law). 1n 1;'J.6 the Fascist
had a
law issued that expres.sly regulated the matter of the law-decrees. Article 3 of
this hlw cst<blished that, upon delihMtion of t he mtmdl of ministers, ''norms
forcr onaw" could be issued hy royal decree "( r) when the government
delegated to do sn by :.1 law within the limits of the delegation, and ( 2) in ex>
traordinary situations, in which it is reqnired for ft>(l SOns of urgent :md <1bsolutc
necessi t)'. The .i udgmenl concerning necessity and urgency is not subj ect to any
ovenight other than parli ament's political oversight." The decre-es provided for
in the second <:lanse h<Jd to be presented to parlinm<nt for convers-ion into law;
In Italy the
interest with reg< ml lo
emergen.;y cxecuilvc
Lovcntatl'i]
from
1981, 1)6),
but parliament's total loss of autonomy during the Fascist regime rendered this
condition .uperlluous.
functioned as a true and proper juridko-pnlit!;;:al labnratory for orga nh:ing the
law" (Fresa
Ori August 31 1914, the Swiss federal Assemhiy granteJ lhe Federal Council "the
l7
But this also means that nne of the essential parad igms
[gov
crnamcntalc] was chiborated precisely by a state whose governrnents were often
imst.able. In any case, it is in this context that the emergency decree's pertinence
to the problernatic sphere of the state of excepti on comes dearly into view. The
the Republican Constitution established with singular con tinuitv that "in c:x>
traordinary situations of neces;;ity and emergenq"'
"nrovi siona] measures having force of law," which had to
day to pnr!iammt and which went out of effe<t
sixty dav.s of their issuance.
Tt is wd! known that sim:e then the
the rule
18
Chaplcr One
(see, for example, tl:e decrees issued for the repression of terrorism : the law
d ecree of !vhuch 28, 1978, n, 59) co nverted into the law of May 21 1978, n. 191
(Presa
to approve o. series of
! the so-c;llrd Moro Law], and th e law-decree of December 15, 1979, n. 625, con
provided for serio us limitations on the fundamen tal rights of the citizens
(in partic1dar, gran1ing mi titary tribunals jurisdiction over civilians) , The activ
as in F:ance. And in England too this process we11t beyon d lhe emergency of
tht war,_ f1S .is shown by the approvalon October 29, 1920, in a tirne of strikes
and social tensions-of the Emergency Powers Act J n d<:>cd, Arlide
l9
1 of the act
t.iated. i hat
today un dcrv.-:ay to
it would Hke to
I i]f at any time it appears to His Majesty that any action has been taken or is
Jmmediately threatened by any persons or body of petsons of such a nature
and on so cx len sive u scale as to be cal culated , by interfering with the supply
anrl distrihution of food, water, fud, or light, or with the means of locomo
tion, to dep rive the
tat de
sieg? goes by the term maJ"tial !aw; but this coucept is so vague that it has been
rightly described as an "unl ucky name for th e justification hy the cmnmon law
of acts done by necessity for the defence of the Commonwealth when there
is war within the realm" (Rossiter 1948, 142), This, hnwev(:r, docs not mean
that somet h ing like a stat< of except ion could not exist. In tbe Mutiny Acts)
the Crown's power to dedare martial law was generally conJined to times of
war; nevertheless, it m.'c.essarily entailed sometimes serious t:onsequences for
exists.
i n Council the power m i ssue regulati o ns
and duties , . , necessary tOr the prescr("courts ofsnmmaryjuris-
: principle of
had been
Jntrodnccd into
law.
the civlliam who found themselves factually involved in Lhe armed repression.
martial law from the miUtary tribunals and
to soldiers, in order to conceive
of il as a purdy fftctual
lhe name it hea rs, martial law is ileither a right nor a law in this sense,
but rath er a proceedin g guided
Out.
: ofexet"ption in
;'!S i1
20
Clwph:r One
21
The textual hasis of lhe conflict iies first of all in Article 1 of the constitution,
which estahlihes that ''[t]he Privilege of the Writ of Habt>as Corpus shaU not
drimed the emancipation ofthi'i' slaves ()TJ his authority alone and, two days later,
may require iC1 but does not speci fy which authority has the iurisdiction
.
dde on the suspension (even thou gh prevalling opinior1 and tbe con text of the
generalized the siate of exception tbrou;hout the entire territory of the United
States, authotiziug the arrtr-t and trial before i:Ourts martial of ''all Rebels and
passage itselflead one to assume that tbe dauHt is dinx:t,:d at Congress and not
Insurgents, their aiJ.ers and abettors within the United States, and all persons
the prtsidenl), The second point ofconflict lies in the relation betwe(11 annthcr
passage of Arlklc 1 (whicll dcdares tbat: the powel' to declare war and to raise
loyaJ piactke, a fforrling aid and mmfort to Rebels against the au tho rity
and suppott the army and navy rests with Congrer>s) and Article::>, which states
UnitN States." By thls point, the president of1he United. States was the holder
thai 1'(t]he Pn:sident sha!l be Commander in Chiefof the Atmyand Navy of tbe
of the
Both of these problems reach their critical threshold with the Civil '\Var
row Wilson persona lly assumed cveu broader powers than those Abraham Lin
creed th<1t an army ofseventy fivc thous<1nd men was to be raised and C\lnVened
C.ongrcss, as Lincoln had Jone, Wilson prefened ead1 time to have the powers
{18(n-,t865), Acting counter to the tcxl ofArticle h on April 15, 1861, Lincoln de
coln had cla.lmed. It is, however, necessary to specify that instead of ig11 oring
a special session of Cogress for J u ly 4 Jn the ten weeks that passed betw1-;en
April 15 and Jufy 4, lincoln i n fact acted as an absolute dictator (for this reason,
emmCY:t is doser to th{ one that would prevaii Jn Europe in the same years, or
to the current one, which instead of d eclari ng the state of exception prefers to
can
refer to it as a
example of rom
mis.'iarla1 dictatorship: see 1921, 136}. On Apdl 27, with a technically even more
pend the writ of habeas corpus whenever he deemed it necessary along milltary
approved
line. between washington and Philadelphia, where there had been disturbances.
t:mmtry and not only prohibited disloy<1l a ctivities (such as collaboration with
the enemy mid the diffusion offalse reports), but even inade it a crime to "will
continued even after Congn:ss >;..;as conveued (thus, on February 14, 1862, Lin
(Oln imposed censorship of the ffi<li1 .and ;tuthorizcd the rn:rest and detention in
mnitary prisons of penums suspedcd of "disloyal and treasoitable pnlctices").
In the socech he delivered to Congress when it was finally cmwened on July
Justified his act1ons as the holder of a supreme power to
declared, the mt>asures he had adopted had been taken "under what appeared
to be a popular demand and' a public
would
la\V could be violated if the vety existence of the union and the juridical order
were at stake ("Are all the laws
148, 229},
I assume unht.:sitatingly the leadership of this great nrmy ofour peopk dedf.
C<lted to a disciplined atta(k upon our common problems.
1 am prepared
and Congress is essentiaUy theoreticaL The fa:t is that <lthough Congress was
that the Congress shall fa i! to take [the necessary measures! and in the event
22
Chaptu OM
23
that tbe national emergency is still critical, I shall not evade the dear conr.se
of duty thHt will then confront me. I shall ask the Congress for the one re
maining instnllut:nt to meet the crisiroad Execu tive power to wage war
against th emergency, as great as the power that would be g.iven to rne if we
14""15)
as Santi Ro-
some
an integral part of positi ve law bt::cause the necessity that grounds it acls
letti) and Rossiter) conceive of it as the state's subj ective ( natural or
ms realized by
Jn the National
powt:r to
and control every aspect c)f th e economic hfr of the country-a fact
that is in nerfect contOnn ity with the al ready mentioned parallelism between
twen
The onlhn'ak of World War "IWo extended these powers with the prodama
l i rnited 011 May 27, 1941. On St"ptcmber 7. 19.12, wh ile requesting that Congress
rcpea[ a J11w con cerning economic matters, the preside11t renewed his daim to
wsted in me to accomplish the defeat of our enemies in any part of the world
where our OWil safety- demands such defeat" (Rossiter 194 268-69). The most
as
the "Cornman-.
which the
en1ergency becomes the rule:) and the verr distin{ti-on helwcen pean an d war
(and beh\'een t(Jreh;n and civil war) becmnes impossible.
these theories_ s<.cms insuffident to acco unt for the ph(nomcnon that
of the
is inste-Jd
i t possible f()r tbc order t o contain a lac.una precisely when: the decisive
situation is concerned? And what is
exclude each other but rather bl u r with each other. 'l1Je suspen5jon of
the n o rm does not mean its aboHtion, and th e zone of anomie that it
cstahlishes 1& no t (or at least claims not to be} unn:hlit'{i to
1.8
order. llcnce the in terest of those theories that, like Schmitt's, compli
tion within the suhere of the iuridkal order and those who consider it
lation, in which the very limit of the juridic(!] order is at issue. Jn any
cate the top ograph ical opposition into a more complex topological re
24
Chapter One
case to understand the problem of the state of excepti on, one ntust first
power to grant
see, the
as a dispute
25
art.
that must he dealt with at once, it ls not i n the power of any man to
cm.cept o f nece>sity.
non haiJet was for4
The prlnciplc according to which necessltas
mula ted in Grati an1S Decretum. I t appears there two times: tkt in the
gloss and then in the text. The
(whkh refers to a pas...;;age in which
Gratian limits himself to
that "m:flny things are done
of the
licitum. in lege, necessitas facit licitum. Item nr.cessitas legem non habet flf
something is done out of necessity,
11 ) . After having stated that the sacrifice must be offered on the altar or in
l
I
by the sovereign who in a case of thi<; sort, has th:- authority to grant
dispensations from the law. If th ere is, however) a sudden dange-r, re
garding which th('re
subject "to the law [ ipsa nccessitas dispensationem hahet annexam, tfuia
necessitas non su!Jditur legi] .
Here, the theory of necessity is none other than a theory of the excep
by vi rtue of which a particular case is released from
the obl igation to observe the law. Necessity is nol a source of law, nor
do\:s it prope-.rly suspend the law; h m erely rdeases <1 [>Mticular case from
the H tera1 appl icatio n ofthe nonn: "He who acts beyond the letter of the
tion ( dispensa tio)
law in a case
licit (Si prnp1er necessitatcm aliquid fit, illud licite fit: quic1 quod non est
int(f}H'Cl what
ll
!
served
verba
here is not necessity
" ln the
the canonist states that the Church can elect not to punl'lh a transgression in
Chapter One
:t6
eventu rei
(for the consequence of the thing]: for <:xampk l n a case where a person who
could not accede to the episcopate bas iulact already been onhind as bishop).
P<1rac!oxically. the law is not applied here pte(':i.5ely because the tr nsgressive act
has
effe.-iively already h{:(ll commi tted aiJ(i .p11nishing it would anyway entail
negati ve consequences f()r the Church. In analyzing this text, Anton SchUlz has
rightly observed th at "in condi tioning validity by
w ith an cxtrujuridkal rality, [Gratian 1 prevent,., lJ!e law from rdCrrlng only to
tbc law
and thus prevents the closure ofthe juridical system'' (Schiiiz 1995, uo),
by whkh, jn this
case,
one acts
as if lhe hishop had hien legitimately eieded. The modern stUte of exception is
instead ;m attem pt to indude the exception itst'lf within the juridical order by
of i:ndistinction in which fact and law coincide.
unrelated to th e juridical
ing to Romano, both posit ions, which agrc( in their identification of the
source of alJ law, such that by comparison l'lw ot hers are to be con
sidcrcd .somehow derivative.
ne<:eso:ity tend s to be
as
(drrn:!ro, !t'j'l,
11rcessitas
'
defines a
and l egiti m ation of the legal i nsti tu tio n par excel le nce , namely, the
included within the iu rid icaJ order and to appear as a true and proper
"'sl-ale" of the law. The princi ple according to which
legislation.
[il diritto_1
the common good) withoul Jaw, and that therefote ''whoever inlc'n,ls to achieve
1.10
[ f'tazicmali]
lent. but iure, Dante states that it is impossible to obtain 1he end oflaw (that is,
l'l: \t\/(! lind an implid t critique of tht> state ofexception in Dante's De monnrrhia.
cmmnon good Js
but it is
Seeking to prove that Rome gained dominion ovet the world not !hrough vio
graditur]"
Z7
regime can also repeat itsdf, tho ugh in an exceptional way and with
" The nvn terms: fwre ate dititio and frggc, both ofwhich m1:: lJSIUJ!y !ranslated in Ene.lish
"!nw." While theooe term<; hne dot' corn::spomle;Jn' in Frencb (droit, loi), Sp<mish
and Genr;an
p<1SS<S" \\t Fnglish . Among thdr mc;mings, rliritto c;wri,, thl' :wnse ofbw in th0 abgtr.Kt,
ot !he rutin: spl 1ere ofbw, 1vhile leggr; refcrt to tlw spe(,:iflc hndy of rules that (1 C(lnlmtmity
0t
str.k wnsiders binding. Here nnd in a fc;w- oth<:r crises where this dislindirm is cti!k;1l, l
hnve, folkwing the author's ;1.Jg[',!">tion, tYndercd diritto a$ "llw .iuridkal order" <1nd leggt
as "the law." - -Trans.
28
Chapter One
29
30
Chapter One
cites Romano precisely in the context of his critique of the liberal Rec!Jt.staat);
but while the Italian jurist wholly equates the state with law, and therefore denies
all juridical relevance of the concept of constituent power, Schmitt sees the state
31
of exception as precisely the moment in which state and law reveal their irre
ducible difference (in the state of exception "the state continues to exist, while
law recedes" [Schmitt 1922, 13/12]), and thus he can ground the extreme figure
of the state of exception-sovereign dictatorship-in the pouvoir conslituant.
1.11 According to some writers, in the state of necessity "the judge elab
orates a positive law of crisis, just as, in normal times, he fills in juridical
lacunae" (Mathiot 1956, 424). In this way the problem of the state of
exception is put into relation with a particularly in teresting problem in
legal theory, that of lacunae in the juridical order [il diritto] . At least as
early as Article 4 of the Napoleonic Code ("The judge who refuses to
judge, on the pretence of silence, obscurity or insufficiency of the law,
can be prosecuted on the charge of denial of justice"), in the majority
of modern legal systems the judge is obligated to pronounce judgment
even in the presence of a lacuna in the law [ Ia Iegge J. In analogy with
the principle according to which the law [ la Iegge] may have lacunae,
but the juridical order [ il diritto] admits none, the state of necessity is
thus interpreted as a lacuna in public law, which the executive power is
obligated to remedy. In this way, a principle that concerns the judiciary
power is extended to the executive power.
But in what does the lacuna in question actually consist? ls there truly
something like a lacuna in the strict sense? Here, the lacuna does not
concern a deficiency in the text of the legislation that must be completed
by the judge; it concerns, rather, a suspension of the order that is in force
in order to guarantee its existence. Far from being a response to a nor
mative lacuna, the state of exception appears as the opening of a ficti
tious lacuna in the order for the purpose of safeguarding the existence
of the norm and its' applicability to the normal situation. The lacuna
is not within the law [la legge] , but concerns its relation to reality, the
very possibility of its application. Tt is as if the juridical order [ il diritto]
contained an essential fracture between the position of the norm and its
application, which, in extrme situations, can be filled only by means of
the state of exception, that is, by creating a zone in which application is
suspended, but the law [!a legge] , as such, remains in force.
Forc<--of:.
2
Force-of-1At
33
its factual substance, th<lt is, in its core it cannot take a ju.ridka1 form1'
t
excepti on was made by Carl S<.:hmitt 1 essentiaUy jn the books Dictatorship and , one )'t""rtr later, Political Theology. Because these two books
from the beginn i n g of the 1920s describe-with a, so to sp ea k inter
ested proph esy-a paradigm (a ''form of go vernment" [Schmitt 1921,
juridica l contf'Yt''
1-3/12),
that has not only remained cmrent but has today reached its full
.
deveJopmenl. it is necessary at this point to present the fundamen taJ
with i n the law is someth i ng that is essentially exterior to it, thal is,
is essen -
"sovere
reaches its, so to- speak) crHical mass or mel tin g poi nt. The terms
ofsiege can
nothing less than the suspension of the juridi cal order Jtself {hence the
J:>1iU exists) .
. .
{ Rechtsverwirklichung)
mately has the function of creating a st ate of aft3 irs .. in which th e law can
he reaJjzed"
suspended in its applicati on "v.t i thout thereby cea sing to remain in force,
b ec ause the suspens ion sign ifies solely a concrete excep ti on"
(137). On
the ernphasjs shifts, at least app<1 rently, from a d efi ni tion of the excep
In both books, the telos of the theory is the inscript ion of the state of
exception within a juridical con text. Schmit t knows p erfectly well that
because it brings about a " su spension of the entire cxistingjurid i cal or
der" ( Sdunitt 1922, 13hz), the state of exception scents to "subtract itself
34
Chapter Two
Force-of-
35
power is not, however, "a simple question of force"; it is, rather, "a power
that, though it is not constituted in virtue of a constitution, is neverthe
less connected to every existing constitution in such a way that it appears
as the founding power, . . . and for this reason it cannot be negated even
if the existing constit11tion might negate it" (137). Though it js juridically
anchorage to the juridical order. But precisely because the decision here
concerns the very annulment of the norm, that is, because the state o
The sovereign, who can decide on the state of exception, guarantees its
realizing that this theory acqt1ires its sense solely on the basis of the theory ofthe
state of exception already elaborated in Dictatorship. The rank rmd the paradox
of Schmitt's concept of sovereignty derive, as we have seen, from the state of
exception, and not vice versa. And it is certainly not by chance that Schmitt had,
in the 1921. book and in previous articles, first laid out the theory and praxis
of the state of exception, and only later laid out his theory of sovereignty in
Politiml Theology. There is no doubt that his theory of sovereignty represents an
attempt to anchor the state of exception unequivocally to the juridical order, but
the attempt would not have been possible if the state of exception had not first
been articulated within the terms and concepts of dictatorship and, so to speak,
"juridicized" tl;rough reference to the Roman m::gistrncy and then through the
distinction between norms oflaw and norms of realization.
2.2
within the body of the law a series of caesurae and divisions whose ends
remain within the framework of the juridical [im Rahmc11 des .furistis
do not quite meet, but which, by means of their articulation and oppo
36
Chapter Two
3-7
Forceof-J::aW.:
'H1ke on the one hand the opposition between norms of law and
It can g{:ncrally be said that not only la nguage and law but a1J social institu
mar, in producing a
speech without
a language from discourse, and Jaw, .in suspending th concn:tc custom and
1921,, 137). That is) commissa rial dictatorship represen ts a s tale of the law
i n which the law is not appHed, but remains in force. Instead sovereign
patient
,rlcvr be d:..
gram
norm, so
praxis fmm its concrete exercise and thereby creating that excrss of signification
over denota1 ion th,lt Levi-Strauss was the first to recognize.. In this senr;e, the
floating signifier-this guiding concept in tfu: human sdences of the twen tieth
century--com,\.o;pond to the state of exception, in which the norm is ln (nn:e
witho11t
rived from the conlent of a norm without a re mai nder (rest!os) (Schmitt
1922, 9/6). In the decision on the state of exception, the norrn is Slri:i
2.3
pen dccl or even annu!Ied; but what is at issue in this suspension is, once
again, the creation of a situation that makes the ar:tplication ofthe rwrrn
[gelte1t] must
be brought about'' (13/13). That is, the state of exception sl':pan'ltcs the
norm from its appl icati on in order to make its application possible, It
but the fact that that no one alternpted to analyze the seemingly
introduces a zone of anomie into the law in order to JT1ake the effective
regulati on
formula that gave the text its title is an indication not only of
also of the latter's decline,
tradition in Rom an
place where the opposition between the n or m and its realization reaches
and rncdicval l aw, where {at least beginning with Justini an's /)igests, De
has the generic sense of dlicacy, the capacity to bind. llut only in the
[The
to indicate the supreme value of those state acts dechmd by tlH repre
Just
so is the
fi{)fm
.
suspensiDll of
of 1791, force de loi <.ksign<:lhs the untouchability of the .law, which even
t he sovereign h lmself can neither abrogate nor modify. I n this
modern doctrine distinguishes
rests <lbsolutdy with every valid l egisla tive act and consists in t he pro
Force-of-L
38 Chapter Two
force superior to the law (as in the cas-e of the constitution) or interior to
it (such as the decrees and regulations issued by the txccutive) tQuadri
1979> lO),
39
force of law
The decisive point, however, is that j11 both modern and ancient doc
trine the syntagma force o_flaw refers in the 1echnical .seuse not to the law
b u t to those deCrees (which, as we indeed say, have the force ofJaw) that
the executive power can be <mthoriz<.d to issue in some sitnation.s, par
ticularly in the state of exception. That is to say) the concept of ''force of
it acts in
demcnl and
This is nn:dsr.lv the: problem that
Vv"C
must try to
law;' as a technical legal term, defines a separation of the norm's vis obli
sovereign beg i n s
2.4
a fal se
to issue acts that tend increasingly to have the value of laws) Roman
doctrine says that these acts have the "force of law'' (Ulpian, in
1,4.1: qiwd principi placuit legis habet vigoretn lbecau)le it pleasd the
ones that underscore the formal distinction between the h1ws and the
writes
vitem ohtine:-tt I let i t
tak( the place of1aw] 1 a n d Pompon ius wri tcs pro le:;;e servetur
it serve
for lawj ).
'
I n our discussion of the state of exception, we have encmml<:red nu
merous examples of this confusion between acts o ftht.' t-xecutive powtcr
and ads of the legislative power; indeed, as we hav-e seen, such a con
fusion defines one .of the essential fha racteri.stks of the state o (
Hon. (The limit case i s the
tired ofrepeating, "the words ofthe Fuhrer have the force oflaw
zeskruft]);"
exttmple
<'IS
tbe mist<tke here is that the rd,;tion between the particular case
and the norm appears as a
Once
operation.
lmguagc is illtm1inating: In the relation
(and <11l the more so in the case of
virtual reference to
concrete reference
the state (jf exception is less the confusion of powers, which has been
to a segment of reality (that is. nothing less than the question of the ae
tna! relation between l a nguage and wodd). This possagc from langue to
or from the semioti-c to the semantic) is not a Jogknl ope r:: tion at
the norm is in force f vige] but is not applied (it has no ''force"
o n the other, acts that do not have the value
its "force."
a revolutionary
rathet\ it always erita ils a practical activity> that is, the assumption of
more speaking subjects and the impk-mentation of fhat
In
norm, reference to the conctctc case entnHs a ''trial" that a.lwt;ys involves
4;>
Chapter Two
all of it to yourself]
i n the case oflaw, tht application of a norm is in no
way contained within the norrn and cannot be derived front it; otherthere would have been Do need to create the grand edifice of trial
law, Just as between
and world, so between the norm and its
application there is no internal nexus that allows one 1-o be derived im
mediately from the other.
In this sense, the state of exception is the opening of a space in which
appHcation and nonn reveal their se-p;ltation and a pure force --otla-w::
realizes (that is, applies by
to apply (dis-appliamdo]) a norm
whose application has been &1.1 spci1ded. l'n this way, !he impossible task
of welding nnrm and reality together, and thereby constituting tlJe nor
mal sphere is carried out in the form of the exception) that is to sByl by
presupposing their nexus. This means that in order to apply a norm it is
ultimately nccessJry to suspend its npplkation, to produce an exception.
In every cast\ the st<'lte of exception marks a 1hreshold at which logk and
praxis blur with each other and a pnre violence without logos claims to
realize an cnundation without any real refrence.
3 1\ Justitium
puhfimm
opcmmiplt dent ne
respuMica
,/
fustititrm
Chapter Three
4'2
ofsdf-deft>nse
}t The Jefini1ion of the concept of tumult!I$, particularly in comparison to war
(bellum), has led to debates that are not always pertinent. Tht corme<:tion he"
tWf'('H
no
acquires a right of selfdefense in those urgent sifuatlons i n which the protect inn of the com
there is also a right o fself-defense for the state .and lOr ev-
an irreducible difft:r'"
ter
flltmiltu:; shows that though the cause of a tumult can be (but is not
un external war, the term tedmic:11ly dcsignnle>s the st<t<: of di
in
breaks down. Though in a certain St"Tise it. stands outsidt
.
ical fun...!ion
e best he
flegittima
43
ror I han tbe thing] [Livy 10.4.2 in Rome), This confusion between cause and
eff!,!cl is dear in the definition fimnd in the Latin dictioonrit.s: bd!1tm
1:
Mommsen's affirmatio n of
a theoretical
687-88).
the state of exception's
ch;nacter and his doubts about the very possib!Uty of presenting it the
certain hesitations and inconsistencies in his
discussion that are surprising in
[693j), and
though
nf vicw
h1w,
measures mav
btlfllm and
of
on
tumultus
and state of
th..: nmstitu tional sy6"tcm in the time of the Gracchi, and he adds that
"in the last cent.u ry of the Republic, the Senate's prerogative to exercise
the other.
lt cnn come as n o
by Pl.aumann
invested with a flo<.t ting and. anom<llous imperium that resists deilnitjon
In th1s
(3: 1243"-
i n hi:> ROmi
44
Justitium
ChHpttr Three
45
like
It, disappears on its own with the cessation of the Janger. (Mommsen
p oi nt of view. He writes,
Ifalready the mention o f the tribtmes o fthe p eopl e and the provincial
ultimum] as
a call to the
to energetically
33
provoked by Han
ex-consuls, and ex-censors as
sumed imperium
and retained it until the withdrawal of the
enemy. As lhc caH to the censors a!so
exceptiomd prorogation of a
omce, which, moreover,
the Senate could not have ordered in this form. Rather, thi.'se senatus consu!ta cannot be
tlom a juridico"forrnal standpoint: it
that has until now passed nea rly unobserved," is interest ing fOr a num
ber ofreasons. Nissen is the .6rst to see dearly that the u.snal understand
Senate, as the
Cicero addresses the Senate with these words: tu m uftu m censeo dccerni,
munily1 adds only the counsel that the now permitted and necessary
standsfeldlurren l stands
iustitiurn indici,
The
published the mono grap h Das l11sititum . .l:'ine Studie auy dcr r{imisdwn
is the formula
that, <Kcon:liug 1o Nissen, both defmes the term iustitium and translates
the law :md, in lhL-. wuy, all
it to the letter. The iustitium
prescriptions are put out of op era tion. No Roman citizen, whether
46
Chilj>ter Three
IwJitimn
connecti on
47
between tu
tus1 whid is
most extrcJDc situations the law was set aside. Instea(l of transgressing it)
total suspensifm of law) w<s excessive, for tlH rnag]stratc could not indepen
dccred by the
dently rcleas{: himself from the restrictions of the laws, 'l1'H1s !'ehahilitatiug tl1e
old in lcrpretation of the itstitium as a court ho]iday, Middell lets the me,aJling
a institium''
when) in the
!j38 ]).
of the ins.titution slip away from him. For whoever may have been the person
technically qunlitied to proclaim a iustitiwn, it is cerlain !.hat it was
only declared
ex
auctoritate patrum
presupposes the
3.4
tet us try to
tium. These arc not categories of criminal law but of constitutional law,
and they designate "the caesura by means of which, from the point of
analyses toward a
iustitium as
f Ausnahltletrn:ljlregeln] may be
susnension of the
from other consulta is obviously the adjective ultimus, which appears not to
have received due attent ion frotn scholars. That this term has a tc\:hnknl value
is demonstrated hy the fact tl1atwc find it repeated as a definition ofboth tbe sit
uation
the cr:ms,ultwn (s<?uatus nmsultum u!timae ru:ccssitafis) <.tnd the
addressed to all citizens for th' salvation of the
it
tutional order.
dictator was
the suspension of the laws that restricted their action. Both Mommsen
anJ Plaumann are perfectly aware of this, anrl for this reason speHk not
of dictatorship but of '1quasi-dictatorship"; however) not only does the
!<.quasi" do nothing to eliminate the amhiguity, it i n fact contrib11tes to
the institution's being interpreted according to a manifestly erroneous
paradigm.
This is eqnally true for the modern state of excep tion. 'l'he confuslon
N: Midlicil's monograph (1SR7), published in Latin {though the modern au( Jmrs
from -reso]ving: the aporias of the state of excep tion . rn both cas.:s, the
are cited in German), falls far short of a profntmd rheoretkal nqu iry into the
error
48
Justitium
Chapter Three
49
izens (Livy 1.9.7); on the other hand, Cicero writes apropos of Scipio
lan Disputations 4.23.51). The iustitium seems to call into question the_
,
N In modern public law theory, it is customary to define as dictatorships the
totalitarian states born out of the crisis the democracies underwent after World
War One. Thus Hitler as well as Mussolini, Franco as well as Stalin, get indiffer
ently presented as dictators. But neither Hitler nor Mussolini can technically be
defined as dictators. Mussolini was the head of the government, legally invested
with this office by the king, just as Hitler was chancellor of the Reich, named by
the legitimate president of the Reich. As is well known, what characterizes both
the Fascist and Nazi regimes is that they allowed the existing constitutions (the
Albertine Statute and the Weimar Constitution, respectively) to subsist, and
according to a paradigm that has been acutely defined as "dual state"they
placed beside the legal constitution a second structure, often not legally formal
which he does not further identify, while for Nissen there remains a Be
ized, that could exist alongside the otherbecause ofthe state of exception. From
such regimes, just as, moreover, the clean opposition of democracy and dicta
Staatsrecht).
It is from this perspective that one must also view the impossibil
ity (common to both the ancient and modern sources) of clearly defin
ing the legal consequences of those acts committed during the iustitium
with the aim of saving the res publica. The question was of particular im
portance, for it concerned whether the killing of an uncondemned (in
tum ultimum can be punished (De oratore 2.31.134). Nissen, for his part,
denies that either the magistrate who had acted in execution of a senatus
consultwn or the citizens who had followed him could be punished once
This anomie space that comes to coincide suddenly with the space
the iustitiwn was over; but he is contradicted by the fact that Opimius
o the city is so peculiar that it disorients not only modern scholars but
also the ancient sources themselves. Thus in describing the situation cre
ated by the iustitium, Livy states that the consuls (the highest Roman
Catiline conspiracy.
35
50
Justitium
Chapter Three
and decision. The state of necessity is not a "state of law)" but a space
without law (even though it is not a state ofnature, but presellts itself as
the anomie that results from the suspension oflaw).
In tntth, the entire question is poorly put, for the aporia becomes
clear only once we consider that because they are produced in a juddi
cal void, the acts committed during the iustiti11111 are radically removed
from any juridical determination. From a legal standpoint it is possihle
to classify human actions as legislative, executive, or transgressive acts.
But it is entirely clear that the magistrate or private citizen who acts dur
ing the iustitium neither executes nor transgresses a law, and even less
does he create law. All scholars agree on the fact that the senntus consul
tum ultimum has no positive content; it merely expresses a counsel with
(2) This space devoid oflaw seems, for some reason, to be so essential
to the juridiccll order that it must seek in every way to assure itself a rela
tion with it, as if in order to ground itself the juridical order necess<rily
had to maintain itself in relation with an anomie. On the one hand,
the juridical void at issue in the state of exception seems absolutely un
thinkable for the law; on the other, this unthinkable thing nevertheless
has a decisive strategic relevance for the juridical order and must not be
allmved to slip away at any cost.
(3) The cruciJ] problem connected to the StlSpension ofthe law is that
ofthe acts committed during the imtitium, the nature of which seems to
escape all legal definition. Because they are neither transgressive, exec
51
!:
r
,,
'
t ''
I
4.1
[:
53
!
})
'
-.
the Archil, Schmitt could not easily have missed a text like "Critique of
Violence," which, as we will see, touched upon issues that were essen
tial for him. Benjamin's interest in Schmitt's theory of sovereignty has
always been judged as scandalous (Taubes once described the 1930 let
ter to Schmitt as a "mine that can blow to pieces our conception of the
intellectual history of the Weimar period" [Taubes 1987, 27]); turning
( --
:-
'
4.2
German term Gcwalt also means simply "power") that lies absolutely
"outside" (aujlerhalb) and "beyond" (jenscits) the law and that, as such,
'
i-
l'
2-i
t!
t
'
t
1:(
(J;
-
54
Chapter Four
55
56
Chapter Four
this world, and from it the baroque extracts a profusion of things that
until then eluded all artistic formt1lation . . . in order to dear an ulti
mate heaven and enable it, as a vacuum, one day to destroy the earth
\Vith catastrophic violence" (246/66).
It is this "white eschatology"--which does not lead the earth to a rr:
deemed hereafter, but consigns it to an absolutely empty sky-that con
figures the baroque state of exception as catastrophe. And it is again this
that attributed in the world to the God of the Cartesian system" (Schmitt
1922, 43/46), in Benjamin the sovereign is "confined to the world of cre
ation; he is the lord of creatures, but he remains a creature" (Benjamin
ception, is precisely the place where the fracture that divides the body
of the law becomes impossible to mend: between Macht and Vcrmiigcn,
1928, 264/ss).
This drastic redefinition of the sovereign function implies a different
situation of the state of exception. It no longer appears as the threshold
that guarantees the articulation hetween an inside and an outside, or be
tween anomie and the juridical context, by virtue of a law th<Jt is in force
in its suspension: it is, rather, a zone of ahsolutc indeterminacy between
anomie and law, in which the sphere of creatures and the juridical order
between power and its exercise, a gap opens which no decision is capable
of filling.
This is why, with a further shift, the paradigm ofthe state of exception
is no longer the miracle, as in Political Theology, hut the catastrophe. "In
antithesis to the historical idea ofrestoration, [the baroque] is faced with
the idea of catastrophe. And it is in response to this antithesis that the
theory of the state of exception is devised" (Benjamin 1928, 246/66)
An unfortunate emendation in the text of the Gcs(Jmmcltc Schriften
has prevented all the implications of this shift from being assessed.
Where Benjamin's text read, Es gibt eine btJrocke Eschatologic, "there
is a baroque eschatology/' the editors, with a singular disregard for all
philological care, have corrected it to read: Es gibt keine . . , "there is
no baroque eschatology" (Benjamin 1928, 246/66). And yet the passage
that follows is logically and syntactically consistent with the original
,
57
reading: "and for that very reason [there is l a mechanism that gathers
and exalt-s all earthly creatures before consigning them to the end [dem
Ende]." The baroque knows an eskhaton, an end of time; but, as Ben
jamin immediately makes clear, this eskhaton is empty. It knows neither
redemption nor a hereafter and remains immanent to this world: ''The
hereafter is emptied of everything that contains the slightest breath of
<;8
Chapter Pour
"fictilious" to a state
torship, which should have led to lhc defm itjve aholition of the Wcim<lr
Benjamin once
impossible a s long as every kgal order is_scen "only a s a latent and intcr
miltcnt dktatorship): (SduniH 192J, xiv) To
.
order
to turn
"in which we
59
there
is
a :t.on e
annex anomie
excellcr:rce, which daims to maint aln the law in Jts very "mpeH::iHl
ror:ce-ot-_l<W-- What now takes its pJace are civil war and revol utionary
VVhen the exception becomes the rule, the n1ach ine can no longer func
violence, that is} a human action that has shed r deposto J .;:very relation
to law.
eighth
the
anomie zone is the relation between violence and law'"in the lasl anal
ysis the status of violence-as a cipher for human action. While Schmitt
attempts every time to reinscribe viol en ce within a juridical context ,
state
on
and Schmi t t
4.6
For reason,-; that we must try to clarify, th is stn1ggle for <momie seems
to be as decisive for Western politics as the
sias, the "battle of ginnts concerning being that defines \'\'estern meta
,"
as the
6o
Chapter Four
must ensure the re]ation between anomie vio]ence and law, is the coun
terpart to the onto-theo-logical strategy aimed at capturing pure being
everything happens as if both law and logos needed. an
anomie (or al<lgi,:al; zone of suspension in order to ground their ref
erence to the worl d of life. Law seems ahJe to snbsist only by captu dng
as
GUl subsist onl}' by grasping the nonlinguistk.
In both cases, the conflict sem s to concern an empty space: on the one
hand) anomie, ju ridica l v1CUiH11) an d , on the other, pure being, devoid
of any determi nat} ()n or real p red icate . For law, this empty space is the
state of exception as its constltutive dimension. The relati.on betwe(n
norm and renlity involves the s uspesion of the norm, just as in onto)
ogy the relation between language an4 world involves the suspension of
denotation in the form of a langue. But just as essential for the j uridkal
orde.r is that this zone-wherein lit:.s a human Bction without relation
to the norm-coincides with an extreme and spectral figure of the law,
in which law splits into a p11re heing.-in-for..;:e [vigenza] without appH
cation (the forrn of law) and a pure application without being in fOrce:
I he force-of,lm\(.
[f this is true, then the structure nf the state of excepti on is even m ore
complex than what we have glimpsed ofit up to now and the poitions
in ..and for it are even more tightly WO
of the two sides that
ven into each other. Aud jusl as the vic lory of one player in a sporting
match'iR not
Uke a n originary state of the game that must be
restored, but only the stake ofthe game (which does not preexist it, hut
rather results from it)} so pure vio1 crice {whkh is the name Benjamin
gives to human action that nelther makes nor preserves law) is not an
origi:nmcy Jfigrm of hum.:'"ln action that at a cert.-1..in point is ca1tured and
inscribed within the juridical ordt'l" (just as there is not, for speaking
pr cl i rlgtli stk reality thai at a certain point falls into bnguage). It
js) rather, only the stake in the conflict over the state of exception, what
results from it .and, in this W<:lY {)nly) is supposed prior to the law.
61
varies
47
192!, 1791236).
meaning
Here appears the topk- which flashes up in the text only for an in
stant, but is nevertheless sufficient to illuminate the entire piece--of
62
Chapter Four
63
4.8
hill on which the castle is built" (Benjamin 1966, 618/453). Kafka's most
proper gesture consists not (as Scholem believes) in having maintained
a bw thot no longer has any meaning, but in having shown that it ceases
to be law and blurs at all points with life.
In the Kafka essay, the enigmatic image of a law that is studied but no
longer pr3cticed corresponds, as a sort of remnant, to the unmasking of
mythico-juriclical violence effected hy pure violence. There is, therefore,
still a possible figure oflaw after its nexus with violence and power has
been deposed, but it is a law that no longer has force or application, like
the one in which the "new attorney," leafing through "our old hooks;'
buries himself in study, or like the one that Foucault may have had in
mind when he spoke of a "new law" that has been freed from all disci
bate between Vyshinsky and Pasbukanis.) These are the questions tbat
64
Chapter f!;;;ur
of the ''nt.'iV
Obviit is not a question here of a transitional phase that never achieves
toward justice is not the erasure oflaw, btJt its deactivation and inactivity
is) anoth'-r use of the law. This is precisely what the
the law\vorking
5.1
Roman .,;cholars :and legal historians have not yt:t been able to find a
tetm iusti tium--the technical desi gnadoi1 for the state of exception-to
acquire the meaning of public monrning for tht. death of the sovereign
One dny h u manity wlH play with law just as children play with dis
used objects, not in order to restore !.hem to their canonical nse but to
free them from it li:)r good. VVhat is fou n d after the law is not a more
original use valne that precedes the Jaw, but a new use that is
born on!y after it. And use) which has been contaminated by law, must
also be freed from its own value. This liberation is the task of study, or
of play. And this studious play is the passage that a.ll ows us to arrive at
that justice that one of Benjamin's posthumous (ragments defines as a
state of the world ln which the world appears as a gnod tha1 absolutely
cannot he appropriated or made juridical ( Bcnj;nnin 1992, 41}
e nt irely
as
as
study of G:crm<1 nku.!i 'S fu neral, VVillia m Seston wrote, "the debate was
rather lively, but soon nohody thought about
155 ] . ) But how d i d this term that Wii: used in pnO!ic law to
the
1980)
I L S, Versnel attempted to
.a
66
Chapt'."r Hve
Suicidr (1B97)
collapse"
(58 5),
is as
lo he regulat_:d in
pa i nful
But when a
rJ,cs in the cmvc of sniddcs which we h ave pointed out . , , , AnomiE', therefore,
Thus, n<Jt only is the correspondence between anomie and anxJety taken fol'
(while, as we will see,
The total effects of n1ourning (e.spedally for a chief o r king) and the
19801
corre
inlluencc on indivitiuals
and a rise i n the suicide rate. This was tantamount to postnl;H inr::: (as he does
of
19So, 584-85). According to Versncl, who here dtes the analyses of the
American sm iologists Berger and Lud.;,man, "All sodet.ies I'II'e construe
actualized whenever tht: legitimations that obscure the precariousness
the concept
67
,5.2
poHttcal
Scston
as a state of exccplion:
the memory of a nwhlli:ration. . . .
1962,
nmnmg1 and the nexus between the two forms of iustitium is accounted
for by once again presupposlng that which was to be explained, that is>
an element ofmournlng implicit in the iustitium from thc st..trt (172-73).
It is Augusto Fraschettfs achievement lo have underscored> in his
monograph on Augustus, the politica] significaw:.e
shuv,ring that the H n k between the two asp("tts of the iwtitium lies not i n
a presumed character o f mourning i n extreme situations o r anomie hut
meamOf
in the tunmlt that the sovereign)s funeral can cause. Fraschetti recov
ers its origins in the violent riots that had accompanied' the funera.ls
68
Chapter r:ivc
the state
1990,
Just as the iustitiwn was the na l tm.ll response to
turuult in the Repuhlic<.n era "it is clear how the i:ustitium comes to be
identified with llllhlic mourninl! throueh a similar strategy,
the person of
to be lhe concern of the res puMfca" {57). Praschcui re adily shows how,
in conformity \v:ith this s trategy, Augustus, begin nin g with the death o f
h is neT'lhew Mar.zellus, would proclaim a
-iustitium
ate the state of exception by transforming it into a family affair. But the
connection is even iUOI'( intirnate an d complex.
53
empsukhos ),
as ('HvJng law"
same years th at see the rise of the p r lncipat c. The formula basfleus nomos
emp<>ukhos is found in Diotogcnl"s's treatise on sovc!ei!5J1ly,
p a rt ! ally preserved
d eath at Nola on Au gust 19 of the year 14 CE. The old sovereign sur
having his hair comb ed and his sagging cheeks made up, seems
concerned to know whether he has acted the mimus -v--itae, the tarce o f
his life)" welL A.ncl yet alongside thiS insistent theatrical metaphor, h e
stubbornly and almost insolently continues t o ask
yet nevertheless perfectly consist ent-is divided into three poi.n ts:
"The king is the most iust
(identidem
!s fiJisset, "lf there wa;. now a tumnh outsi de that con cern ed him!'
nj ustified philologically]."
'''The just is legitimate, and the king, havi ng become the cause of the
just, i> a livi ng law" (L. Delatte 1942, 37 ),
Th-at the sovereign is a living law can only mean tha t he is not bound
tus and Justitium is still pre.<;ent, but the tum ul t now co in cl des with t be
death of the
genes explains this a l ittle later with unequivocal clarity: "Because the
the funeral ceremony. ll is as if the sovereign , who had absod)ed into his
";)nlYlHt, nt>h:mn all except ional powers (from the
is himself
a l iving law} he is like a god among men" (L. Delatte 1942) J9). And
predsely because he is ident ifitd with tlu.7 law, he is hel d in relation to
it and ls indeed p o.<:fi ted as the anomie found a t ion of the Juridical order.
inal form of the nexus that the state of exceD tion es t ablishes between
is
70
Chapter Five
an outside and a n insid e of the law, and .in this sense it constitutes the
sovereign is a tyrant, the magistrate is not in confOrmity will1 tht; law and
Paut's
sovereign, with
sovereign 1, indeed,
law"),
54
Bel:(m.: assu min g its modern form as a decision on the e-mergency, the
anomie. Because he is a
and
us
On
for
ria and SahtrnaHa of the dassical world and lhe ch >1 riva ri and Carnival
an Alexandrine Jew
were
ill thE fitsf century of our era is corted, it is .:erlain that we are
with a
seek
unbound
text this
Tn
hctweeu the lnw nnd the sov.:reign leads to the division of !he b\V in!o a hiertr-
and a 'Written bw
iaw (Homo.-:
(g;cm.nnw)
animals, m asters serve their slaves, males and fem,lles exchange n::>lcs,
a nd crjminal behavior is cono.;ided iicit or, in any C<iS<\ nDt punishable.
That is, they inaugurate a period of anomie that breaks <.m d temporarily
subverts the sodal order. Scholars have always had diftlcuhy explain
these sudden anomi e explosions within well-ordered societies and,
above all, why they would be
authorities.
of an
arkhiJn {the
wllo
civil
Contrary lo those int<:rp retations that traced the ano mi e feasts hack
to agrarian cycles tied to the solar cJlcndar {:tvlannhardt, Frazer) or to a
periodic functkm ofpurification (Westermarck) , Karl MeuH, with a bril
liant intuition, 1nst.ead
an-
have long been familiar with those periodic feasts (such as the Antheste
ctud ritual in
which
72
Chapter Five
73
from the community, their houes unroofed and destroyed, and their
1vells poi soned or made brackish, The harlequinadt''S described in the
unpreceden ted chatiw:tfj of the Roman de Fauvel (Li un montret san cui
au vent, I Li autre rmnpet 1Jfl rwvent, I L'un mssoit ferw<:tres et hu1B, I
le sel nu pui.t I f/un gctnit Je bren aus visages; I 'Jlop estoicnt
/es et sauvnge.s [One showed his ass to the l'l'ind, I Another smashed a
'
l
f,
I One broke windows and doors, J Anoth er threw salt in the wells,
can
be sai d for the acts of harassrnent com mitted du ri ng masked feasts and
children's begging rituals in which children
whoever denied
their obliga tion to give a gift wlth acts of violence that HaUoween
distantly recalls.
':!
:i
'
fe<l.Sts does n ot refer back to ancient a gra rian ri tes, \vhid.1 ln t h m selves
jA
and the m ost unbridled anomie shows its parodk connection with d1e
nomos, I n othe r words, they point toward the real state of excevtion
as
ing) law and an om ie show their distance and, at the same timej their se
cret soHdarity, It is as if the
amj
tensions: on e that goes from norm to ano m ie) and ano1her that leads
country
the cycl i ca l masked feasts and t h eir extreme offshoots, lhe traditional
children's begging rituals; on e may therefore i m m edia tely draw u pon
these for an interpretation of charivari-like ph enornena . A doser
analysis sh ows that what at first si ght seemed s im ply to be rough and
show-ing the
from anomie to the l aw and the rul e. Hence a double pnradigm, wh ich
marks the fteld
leads to tlh: stat of exception or the idea of the sovereign as l i vin g law,
in which a
of life.
75
to define the pre:sidtnt of the Reich's nentra l powt'T i n the state ofxcep
tion by dialecticallr opposin g rmctoritas an d potc3tas. After recalling that
madon
and referred
the
had rmrtoritas;
patrum. Indeed, .it is wdl known that in Rome the term des ignating the
Senate's most pmrer prerog<1tive was neither impcrillnr nor _potr::stas, but
Festm'>e for
noted that the
tbe ongmary
conceived ihdr
communal lite"
that has led to the !immtion of tho p olitic a l order of m odem ity" (JJ3),
VVhat we
now try to understand is th e me;ming of this "confl1t>ion"
"What Is Au th ori ty? " with the observat ion that authority h ad
from the modern world1' to su ch an extent that i n the ahsence ofany "au
l hentk a nd indisp utable' experien<:e of it1 "the very term has become
clouded by controversy and confusion" (Arend t 19611 91). There is per
no better confirmation of this confusion---and of the ambiguit ies
that it enta i ls-than the fart th a t Arendt undertook her reeval uation of
a f<'wycars a Ocr Adorno and Else Frenkel-Brnnswick had
condu(ted their frontal attack on ''the a uthoritarhm personality." On the
in forcefully denouncing "the liberal identification of total
itarianism with authoritarianism" (97), Aren dt probably did not realize
that she shared th is denu ndation wi th an au th or whom she C(rtainly
dislike-d,
mue,u, in 1931, in a book bearing the signific an t title Der Hiiter dcr
N It is
Roman,
an
un-
Dio Cassin,
t'Kcclknt knmdedge ofRorn<1n law, does not say that the term is
lm
pos::;ible to tnmslate; he says rfl1 her, that it omnot be translnted krllhopax, "onn
and for all" ( hclfCnisai auto kathapnx ndwmton csti [R,wum t-fislory 55-.;v:] ) . The
implicntlon hen is i'hat it mnst be rendertd in Greek with a different term
time, depending on the
each
6.2
76
Chapter Six.
law.
and
our an alysis
It will be best to
back to
ln the Sllh ere of
It has been righ tly noted that aur:torita:; has nothing to do with repre
the
two as-pects
to act as a representative
that is, the person sui iuris (the pater famiiias) who intervenes--
pronoun cing the technical formu la auctor fin [ l a m made auctot]-in
s pater. ln the same way, the act of the seller who intervenes as auttor
order to
tor,
confer legal Vlllidiry on the act of a subj ect who cannot inde
p end en tly bring a legally valid act inro being. Thus, the auctoritas ofthe
tutor makes valid the a-ct of one who lacks this cap ac ity and the auc
,
i1 something which already exists but the net of pmdudng from one's
ln truth, th e
breast; a creative ad) ( Be fl:veniste 1969, 2:
two rneanings are not con tradictory a t aiJ in classical law. Indeed, the
Greco-Roman worl d does no1 know creati o n ex nihilo; rather every act
of creati on always involves sorneth ing else fo rm less matter m' i ncom
creation
or made to grow.
being-that must be
{of the minor or the incompetent): it spri ngs directly from his conditiqn
,
he adds, "be
and
aucto r sum
[I am auc-
own
as every
errecuve1y written,
self; whether it
a uthorizes or
author is alwavs a
coauthor.
A&
that it valid ates (MagdelaJn 1990, 68s). It is, then) as if for omething to
''
6.3
As we have seen, in
p ublic law
observed that
a cti on of it<> mvn bnl can act only in concert
with the magistrate or to complet e the decisions of poputar comitia
th e Senate does not hnve an
to them
But where does the ''force" of the auctor come from? And what is. this
j)ower to augere?
ever
seems
fie .. the magistrates!"; i n the ex treme case of the senatus consu}tum ultim um, the formula is
m o re em ph atic: videant consules
the consuls see to
pe cu liar character of
78
Chapter Six
auctoritas when he writes that it is "less than an order and more than a
counsel" (Mommsen 1969, 3: 1034).
It is certain, in any case, that auctoritas has nothing to do with the
potestas or the imperium of the magistrates or the people. The senator
is not a magistrate, and we nearly never find the verb iubere [to orderL
which defines the decisions of the magistrates or the people, used for
his "counsels." And yet, with a strong analogy to the figure of the auctor
in private law, the auctoritas patrum intervenes to ratify the decisions of
the popular comitia and make them fully valid. A single formula (auctor
fio) designates both the action of the tutor that completes the act of the
minor and the senatorial ratification of popular decisions. The analogy
here does not necessarily mean that the people must be considered as
minors under the tutelage of the patres; rather, the essential point is that
in this case too there is that duality of elements that in the sphere of
private law defines the perfect legal action. Auctoritas and potestas are
dearly distinct, and yet together they form a binary system.
N' The polemics among scholars who tend to unify the auctoritaspa trum and the
auctor ofprivate law under a single paradigm are easily resolved if one considers
that the ann logy does not concern the individual figures, but the very structure
of the relation between the two elements whose integration constitutes the per
fect act. Jn a study from 1925 tharhad a strong influence on Roman scholars,
Richard Heinze described the common element between the minor and the
people with these words: "The minor and the people are determined to bind
themselves in a certain direction, but their bond cannot come into being with
out the collaboration of another subject" (Heinze 1925, 350 ). That is to say, it is
not that scholars tend to "depict public law in the light of private law" (Biscardi
1987, 119), but that there is a structural analogy that, as we will see, concerns
the very nature of the law. }midical validity is not an originary characteristic
of human actions but must be conveyed to them through a "power that grants
legitimacy" (Magdelain 1990, 686).
6.4 Let us try to better define the nature of this "power that grants
legitimacy" in its relation to the potestas of the magistrates and the peo
ple. What previous attempts to understand this relation have not taken
into account is precisely that extreme figure of auctoritas that is at issue
in the senatus consultum ultimum and the iustitium. As we have seen,
79
So
Chapter Six
states that they belong personally and exdusively to. tht:- ptHres privI
tim: "nobis
, privatim ausJ)icia
habra
6.5
of suspending law is
here is
that Mnnunsen was the first to notice. The syntagma senatus auctoritas
i used in a technical sense to design<Jte
can therefore not be executed (even i fi t was entered as such among the
official act.;;) auct(wffas perscripta), That is) the
app('<'rs in its purest and most perspicuous for m when it has been in
validated by the potestas of a magitrale, when it liw as mere writing in
absolute otmosition to the law's heing in force I vivenza I. I'or a moment
here auctoritcJs shows its essence: the power I potenza j that can at once
lcgit'imacy" and suspend law exhibhs its most prop.r character
at the point of its greatest Jegal inefficacy, It is what n::m ains of law if
law is wholly suspended (in this sense, i n Benjami n's reading of Kafka)s
allegory, not law but life-law that blurs at every point with life),
6.6
auctori-
patestatis
id
tmws titi
magistratu
although
l had no more potestas than those who were my colleagues in each mag
81
pace with the gro\ving "Ne.i ght thM the authoritarian principle
St1m.ing in the political life of European societies. 'Auctoritas.''
German scholar in
Tf we now return to the passage from the R.es gestae, the decisive
wjth those who are h i s colleagues in the magistr;:cy but in the vaguer
tetms of an audoritas. The menning of the name ''Augustus,>' which the
Senate conferred on h i m on January 16,
Sz Chapter Six
83
this daim: it comes from the same root as augeo and auttor and, as Dio
Cassius notes, "does not n1ean a p ntestas I dunamis 1 . . . but shows the
which one must interpret the fact tht.lt a signum to Vesta is d..dkat(d in
splendor
the hous e of
5J.lll. 2),
that, given the dose connection helwei:'n the cult of Vesta and the cult
of th e s<1rneycar, in whlch he declares his in-
As Magdelain
has acutely ob>erved the term auctor here does not have the
mea ning of "founder" hut the techn i cal meaning of ''g uaran to r in .a
go us In the house of Augustus" (Jrasch etti 1990, ;;9), Un like the l ife o f
. . the term
. Au gustus
<JS,
b the
and the
auctor o f the
of the rnagis
tratc--is not a m<gistracy1 but ;:,n extreme form of auctoritrts. Heinze has
form, whkh the individual enters into a n d whkh constitt1 tcs the source
of his power; mu:toritas, on the other hmd, springs from the person)
as something th;tt is const ituted through him, lives only in him, and
disappears ""th him" (Heinze 1921,
356). Though
magistracies. from
vvo
the distinction bmveen !!tltMrif(1s and pntestm to the problem ofthe ldr1g's two
bodies and the principle
it is
was
o closely hound
as sudt does not {;ntaii a pmblem of bodie.<; at aU: One rmgist rat<; stKce.ds
an
otlH:r '.vithont having to pn'Htppnst:> the immonality of the office. Only because
from
person, on!ybe..-:mse ln "august" life p11bHc and private have entered into
z.t1 ne
(wbich i.s
auctori!i!S).
'lb unde rst11 nd modern phenomena such as the Fascist Dure and the Nazi
fact whose importance has not yet been fully appreciated by scholnrs.
Djo Casslus i n forms us that Aug\IStus "maJe all of his house p nh llc i ten
the office of head of the governrw:nt and Hitler tb<1 t of chancellor of the Re
Mus...;;olini held
ich (just as Augmtus held imj)rrium rons(llare or potcstas ttihm1ica) neither the
Duce nor the F'ithrct reprl?l'en !s a cous:titutionaHy defin ed pnhlic nffke or mag
55.12.5).
Chapter Six
84
person
85
always orlgi nn ry and sprin gs from his p erson ; furthermore, in its essence
had
it .is not coercive, but is rather founded as
on coiJSent and th e free
of a ''superiority
6.8
Though both Triepel and De Frandsci had fascist and Nazi tech
the claim that aucforitas iuh eres immediately in the l i vi ng person of the
to grou n d the preemin ence or, in any case, the specific rank of auctori
aware that the power they describe attain's its app ea ra nce of original
ls,
life. lt is not by chance that this shoulcl h appen precisely in the years
to Foul's k!wris
CXCC!>titm.
through fascism and National Socinl ism. Though it was obvious that
there cannot be so me sort of eternal humnn type periodlcaHy embod
ied in Augustus, Napoleon, or Hitler, and that there are only more or
less similar l egal apparatuses (the sta te of exception. the iustitium, the
auctoritas principis1 FUhrcrtu m) tbat are put to use u nder more or Jess
and person al power o f a leader. Thus i n 1933, i n a short artide that seeks
leader and followers" (note the use ofWeberian co ncepts) . 1938 saw the
Heinrich Triepel's hook Die Hegemonic,
but on a personal charisma. The Filhrrr is defined throurrh Psvcholooiand creative will),
cal
the social group and the
a n d p ersonal character of his power
of the p ;uad igm of auctoritas). The norm can be appl ied to the norm<11
situation <-m d can be snspendcd without total!y annu ll i ng the j u rid ical
order beca use in the form of aurtoritas1 or sovereign decision) it refers,
immediately to l i fe it springs from life.
defin es
as
6.9
It i s pe rh aps possible nt this poi nt to look hack upon the path trav
el ed thus fiu and dr aw s ome p rovi sional conclusions from our investi
gation o fthe state o fexception. The ju ridical system of the West appears
86
Chaple; Six
ements; {)fle thlii t is normative and juddka] in-the strict sense {which we
1:!7
time. Indeed tht.. slate of exception has today reached its max imum
\vorldwidc depJoyrnent. Tht> nonnative aspect of law can thu.s be ob l iter
can for conveni ence inscribe under the ruh rk {lotrstas) a.nd one that. h>
anoniic and mctajuridkal (which \YC can call by the name uuctoritas).
but1 on the i)ther hand, ourtoritas can assert itself only "in the val
jdation or suSpen sio n of potestas, Bec.mse it results from the dialectic
the law.
the s tate
back
mately grounded
state of exception is the device that must ultimately articulate and hold
for at issu,_
di
to
or the fOrce oflaw) is still related to the juridical order and the
suspend the n orm has an immediate hold on life. As long as the two el
fi'ction accOfd.ing to which anomit {in the form of rwciorltas, living law,
to
there is no suhstantinl
ure, tv;o o pp05ite force;; act} one that insti111tes and makes, and one
distinct (as in republican Rome)s contrast between the Senate and the
cult
tend to coincide in a
per-
the machine that is leading the West toward global dvil war.
6.10
88
Chaplr Six
References
machine and not something that preex:ists it, just as law has no court in
nature or in the divine mind. Life and Jaw) :.womie and nomos, nuctoritas
and putestas, result from the fracture of something to whkb we have no
other acctss than through the fiction of their articulation and the
work that, by unmasking this fictiont sep11rates what it had dairned to
unite. Hu1 disenchantment does not restore the enchanted thing to its
original state: According to the principle that purity never Hes al the
disenchantment
it
Boc,;a, 1972.
con<1iiion.
law means to open a space between them for hUinan action, which once
claimed
Benjamin, Walter. 1_9:n Zur Krit ik der f;..,walt. In Tit:demann uml SchwcppenhiiuS:?r,
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J92S
reduced to merel y the power to negotiate with the law. The only truly
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and
Gtsammcltc .Yhriften, vol. 1, pt. 1. Trnn1a!ed by John Oshorne a5 111c Origin of Geruum
political action) however, is that which severs the nexus between vio
violence. ln Selccte>d
hi_<;tnry. ln Sf.!ected H'ritfngs, vnl. 4, l?JR- l')</f;l.. ('<L Howatd f:ibnd i\nd Mkhad \V
Bd.
Chinlgn: thrivo,witynt
t972- S9.
::';: :
Gesammdte Schr
c . ij/ nt
1994.
7 vol\. Ed. R0lfTiedemann
and Hermann
199:L N0then ;;n dnel:' Arbdt Ubicr die Kateg:orie der Gerechti!:',kf'lt J!mnkfurtcr
Adorn:; Blittt.r 4
j-
90
References
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Index
C:hantrmps, Camille, 13
Antigone, 28
Appius Claudius, So
Edonnrd, 13
Arangio-Ruiz, Gaetano, 29
Daladier,
Dante Alighicri, 26
Aulus Gellius, 41
de Gaulle, Charles, 14
De Martino, Francesco, 1
Derrida, Jacques, 37
Delatte, Louis, 69
So, 88
Benveniste, Emile, 39,76
Diotogcncs, 69-70, 71
Dossetti, Giuseppe, ro
Bethmann-Hollweg, The.obald
von, 26
Biscardi, Arnaldo, 78
Eichm;mn, Adolf, 38
Fleiner, Fritz, 16
Bodin, Jean, 75
Fontana, Alessandro, 1
Bonaparte, Napoleon, 4, n, 84
Forccllini, Egidio, 42
Brmm, Otto, 15
Fouc;mlt, Michel, 63
Brcdckamp, Horst, 52
Franco, Francisco, 48
Brlining, Heinrich, 15
Burckhardt, Walther, 16
Frenkel-Brunswick, Else, 74
Butler, Judith, 4
Cains Gracchus, 49
Fueyo, Jesus, 75
Catiline, 49
Cavnignnc, Louis Eugene, 12
Gndnmcr, Hans-Georg, 40
Chnrisius, 65
Gaius, 38
Germ;micus, 65
.
94
Index
rw.lex:
Mommscn,
\';mppt.'c, 0. E, 70
Mom, Ahl;t, 1S
Mnrtati, Coqnntino, t3
Mnsr.olini, Bt>nito, 48,83
Hanniha!, 44, 79
H,n:;chek, )u!:ius, 73
i fauriou, Maurice, 23
Hcim.e, Pichrmi, 7ft, 81, 1\2
Hindrnhurg, P11ul von, l)
Hi1, Edmml, 16
Hitler, Adolf, z, 14, 1_r;:, J8, 48,
4.8, 49.
Thcodor, 424;:, .p,
.
77-78, Sn, 81
U1pian, 3S
Srrwnd:, ludolph , )
St:10hr, Werner, 3
Sw!in, Jmt'ph, 48
Stifter, Adalbert, 61
Suetnniu, 68
VI/;1JjCUVOMt, H., 51
Tanbes, Jacnb, 53
"f1tiilmann, Ernx!, 15
Noai11C', Pierre, 77
"
58,
83,84
6&69, llo
Opimilh, Lv;;ius, 49
Wenger, Leopold, 81
Tjedcm;mn, Rolf, 52
Wcstcrm<1rck, Edward
'f"in!tslfl, Herbert, 6, 7,
Justinian !, :i7
Jdl!nek, Georg, 26
Kohler, Josef; 26
Knw, KarL 61
Vseudo-Archytns, 7o-71
Laval, Pierre, 13
Rmil, 52'
Lenin, V1ad}mir Ilyick 34
tb:i Stmu&s, Claude, 57
Lln ,oln, Ahraham, ?.()<.I.J
Qmulri, Giovnnn1, 3S
Ludnmnn, 1'hnrna!:, 65
Machiavelli, Nkcol6, 4 6
Saint-Bonnet, Franois, 1
Lede;eT,
61
Gn'Shom. <'3
Si:hiit:>, Antrm, 26
Scipio N<1ska, +'h 49
Turner, V. W,, 66
Wilsnn, WnodroN, .1
Ale-xander, 71
95