States of Exception

Law, History, Theory

Cosmin Cercel, Gian Giacomo Fusco, Simon Lavis, Cosmin Cercel, Gian Giacomo Fusco, Simon Lavis

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429663796
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

This book addresses the relevance of the state of exception for the analysis of law, while reflecting on the deeper symbolic and jurisprudential significance of the coalescence between law and force.

The concept of the state of exception has become a central topos in political and legal philosophy as well as in critical theory. The theoretical apparatus of the state of exception sharply captures the uneasy relationship between law, life and politics in the contemporary global setting, while also challenging the comforting narratives that uncritically connect democracy with the tradition of the rule of law. Drawing on critical legal theory, continental jurisprudence, political philosophy and history, this book explores the genealogy of the concept of the state of exception and reflects on its legal embodiment in past and present contexts – including Weimar and Nazi Germany, contemporary Europe and Turkey. In doing so, it explores the disruptive force of the exception for legal and political thought, as it recuperates its contemporary critical potential.

The book will be of interest to students and scholars in the field of jurisprudence, philosophy and critical legal theory.

Part 1

Law, theory and the logic of the exception

Chapter 1

Exception, fiction, performativity

Gian Giacomo Fusco

Introduction

A few days after the terrorist attacks in Paris of 13 November 2015, the French president François Hollande spoke before a joint session of parliament in this way:

France is at war. The acts committed in Paris and near the Stade de France on Friday evening are acts of war. They left at least 129 dead and many injured. They are an act of aggression against our country, against its values, against its young people, and against its way of life. They were carried out by a jihadist army, by Daesh, which is fighting us because France is a country of freedom, because we are the birthplace of human rights. At this exceptionally solemn moment, I wanted to address a joint session of Parliament to demonstrate our national unity in the face of such an abomination and to respond with the cool determination that this vile attack against our country calls for […] I shall marshal the full strength of the State to defend the safety of its people. I know I can count on the dedication of police officers, gendarmes, service personnel, and you yourselves, our national representatives.¹

This speech followed a declaration of state of emergency (état d’urgence) for the whole of France announced on the same evening of the attacks, which entered into force the next morning. Introduced into the French legal order with the law n. 55–385 of 3 April 1955, the state of emergency was devised at that time to contain the sabotage activities and armed actions conducted during the Algerian war by the liberation front (FLN).² This law is configured properly as a state of exception, which gives the executive the powers to implement restrictive measures in relation to the freedom of movement, residence and assembly, and to limit certain civil liberties. And as is nowadays usual, the state of emergency declared in November 2015 lasted approximately two years, and ended with the promulgation of new anti-terror legislation³ that integrated into French law some of the exceptional measures granted by the state of emergency.⁴

1 ‘Speech by the President of the Republic before a joint session of Parliament’, 16 November 2015, available at https://onu.delegfrance.org/Francois-Hollande-s-Speech-Before-a-Joint-Session-of-Parliament

2 It is worth noting that the état d’urgence is one of the three provisions for the administration of exceptional powers in times of emergency. The other two are the state of siege (art. 36 of the constitution) and the regulation of extraordinary powers of the president in the case of severe crisis (regulated by art. 16 of the constitution).

3 “Loi n° 2017–1510 du 30 octobre 2017 renforçant la sécurité intérieure et la lutte contre le terrorism”, see: www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000035932811&dateTexte=&categorieLien=id

4 On the integration and normalisation of emergency laws into democratic regimes, see: Jean-Claude Paye, Global War on Liberty, James H. Membrez transl. (New York: Telos Press, 2007); Günter Frankenberg, Political Technology and the Erosion of the Rule of Law: Normalizing the State of Exception, H. Bauer, G. Frankenberg transl. (Cheltenham: Edward Elgar, 2014); Ryan Patrick Alford, Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law (Montreal: McGill-Queen’s University Press, 2017); Alan Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (London: Bloomsbury, 2018).

What France has been experiencing in recent years should come as no surprise. Indeed, it is now common to many Western jurisdictions involved in the so-called war on terror that they live in a state of war without a war actually existing or being formally declared. As a matter of fact, and of law, terrorism cannot be classified as a war. Hence, the characterisation of an event (no matter how serious and threatening) that does not satisfy the necessary conditions to be defined as war, as a war, must be taken for what it is: a useful narrative giving legitimacy to the declaration of state of emergency. The use of a vocabulary of war by President Holland is blatantly functional to the implementation of legal measures intended for an ‘actual’ war.⁵ And although legally rather problematic, this strategy is paradigmatic of the state of exception as a ‘normal’ form of government, according to which ‘a state of peace itself can at the same time be a state of emergency’,⁶ on the grounds of a decision of a legitimate authority.

5 President Hollande was fully aware of this. Indeed, he stated that ‘the law which governs the state of emergency of 3 April 1955 cannot really match the kind of technologies and threats we face today’ and ‘Our Constitution currently has two specific schemes that are not appropriate for the situation we are in. The first scheme involves Article 16 of the Constitution. It specifies that the regular functioning of public authorities be suspended. The president will then take such measures as warranted by the circumstances, overriding the distribution of the constitutional powers. And then there’s Article 36 of the Constitution, which relates to the state of siege. And this isn’t appropriate either. A state of siege is decreed in situations of imminent peril resulting from a foreign war or an armed insurrection. In this situation, various powers are then transferred from the civil to the military authorities’. See ‘Speech by the President of the Republic before a joint session of Parliament’.

6 Slavoj Žižek, Welcome To The Desert of The Real! Five Essays on September 11 and Related Dates (London: Verso, 2002), 107.

In its canonical definition, the state of exception consists of a partial or complete temporary suspension of a normative order to safeguard its survival in a critical situation, which usually entails the restriction of certain rights and constitutional guarantees and a variable infringement of the principle of separation of powers, through the delegation of special powers to the executive. As such, the state of exception finds its (onto)logical presupposition, and its only raison d’être, in the presence of determinate exceptional facts constituting a threat for the state. As has been observed, an ‘emergency is a state of fact; however, as the brocard fittingly says, e facto oritur ius [law arises from fact]’.⁷ But the widespread use and abuse of emergency powers that we are witnessing teaches us that the relation of determination between the exception as a fact and the exception as a legal response is not as strict as it might seem at a theoretical level. The use of the state of emergency and more generally of exceptional laws is now so common that their relation to a factual necessity seems lost. In this regard, Kim Lane Scheppele maintains that emergency powers, in contemporary constitutional regimes when used, are ‘never the sort of total emergencies […] as one might imagine from theory’⁸; they are implemented partially, discreetly and pervasively, altering the substance of the law but leaving a semblance of legality intact, often on the ground of ‘rhetorical’ threats.

When the exception becomes a regulated and normalised technique of government, the verification of its legality or illegality – a central trope of past and present jurisprudence⁹ – becomes a trivial enterprise. More important, instead, would be calling into question the very nature of the exception as a ‘legal object’, which ‘lies squarely within the field of public law’.¹⁰ To this end, in this chapter, taking inspiration from some arguments advanced by Carl Schmitt and Giorgio Agamben, I will examine what has been termed as fictitious (or political) state of exception. Emerging in the context of the French Revolution in relation to the doctrine of the state of siege, the idea of a fictitious state of exception – as opposed to a real one – represents a kind of prototype for all the contemporary forms of regulated emergency powers. As we will see, a state of exception is ‘fictitious’ inasmuch as it allows for a suspension of the normal course of the law on the base of a ‘subjective’ decision (usually made according to the loose criteria of emergency, security, danger, imminent threat, etc.); for this reason, crucial to the regulation of the state of emergency is who has the authority to decide it. And because of its rather peculiar relation with facts, in what follows I will argue that the state of exception should be considered as a specific legal technique whose function and logic is akin to those of legal fictions. Consequently, the possibility of abusing emergency powers simply to obtain a certain goal, and not as a reaction to a chain of perilous events, will appear as inscribed in the very nature of the exception as a legal object. But this raises a further crucial philosophical and jurisprudential point. Generally, the state of exception has been interpreted as a reaction to a given situation of danger; in this chapter, I will argue instead that the exception must be better understood in terms of performativity.

7 Gaetano Arangio-Ruiz, Istituzioni di diritto costituzionale italiano (Milan: Bocca, 1972 [1913]), 528.

8 Kim Lan Scheppele, ‘Legal and Extra-Legal Emergencies’, in K. E. Whittington and G. A. Caldeira (eds), Oxford Handbook of Law and Politics (Oxford: Oxford University Press, 2008), 174.

9 From the first half of the twentieth century, with the so-called debate on constitutional dictatorship, to the more recent legal analysis of the emergencies within the war on terror, scholars in challenging the issues of exceptional powers divided themselves into legalist and extra-legalist; those ‘who seek to include the state of exception within the sphere of the juridical order and those who consider it something external, that is, an essentially political, or in any case extra-juridical, phenomenon’. These models are ‘defined via a spatial metaphor of law as a container’, assuming the form of...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Introduction: Untimely considerations on the state of exception
• PART 1: Law, theory and the logic of the exception
• PART 2: Histories of exception
• Afterword: Emergencies, exceptions, legalities
• Index