Preamble I – State of exception
A state of exception (German: Ausnahmezustand) is a concept introduced in the 1920s by the Nazi jurist Carl Schmitt, similar to a state of emergency (martial law) but based in the sovereign’s ability to transcend the rule of law in the name of the public good. “In Schmitt’s terms,” Masha Gessen wrote in Surviving Autocracy (2020), when an emergency “shakes up the accepted order of things…the sovereign steps forward and institutes new, extralegal rules.” This concept is developed in Giorgio Agamben’s book State of Exception (2005) and Achille Mbembe’s Necropolitics (2019).
The typical example from Nazi Germany is the Reichstag Fire (the arson against German parliament) which led to President von Hindenburg’s Reichstag Fire Decree following Hitler’s advice. The consequences of entering a state of exception may unroll slowly. “Even the original Reichstag Fire was not the Reichstag Fire of our imagination—a singular event that changed the course of history once and for all,” Gessen wrote, pointing out that the Second World War did not begin for another six years after the Reichstag burned. 
Gessen, Masha (2020). “Chapter 2: Waiting for the Reichstag Fire”. Surviving Autocracy. Riverhead. ISBN 9780593188941.
“State of Exception”. uchicago.edu.
“Necropolitics 2003”. Duke University Press.
“Necropolitics 2019”. Duke University Press.
Carl Schmitt, Die Diktatur. Von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen Klassenkampf, 1921.
Carl Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität, 1922.
Preamble II – Reichstag Fire Decree
The Reichstag Fire Decree (German: Reichstagsbrandverordnung) is the common name of the Decree of the Reich President for the Protection of People and State (German: Verordnung des Reichspräsidenten zum Schutz von Volk und Staat) issued by German President Paul von Hindenburg on the advice of Chancellor Adolf Hitler on 28 February 1933 in immediate response to the Reichstag fire. The decree nullified many of the key civil liberties of German citizens. With Nazis in powerful positions in the German government, the decree was used as the legal basis for the imprisonment of anyone considered to be opponents of the Nazis, and to suppress publications not considered “friendly” to the Nazi cause. The decree is considered by historians as one of the key steps in the establishment of a one-party Nazi state in Germany.
Text of the decree
The preamble and Article 1 of the Reichstag Fire Decree show the methods by which the civil rights enshrined in the Weimar Constitution were legally abolished by the Hitler Government:
Verordnung des Reichspräsidenten zum Schutz von Volk und Staat
Auf Grund des Artikels 48 Abs. 2 der Reichsverfassung wird zur Abwehr kommunistischer staatsgefährdender Gewaltakte folgendes verordnet:
§ 1. Die Artikel 114, 115, 117, 118, 123, 124 und 153 der Verfassung des Deutschen Reichs werden bis auf weiteres außer Kraft gesetzt. Es sind daher Beschränkungen der persönlichen Freiheit, des Rechts der freien Meinungsäußerung, einschließlich der Pressefreiheit, des Vereins- und Versammlungsrechts, Eingriffe in das Brief-, Post-, Telegraphen- und Fernsprechgeheimnis, Anordnungen von Haussuchungen und von Beschlagnahmen sowie Beschränkungen des Eigentums auch außerhalb der sonst hierfür bestimmten gesetzlichen Grenzen zulässig.
Order of the Reich President for the Protection of People and State
On the basis of Article 48 paragraph 2 of the Constitution of the German Reich, the following is ordered in defense against Communist state-endangering acts of violence:
§ 1. Articles 114, 115, 117, 118, 123, 124 and 153 of the Constitution of the German Reich are suspended until further notice. It is therefore permissible to restrict the rights of personal freedom [habeas corpus], freedom of (opinion) expression, including the freedom of the press, the freedom to organize and assemble, the privacy of postal, telegraphic and telephonic communications. Warrants for House searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.
Preamble III – Carl Schmitt – Influence – China
Schmitt has become an important influence on Chinese political theory in the 21st century, particularly since Xi Jinping became Party general secretary in 2012. Sinologist Flora Sapio has highlighted the friend–enemy distinction as a particular topic of interest in China, commenting, “Since Xi Jinping became China’s top leader in November 2012, the friend-enemy distinction so crucial to Carl Schmitt’s philosophy has found even wider applications in China, in both ‘Party theory’ and academic life.” Leading Chinese Schmittians include the theologian Liu Xiaofeng, the public policy scholar Wang Shaoguang, and the legal theorist and government adviser Jiang Shigong.
The first important wave of Schmitt’s reception in China started with Liu’s writings at the end of the 1990s. In the context of a transition period, Schmitt was used both by liberal, nationalist and conservative intellectuals to find answers to contemporary issues. In the 21st century, most of them are still concerned with state power and to what extent a strong state is required to tackle China’s modernization. Some authors consider Schmitt’s works as a weapon against liberalism. Others think that his theories are helpful for China’s development.
A critical reception of his use in a Chinese context does also exist. These differences go together with different interpretations of Schmitt’s relation with fascism. While some scholars regard him as a faithful follower of fascism, others, such as Liu Xiaofeng, consider his support to the National Socialist regime only as instrumental and attempt to separate his works from their historical context. According to them, his real goal is to pave a different and unique way for the modernization of Germany—precisely what makes him interesting for China. Generally speaking, the Chinese reception is ambivalent: quite diverse and dynamic, but also highly ideological. Other scholars are cautious when it comes to Schmitt’s arguments for state power, considering the danger of totalitarianism, they assume at the same time that state power is necessary for the current transition and that a “dogmatic faith” in liberalism is unsuitable for China. By emphasizing the danger of social chaos, many of them agree with Schmitt—beyond their differences—on the necessity of a strong state.
Book review – Excerpts
Giorgio Agamben, State of Exception (Stato di eccezione). Translated by Kevin Attell. University of Chicago Press, 2005. 104 pp.
Reviewed by Vik Kanwar*
For Agamben, the vulnerability of the ‘‘others’’ in states of exception reveals the fragility of rights discourse generally. He sees the distinctions between territorial sovereignty and deterritorialized punishment, between citizen and noncitizen, disappearing, so that we will eventually confront ‘‘exceptional’’ measures as the new ‘‘normal.’’ Agamben makes a case for these claims, yet his account suffers from an insufficient engagement with the body of existing public law—that is to say, constitutionalist— literature.
(2.) Rewriting the history of the state of exception
Conventional historiography identifies the Roman dictatorship as, if not the original, certainly the most influential model for subsequent attempts to establish formal emergency powers (‘‘states of emergency’’ or ‘‘states of exception’’).
The importance of this model has only increased over time. In the history of Western political theory it generated important debates between ‘‘republican’’ partisans (Niccolo` Machiavelli, Jean-Jacques Rousseau) and ‘‘liberal’’ opponents (John Locke, Charles de Montesquieu, Benjamin Constant) of formalized emergency powers.
In the last century, it provided a point of departure for both Clinton Rossiter and Carl Schmitt in their accounts of states of emergency.
Thus, Agamben is intentionally provocative in his attempt to redefine the state of exception by abandoning its origin in the magistracy of the dictatorship and relocating its genealogy in the Roman practice known as iustitium, a standstill or suspension of action, for example, during a period of public mourning.
The Roman dictatorship is meant to signify certain republican procedural ideals: the dictator may not declare the emergency, he has no power to legislate, and he is subject to a strict time limit. The iustitium is rhetorically the opposite: it suggests a situation where all legal order is suspended. The move from a specific, procedurally circumscribed authorization to an informal suspension corresponds to the conceptual shift—from the exception understood as an alternative rule to the exception as a gap or void in the law.
9. Here Agamben cites ADOLPHE NISSEN, DAS IUSTITIUM: EINE STUDIE AUS DER ROMISCHEN
RECHTGESCHICHTE [THE IUSTITIUM: A STUDY OF ROMAN PUBLIC LAW] (Gebhardt 1877).
10. Republicanism is typically formalist on the issues of declaration, duration, conduct, control, and termination of emergencies. John Ferejohn & Pasquale Pasquino, The Law of The Exception: A Typology of Emergency Powers, 2 INT’L. J. CONST. L. (I•CON) 210, 212 (2004).
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What seems strange is that Agamben continues to emphasize a strong dichotomy between formalism and contingency, even when he goes on to link the ‘‘total gap’’ of the iustitium to an institutional, albeit relatively informal, mechanism of emergency rule—namely, the later Roman republican institution of the senatus consultum ultimum, where the Senate advised and allowed a consul to use whatever means necessary to defend the republic from a grave danger. However, both Agamben’s historical description of the senatus consultum and its suitability as a metaphor for ‘‘exception-as-void’’ are defective. Even if the form of the declaration is relatively informal, it would not be correct to identify the senatus consultum ultimum as a legal void. In some ways, the consul, subject to ex post facto review, was more constrained than the dictator. In any case, the contrast between the temporary creation of a new magistrate and the temporary suspension of laws constraining an existing magistrate is overdrawn.
Why does Agamben insist on replacing the dictatorship with another general model? In truth, the early Roman dictatorship is just as apt a model for modern states of emergency as the senatus consultum. A helpful study by Arthur Kaplan, listing and explaining all the Roman dictatorships and senatus consulta between 501 and 202 B.C., demonstrates how neither captures totally the later diversity in emergency models.
Schematically, the dictatorship may have more in common with the French tradition of the ‘‘state of siege,’’ whereas the senatus consultum more closely resembles the English tradition of martial law. Neither, however, provides a comprehensive general model.
The true reason for the shift in models is that Agamben is carrying over a peculiar ambivalence from Homo Sacer. His dual emphasis on the iustitium and senatus consultum in State of Exception is intentionally confusing, since he couples them in order to accommodate two contradictory impulses. The first impulse is to romanticize the gap of the iustitium in the same way that he sometimes romanticized ‘‘bare life,’’ as an irreducible and original form of life, in the earlier book. The other impulse is to identify the same gap as terrifying, akin to the kind of contingency
11. For example, the consuls Opimius (121 BC) and Cicero (63 BC) were both charged ex post facto with violations of Roman due process after acting under the senatus consultum ultimum. Opimius was acquitted; Cicero was convicted. Nomi Claire Lazar, The Ethics of Emergency Powers in Liberal Democracies, doctoral dissertation, Yale University, 2005, at 187.
12. ARTHUR KAPLAN, DICTATORSHIPS AND ‘‘ULTIMATE’’ DECREES IN THE EARLY ROMAN REPUBLIC 501–202
B.C. (Revisionist Press 1977).
13. For Agamben, the insistence in a shift to a ‘‘void’’ holds great strategic importance. It is Agamben’s romantic belief, following Walter Benjamin, that there is a ‘‘true state of exception’’ that we must bring about in the mannner of a carnivalesque reversal. In effect, Agamben is working backwards from a reading of Benjamin’s dictum, and he thinks he finds in the senatus consultum a precedent for the state of exception as a period of anomie. See Walter Benjamin, Theses on the Philosophy of History, in ILLUMINATIONS 253–264 (Harry Zohn trans., Hannah Arendt ed., Schocken 1969).
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that led to ‘‘perpetual dictatorship’’ in the later Roman Empire. Quite simply, Agamben aligns the senatus consultum with subsequent exercises of emergency powers because he does not find in the dictatorship the qualities of simultaneity and contradiction that he wants to bring to the foreground. Even if we accept this kind of paradigm shopping as a valid way to make critical, phenomenological, or ethical assessments, Agamben’s method frustrates his potential contributions to comparative or historical inquiry.
Not surprisingly, the argument does little to change our understanding of the subsequent history of emergency powers. Indeed, whatever the proper genealogy of the state of exception, and whatever modern implications we are meant to draw, Agamben’s subsequent historical examples are thoroughly conventional. Though he means to distinguish his ‘‘state of exception’’ from ‘‘states of emergency’’ and other ‘‘merely juridical’’ constructions, his examples (pp. 11–22) are practically identical to Rossiter’s or Reinach’s surveys of emergency powers in Western Europe and the United States. Aside from a discussion of a little-known 1914 emergency decree defending Swiss neutrality, Agamben’s examples are canonical: France, Germany, Italy, Britain, and the United States. He correctly notes the ‘‘legislative turn’’ in these countries: ‘‘… a continuing tendency in all of the Western democracies, the declaration of the state of exception has gradually been replaced by an unprecedented generalization of the paradigm of security as the normal technique of government’’ (p. 11). As in his discussion of the iustitium and senatus consultum, Agamben tends to confuse or conflate emergency institutions that are relatively informal with total gaps or suspensions. Thus, his attempt to align the legislative ‘‘generalization’’ of security with a legal ‘‘void’’ is unconvincing. If the reader does not accept Agamben’s philosophical reorientation, the historical contribution to contemporary debates will seem modest.
14. CLINTON ROSSITER, CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN DEMOCRACIES (Transaction 2002); THEODORE REINACH, DE L’E´TAT DE SIEGE: ETUDE HISTORIQUE ET JURIDIQUE [STATE OF SIEGE: A HISTORICAL AND LEGAL STUDY] (F. Pichon 1885).
Source: Article (PDF Available) in International Journal of Constitutional Law 4(3):567-575 · July 2006 - ResearchGate