2. Rewriting the history of the state of exception
3. Agamben’s oblivion to constitutional theory
4. States and spaces of exception
In 2004, to protest certain new security measures applied to foreign nationals entering the United States, the Italian philosopher Giorgio Agamben wrote in Le Monde that he would refuse to travel to the U.S. to assume a visiting professorship at New York University. While Agamben, as a citizen of an EU country, would likely have been exempted from these measures, he offered his gesture as a call for solidarity with vulnerable populations and warned that similar biometric measures had foreshadowed the Holocaust. Whatever the response to Agamben’s announcement in Europe (where philosophers are considered important public figures), in the United States (where they are less venerated), his statement was greeted with a certain degree of incredulity. Academic colleagues and other commentators in the media seemed either offended by the implied comparison of mere fingerprinting with the operation of concentration camps or else they dismissed his comment as symptomatic of a politically irresponsible and paranoid style of thought infecting academia. Whether either of these reactions would be justified by a deeper consideration of the issues, readers of Agamben’s past work will immediately recognize the consistency of his gesture with earlier theoretical claims.
Agamben was specifically protesting the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program, a biometric policy mandating automatic fingerprinting and photographing of all foreign visitors except nationals of twenty-seven U.S. allies. The program went into effect January 5, 2004. Less than a week later, Agamben announced the cancellation of his visit in an op-ed, Non au tatouage biopolitique [SayNo to Biopolitical Tattooing], LE MONDE, Jan. 11, 2004, Point de vue.
The “Agamben Affair” was reported extensively in The New York Times and New York Post and debated in various editorial forums. Karen W. Arenson, In Protest, Professor Cancels Visit to the U.S., NEW YORK TIMES (Late ed.), Jan. 17, 2004, at B4 (quoting Sheldon E. Steinbach, general counsel for the American Council on Education: “There is an undertone of massive paranoia that is speculative and anticipatory that is seemingly permeating some elements of the professoriate”); Italian professor protests US fingerprinting policy, NEWSDAY (online ed.), archived atwww.newsday.com/news/local/wire/ny-bc-nyprofessorprotest0117jan17,0,4616592.story?coll=ny; Standard Schaefer, What the NYTs Choose Not to Mention: Italian Philosopher Giorgio Agamben Protests US Travel Policies, COUNTERPUNCH, Jan. 23, 2003, available atwww.counterpunch.org/schaeffer01232004.html (criticizing mainstream media for trivializing the protest).
Agamben has long argued, in a formulation best distilled in his book Homo Sacer: Sovereign Power and Bare Life, that the “camp”—be it concentration camp or refugee camp—is the paradigm of political modernity insofar as legal categories and the idea of sovereignty have served as a justification for abandoning “enemy bodies” to zones outside strict legality. In Homo Sacer, Agamben is steeped in the most dystopian and rights-skeptical thought of theorists such as Michel Foucault, Walter Benjamin, Hannah Arendt, and Carl Schmitt, yet he still emerges with a relatively redemptive ethical sensibility, one that would be appealing to those who seek to defend human dignity against cruelty. Certainly, his persistent invocation of the Holocaust to dramatize modern forms of exclusion and outlawry puts him in the company of twentieth-century ethicists ranging from Emmanuel Levinas to Judith Shklar, who drew upon the Holocaust as the ultimate experiential grounding for their theories. In my view, Agamben can be read as a philosopher of deep ethical concern and originality but, to read him charitably, one must become accustomed to his signature rhetorical devices of hyperbole, paradox, and “indistinction” (whereby Agamben frames conceptual opposites, such as security and insecurity, rights and repression, or public and private, as deeply intertwined). It is helpful to approach a number of these conceits as thought experiments. For example, the use of hyperbole is not very different from “slippery slope” arguments. As for paradox and indistinction, it seems fair to say that states of exception—perhaps more so than any other subject matter of legal theory—constitute an area of inquiry where these discursive vices can actually be seen as virtues. The language of indistinction and undecidability is often descriptively appropriate, and this is evident in numerous scholarly accounts of the blurred distinctions between war and crime, sovereignty and territorial control, combatant and civilian, legal and political decisions, all of which have increased since September 11, 2001.
GIORGIO AGAMBEN, HOMO SACER: SOVEREIGN POWER AND BARE LIFE (Daniel Heller-Roazen trans., Stanford Univ. Press 1998).
Hannah Arendt, We Refugees, in R.H. FELDMAN, THE JEW AS PARIAH: JEWISH IDENTITY AND POLITICS IN THE MODERN AGE 55–67 (Grove Press 1978); Hannah Arendt, The Decline of the Nation-State and the End of the Rights of Man, in THE ORIGINS OF TOTALITARIANISM ch. 9, at 267–302 (Harcourt Brace 1973).
For a more focused reading of these four thinkers on virtually the same issues, see BEATRICE HANSSEN, CRITIQUE OF VIOLENCE (Routledge 1999).
For an accessible overview of post-Holocaust Continental ethics, see BENJAMIN C. HUTCHENS, LEVINAS: A GUIDE FOR THE PERPLEXED (Continuum Books 2004) 81–88. See also,e.g., THE LEVINAS READER (Seán Hand ed., trans., Blackwell 1989); JULIA KRISTEVA, STRANGERS TO OURSELVES (Leon S. Roudiez trans., Columbia Univ. Press 1991); ALPHONSO LINGIS, THE COMMUNITY OF THOSE WHO HAVE NOTHING IN COMMON (Indiana Univ. Press 1994).
Interviewed in the German Law Journal, Agamben describes this methodology in his clearest terms thus far:
When you take a classical distinction of the political-philosophical tradition such as public/private, then I find it much less interesting to insist on the distinction and to bemoan the diminution of one of the terms, than to question the interweaving. I want to understand how the system operates. And the system is always double; it works always by means of opposition. Not only as private/public, but also the house and the city, the exception and the rule, to reign and to govern, etc. But in order to understand what is really at stake here, we must learn to see these oppositions not as “di-chotomies” but as “di-polarities,” not substantial, but tensional. I mean that we need a logic of the field, as in physics, where it is impossible to draw a line clearly and separate two different substances. The polarity is present and acts at each point of the field. Then you may suddenly have zones of indecidability or indifference. The state of exception is one of those zones.
Ulrich Raulff, Interview with Giorgio Agamben—Life, a Work of Art Without an Author: The State of Exception, the Administration of Disorder and Private Life.  GERMAN L.J. 610, 612 (2004).
In Agamben’s new book, State of Exception, a sequel to Homo Sacer, he draws explicitly on lectures delivered in New York and elsewhere in the years since 9/11, repeating the central themes of his past work and transposing them to a different key. Here, rather than speaking of the “camp,” he argues that the “state of exception” is a primal form of modern government. While innumerable debates and insights may be drawn from this slim volume, I will limit this review to three areas: (a) Agamben’s historical account of the state of exception, including his most controversial claim, in which he finds a basis for the practice not in the Roman dictatorship but in an obscure public ritual known as iustitium; (b) recent constitutional theory that refutes Agamben’s statement that the state of exception (even as he redefines it) has been ignored as a “question of public law”; and, finally, (c) the curious absence of Agamben’s distinctive theories of “spaces of exception,” which had been productively developed in earlier works but are muted here in service of a larger ethical thesis.
In this review, I will discuss only the two chapters posing historical and conceptual theses. The remaining chapters, which resemble literary criticism, include a rereading of Walter Benjamin’s work on the permanent state of emergency, the dossier of a half-imaginary intellectual debate between Benjamin and Carl Schmitt, and a philological discussion of the terms potestas and auctoritas.
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 (Niccolò 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.
Here Agamben cites ADOLPHE NISSEN, DAS IUSTITIUM: EINE STUDIE AUS DER ROMISCHEN RECHTGESCHICHTE [THE IUSTITIUM: A STUDY OF ROMAN PUBLIC LAW] (Gebhardt 1877).
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. 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.
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).
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, (2005) (doctoral dissertation, Yale University), at 187.
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 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.
ARTHUR KAPLAN, DICTATORSHIPS AND “ULTIMATE” DECREES IN THE EARLY ROMAN REPUBLIC 501–202 B.C. (Revisionist Press 1977).
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).
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.
CLINTON ROSSITER, CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT INTHE MODERN DEMOCRACIES (Transaction 2002); THEODORE REINACH, DE L’ÉTAT DE SIEGE: ETUDEHISTORIQUE ET JURIDIQUE [STATE OF SIEGE: A HISTORICAL AND LEGAL STUDY] (F. Pichon 1885).
3. Agamben’s oblivion to constitutional theory
Agamben begins the book with the unsustainable claim that “there is still no theory of the state of exception in public law, and jurists and theorists of public law seem to regard the problem more as a questio facti than a genuine juridical problem” (p. 1). Yet his own concerns are familiar, even pervasive, in recent public law theory (“constitutionalism”). While few constitutionalists would share Agamben’s underlying conception of the exception as a void, his general approach resembles standard accounts, which dichotomize emergency powers into constitutional and extraconstitutional measures, before going on to point out the practical interpenetration of these two options. Nearly every recent account from the mainstream of constitutional theory has leaned on traditional dichotomies (formalism/contingency, republican/liberal, monism/dualism) only to transcend them.
The current constitutional literature on states of emergency is vast. See, e.g., 2 INT’L. J. CONST. L. (I·CON) 207–429 (2004); MARK TUSHNET, THE CONSTITUTION IN WARTIME: BEYOND ALARMISM AND COMPLACENCY (Duke Univ. Press 2005).
Again, “formalist” theories are identified with the republican tradition that places emergency measures within the law, and “contingent” theories with the liberal tradition that places them outside the law. The interpenetration has been captured in typologies in constitutional writings, including Ferejohn & Pasquino, supra note 10; Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 YALE L.J. 1011 (2003); Gabriel L. Negretto & Jose Antonio Aguilar Rivera, Liberalism and Emergency Powers in Latin America: Reflections on Carl Schmitt and the Theory of Constitutional Dictatorship, 21 CARDOZO L. REV. 1797 (2000).
As a descriptive matter, the insufficiency of the traditional dichotomies is evidenced by two features of modern emergency measures: (a) an increasingly legislative character, and (b) selective targeting. First—and this is a tendency that Agamben notes in modern Western democracies, now taking hold elsewhere as well—emergency regimes tend to deal with threats through so-called special laws rather than constitutional provisions or ad hoc decrees. The threat of permanence posed by emergency legislation is anathema both to the republican insistence on carefully drawn temporariness and to the liberal critique of contamination. Thus, far from treating it as a questio facti, constitutionalists have been forced to reconceptualize entirely states of emergency. It is true that constitutional theorists are generally pragmatic commentators on institutional design. As Jack Balkin has said, “institutions have inherent incentives to try to increase their authority while decreasing their accountability.” For constitutionalists, then, the “juridical problem” is embodied in the concern that temporary measures should not become “business as usual.”
Jack Balkin, Commentary: The Truth About Our Institutions, 12(4) THE RESPONSIVE COMMUNITY 92 (2002).
Agamben would agree, but he prefers to phrase the problem not pragmatically but ontologically. For him, the generalization of temporary measures reveals a blurring of distinctions between law and politics. By refusing to engage with specific institutional responses, Agamben comes close to saying it is law itself that is the true juridical problem. Constitutionalists will find this unsatisfying. But there are other places where Agamben’s theories anticipate unresolved challenges to constitutional theory. This is the case with the “selectivity” of modern emergency powers, which are increasingly targeted at particular populations. Selective targeting is an alternative to wholesale emergency measures that would affect the entire constitutional order. Constitutional scholars such as Geoffrey Stone and David Cole have described how, since the terrorist attacks of September 11, 2001, the fundamental structure of U.S. immigration policy has allowed the rights of noncitizens to be “balanced” against the security of citizens, subjecting an already vulnerable population to an invidious distinction and, potentially, a zero-sum relation.
GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF1798 TO THE WAR ON TERRORISM 531 (W.W. Norton & Co. 2004) (“[A]s almost always happens, the individuals whose rights are sacrificed are not those who make the laws, but minorities, dissidents and noncitizens. In those circumstances, ‘we’ are making a decision to sacrifice ‘their’ rights—not a very prudent way to balance the competing interests.”). See also David Cole, Their Liberties, Our Security: Democracy and Double Standards, 31 INT’L J. LEGAL INFO. 290 (2003).
Despite their normative dissonance, the arbitrary detentions and the other apparent suspensions of due process standards that followed are not particularly surprising from the point of view of mainstream constitutional debates. Debates over the extraterritorial extension of the constitution, plenary power, and war powers are typically more concerned with the relative competence of branches of government to regulate noncitizens than with the expansion of rights. Agamben could have advanced a thicker sense of preservation and formalism beyond the point at which the imagination of constitutionalists might sometimes fail. If he paid more attention to legal institutions (such as those of immigration law or international law) Agamben’s work could be taken to suggest that the shift from “rights” to “security” with respect to the “bodies of others” points to the insufficiency of the set of values embraced by current constitutional norms. Constitutionalists have failed to reach any consensus on these issues, but that is not the same as remaining silent. The central issue that has evaded consensus—whether states of exception should be regulated by law or left unregulated—has generated a great deal of legal writing, and Agamben’s account gets us no closer to a resolution of this debate.
4. States and spaces of exception
State of Exception is, recognizably, a sequel to Homo Sacer, but not the one that might have been expected. Since the subject of the earlier book was the abandonment of “enemy bodies” to spaces of anomie, Agamben could have extended appropriately the themes of Homo Sacer to the indefinite detentions of enemy aliens in Guantánamo Bay. Judith Butler, in her recent book Precarious Life, has drawn on Agamben to make this contribution explicit. In Agamben’s past work one already sees the potential for a refinement of the typology of the emergency beyond national, territorial, or even selective emergency powers to include extraterritorial emergency powers, which reveals a genuine blind spot of constitutional discourse. Other scholars have also identified, as a descriptive matter, similarities between refugee camps and detention camps. Michel Agier, an anthropologist, and Françoise Bouichet-Saulnier, legal counsel of the humanitarian organization Médecins sans frontières, have observed ad hoc power relations in different provisional spaces—“prison camps, refugee detention camps, waiting areas in airports, transit centers near borders”—while documenting the internal life of refugee camps. Just when these “spaces of exception” have become salient, Agamben has abandoned a rigorous discussion of these issues.
JUDITH BUTLER, PRECARIOUS LIFE: THE POWERS OF MOURNING AND VIOLENCE (Routledge 2004). Even more than Agamben, Butler emphasizes the selectivity of measures that reduce certain groups, and not all political subjects, to “bare life” by excluding them from protection under international human rights laws or the Geneva conventions.
MICHAEL IGNATIEFF, THE LESSER EVIL 25 (Princeton Univ. Press 2004), describes three forms of states of emergency: national, territorial, and selective.
Michel Agier & Francoise Bouichet-Saulnier, Humanitarian Spaces: Spaces of Exception, in FABRICE WEISSMAN, IN THE SHADOW OF “JUST WARS”: VIOLENCE, POLITICS AND HUMANITARIAN ACTION 297, 303 (Cornell Univ. Press 2004).
Id. at 300 (“Created as emergency solutions, the camps gradually come to constitute the framework of daily life for their ‘inhabitants’ over the course of long, very long years, or even decades. The refugees, pawns in the hands of time and politics, then find themselves permanent residents of these spaces of exception.”).
While a more detailed theory of spaces of exception might have been conceptually satisfying, Agamben downplays this aspect in favor of conveying a more general theory of insecurity. If the problem were merely one of privileging of “citizens’ rights” over “human rights,” this could be remedied by enforcing international human rights treaties or extending antidiscrimination obligations in constitutional law. However, Agamben draws a more extreme conclusion. The situation of noncitizens and refugees actually reveals the underlying situation of all political subjects. When, in a state of exception, politics becomes indistinguishable from the logic of war, we are all the objects of decision making whose rights are beside the point. Agamben repeats this claim often but never as a positive case for the expansion of rights or for the formal delimitation of emergency measures. Instead, he builds a case for solidarity around the theme of common insecurity. In this sense, Agamben’s project is a radicalization of Shklar’s “liberalism of fear,” offering an ethical sensibility rather than a normative theory. In the end, as with Agamben’s own protest against U.S. security policy, State of Exception gestures toward an argument that is minimal but ethically compelling: we must abandon the expectation that security can be achieved by making others insecure.
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