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Clement Fatovic

Despite scholarly disagreements over the meanings of both the rule of law and emergency, there is broad agreement that emergencies often invite and justify departures from the formal requirements and substantive values identified with the rule of law as a normative ideal. It is often argued that strict adherence to existing laws, which are typically enacted during periods of normalcy in order to prevent arbitrary forms of rule associated with tyranny, could inhibit the government’s ability to respond quickly and effectively to the often unexpected and extraordinary challenges posed by an emergency such as war or natural disaster. Consequently, the temporary use of extraordinary measures outside the law has been widely accepted both in theory and in practice as long as such measures aim to restore the normal legal and political order. However, understandings of the tension between emergency and the rule of law have undergone a significant shift during the 20th century as emergency powers increasingly get codified into law. The use of extralegal measures that violate the formal and procedural requirements of the rule of law is still considered a dangerous possibility. However, as governments have come to rely increasingly on expansions of power that technically comport with standards of legality to deal with a growing list of situations characterized as emergencies, there is concern that extraordinary exercises of power intended to be temporary are becoming part of the permanent legal and political order.


The core of Giorgio Agamben’s political theory is his analysis of the ambivalence of politics and its ill-fated relationship with law. The key figure of this relationship, the biopolitical product of it, is the homo sacer, a figure that dates back to ancient Roman law. For Agamben, the homo sacer is the perfect manifestation of the sovereign power that has created this figure by banning it as an outlaw who can be harmed or even killed with impunity—all in the name of law. Agamben’s political theory aims at revealing the inherent logic of the sovereign power and its effects in determining the legal subjects of law (inclusion) and, by the same token, in imposing the pending option of separating these very legal subjects (or parts of them) from the legal order (exclusion). According to Agamben, this “exclusionary inclusion” illustrates not only the logic of biopolitics but also the destructive power of sovereignty that has accumulated the capacity to “form life” at its own interest by binding politics and law together. Historically, this kind of sovereignty has ancient origins, but politically its real power has been unleashed in modern times. For Agamben, homo sacer has become the cipher of modern societies, regardless of the manifold differences between democratic and autocratic political systems; and for this reason, he has dubbed his central project in the field of political theory Homo Sacer. Agamben started his Homo Sacer project with his widely received study, programmatically of the same title, in 1995. Much of what he has written in the years after can be interpreted as elaborations of the impact and consequences of the juridification of politics that he despises so much. For him, contrary to modern constitutionalism’s understanding, juridification is not a process of civilizing the political order; it produces ready-made legal instruments at the disposal of any sovereign anytime. Therefore, according to Agamben, it is a myth, typically told by proponents of liberal democracy, that law has the power to constrain sovereignty; instead, it enables sovereignty. Against this background, it does not come as a surprise that Agamben connects with a wide range of critics of the liberal concept of democracy and tries to make use of their arguments for his own project. For instance, Agamben shares the concept of biopolitics with Foucault but understands it (unlike Foucault) as a general phenomenon of law and politics; moreover, he borrows from Carl Schmitt the theory of the state of exception while transforming it into a permanent structure turning all humans into potential homines sacri; and picks up on Hannah Arendt’s analysis of the concentration camps during the Nazi reign, stressing that the scope of sovereign power is almost unlimited, especially if it is based on an impersonal reign of arbitrariness and uncertainty that enable the production of forms of bare life that can hardly be called human anymore. Taken together, Agamben presents a radical critique of the history and development of the political orders from the Greek origins to modern-day democratic governance. Is there any reason for hope? In some of his studies after the State of Exception (original, 2003), Agamben picks up on this topic, at least indirectly. In The Kingdom and the Glory (2011), for instance, he deals with the industry of hope by discussing the distribution of labor within the holy trinity as the blueprint for the interplay between active, powerful parts of government (governing administration) and the passive, symbolic parts of it (ruling sovereigns). However, this interplay, with the help of “angels” (bureaucrats), produces only spectacular (but empty) glorification for the purpose of self-justification. The cure, if there is any, can only come from a radical detachment that liberates politics from law and, moreover, from any meaningful purpose, so that politics can become a form of pure means: a messianic form, inspired by Benjamin’s idea of divine violence, that has the power of a total rupture without being violent. Following Benjamin, Agamben envisions a “real” state of exception in which sovereignty becomes meaningless. Agamben’s Homo Sacer project has triggered various forms of criticism, which can be divided roughly into two lines of arguments. The first line is directed against the dark side of his theory that all individuals are captured in a seemingly never-ending state of exception. Critics have claimed that this perspective results mainly from Agamben’s strategy of concept stretching, starting with the concept of the state of exception itself. A second line of critique questions Agamben’s concept of politics beyond biopolitics. Because his argument is rather vague when it comes to the prospect of a future political process, it has been suspected that his ideas on the alternative options compared to the current disastrous state of affairs are ultimately apolitical ideas of the political, based on the nonpolitical myth of a fully reconciled society. Despite of these kinds of criticism Agamben has insisted that liberation from the ongoing process of biopolitics will not be brought about by revolutionary actions, but by subversive thinking. Agamben notes that in this messianic concept everything will be more or less the same—“just a little different” (Agamben, 2007b, p. 53). And the difference that he seems to mean is that the potentiality is not determined by the sovereign any longer, but by the individual.