Interview with Giorgio Agamben – Life, A Work of Art Without an Author: The State of Exception, the Administration of Disorder and Private Life

http://www.germanlawjournal.com/article.php?id=437

By Ulrich Raulff

 [Editors’ note: this interview, conducted by Ulrich Raulff in Rome on 4March 2004, was originally published, in German, by the Süddeutsche Zeitung on 6 April 2004. We are grateful to Ulrich Raulff and Giorgio Agamben for the permission to translate and publish this interview in German Law Journal. This translation was made by German Law Journal Co-Editor, Morag Goodwin, EUI, Florence. All notes have been provided for this publication by the editors.]

 [1] Raulff: Your latest book The State of Exception has recently been published in German. It is an historical and legal-historical analysis of a concept that we, at first blush, associate with Carl Schmitt. What does this concept mean for your Homo Sacer[1]project?

 [2] Agamben: The State of Exception belongs to a series of genealogical essays that follow on from Homo Sacer and which should form a tetralogy. Regarding the content, it deals with two points. The first is a historical matter: the state of exception or state of emergency has become a paradigm of government today. Originally understood as something extraordinary,an exception, which should have validity only for a limited period of time, but a historical transformation has made it the normal form of governance. I wanted to show the consequence of this change for the state of the democracies in which we live. The second is of a philosophical nature and deals with the strange relationship of law and lawlessness, law and anomy. The state of exception establishes a hidden but fundamental relationship between law and the absence of law. It is a void, a blank and this empty space is constitutive of the legal system.

 [3] Raulff: You wrote already in the first volume of Homo Sacer that the paradigm of the state of exception came into being in the concentration camps, or corresponds to the camps. The indignant outcry of last year as you applied this concept to the United States, to American politics, was predictably loud. Do you still consider your critique to be correct?

 [4] Agamben: Regarding such an application, the publication of my Auschwitz book[2] brought similar remonstrance. But I am not an historian. I work with paradigms. A paradigm is something like an example, an exemplar, a historically singular phenomenon. As it was with the panopticon for Foucault,[3] so is the Homo Sacer or the Muselmann or the state of exception for me. And then I use this paradigm to construct a large group of phenomena and in order to understand an historical structure, again analogous with Foucault, who developed his “panopticism” from the panopticon.[4] But this kind of analysis should not be confused with a sociological investigation.

 [5] Raulff: Nevertheless, people were shocked by your comparison because it seemed to equate American and Nazi policies.

 [5] Agamben: But I spoke rather of the prisoners in Guantánamo, and their situation is legally-speaking actually comparable with those in the Nazi camps. The detainees of Guantanamo do not have the status of Prisoners of War, they have absolutely no legal status.[5] They are subject now only to raw power; they have no legal existence. In the Nazi camps, the Jews had to be first fully “denationalised” and stripped of all the citizenship rights remaining after Nuremberg,[6] after which they were also erased as legal subjects.

 [6] Raulff: What do you understand the connection to be to America’s security policy? Does Guantánamo belong to the transition you have previously described from governance through law to governance through the administration of the absence of order?

 [7] Agamben: This is the problem behind every security policy, ruling through management, through administration. In the 1968 course at the Collège de France, Michel Foucault showed how security becomes in the 18th century a paradigm of government. For Quesnay, Targot and the other physiocratic politicians, security did not mean the prevention of famines and catastrophes, but meant allowing them to happen and then being able to orientate them in a profitable direction. Thus is Foucault able to oppose security, discipline and law as a model of government. Now I think to have to have discovered that both elements – law and the absence of law – and the corresponding forms of governance – governance through law and governance through management – are part of a double-structure or a system. I try to understand how this system operates. You see, there is a French word that Carl Schmitt often quotes and that means: Le Roi reigne mail il ne gouverne pas (the King reigns but he does not govern). That is the termini of the double-structure: to reign and to govern. Benjamin brought the conceptual pairing of schalten and walten (command and administer) to this categorization. In order to understand their historical dissociation one must then first grasp their structural interrelation.

 [8] Raulff: Again, is the time of law over? Do we live now in an era of rule by decree (Schaltung), of cybernetic regulation and of the pure administration of mankind?

[9] Agamben: At first glance it really does seem that governance through administration, through management, is in the ascendancy, while rule by law appears to be in decline. We are experiencing the triumph of the management, the administration of the absence of order.

 [10] Raulff: But do we not also observe, at the same time, the enlargement of the whole legal system and a tremendous increase in legal regulation? More laws are created on a daily basis and the Germans, for example, regularly feel that they are governed far more by Karlsruhe than Berlin.[7]

 [11] Agamben: Also there you see that both elements of the system coexist with one another, and that they both are driven to the extreme, so much so, that they seem at the end to fall apart. Today we see how a maximum of anomy and disorder can perfectly coexist with a maximum of legislation.

 [12] Raulff: From the way you have just described it, I see a rift that leads to an ever-starker polarization. Elsewhere, however, you say that the classical realm of the political will become ever narrower – and that sounds somewhat critical and decadently theoretical.

 [13] Agamben: Allow me to reply with Benjamin: there is no such thing as decline. Perhaps this is because the age is always already understood as being in decline. 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.

 [14] Raulff: Does the endpoint – and therewith the reality – of the private still have a meaning, in the sense of your systematic examination too? Is there something there that is worth defending?

 [15] Agamben: It is firstly obvious that we frequently can no longer differentiate between what is private and what public, and that both sides of the classical opposition appear to be losing their reality. And the detention camp at Guantánamo is the locus par excellence of this impossibility. The state of exception consists, not least, in the neutralization of this distinction. Nonetheless, I think that the concept is still interesting. Think only of the multitude of organizations and activities in the United States that, at present, are devoted to the protection and defense of “privacy” and attempt to define what belongs within this realm and what does not.

 [16] Raulff: How does this then involve your work?

 [17] Agamben: Homo Sacer is supposed to, as I said at the beginning, comprise four volumes in total. The last and most interesting for me will not be dedicated to an historical discussion. I would like to work on the concepts of forms-of-life and lifestyles. What I call a form-of-life is a life that can never be separated from its form, a life in which it is never possible to separate something such as bare life. And here too the concept of “privacy” comes in to play.

 [18] Raulff: At this point you clearly link up again with Foucault, perhaps with Roland Barthes as well, who held one of his later lectures on the topic of Vivre ensemble.

 [19] Agamben: Yes, but Foucault went back in history to the Greeks and the Romans when he had this idea. When you work on this topic, you suddenly no longer have a floor under your feet. And here you see clearly that we seem not to have any access to the present and to the immediate, except through what Foucault called an archaeology.[8] But what an archaeology could be, whose object is a form-of-life, that is to say an immediate life experience, this is not easy to say.

 [20] Raulff: As I understand it, almost every philosopher has had a vision of the good and the right or of a philosophical life as well. What does yours look like?

 [21] Agamben: The idea that one should make his life a work of art is attributed mostly today to Foucault and to his idea of the care of the self. Pierre Hadot, the great historian of ancient philosophy, reproached Foucault that the care of the self of the ancient philosophers did not mean the construction of life as a work of art, but on the contrary a sort of dispossession of the self.[9] What Hadot could not understand is that for Foucault, the two things coincide. You must remember Foucault’s criticism of the notion of author, his radical dismissal of authorship. In this sense, a philosophical life, a good and beautiful life, is something else: when your life becomes a work of art, you are not the cause of it. I mean that at this point you feel your own life and yourself as something “thought,” but the subject, the author, is no longer there. The construction of life coincides with what Foucault referred to as “se deprendre de soi.” And this is also Nietzsche’s idea of a work of art without the artist.

 [22] Raulff: For all those who have tried over the last thirty years to forge a non-exclusive form of politics, Nietzsche was the decisive reference. Why is he not that for you?

 [23] Agamben: Oh, Nietzsche was important for me also. But I stand rather more with Benjamin, who said, the eternal return is like the punishment of detention, the sentence in school in which one had to copy the same sentence a thousand times….

[24] Raulff: But the work of the Italian Philological School around and after Montinari has precisely shown us that Nietzsche is not a hard, despotic author, as one wanted us to believe for so long, but rather an open, traversed and criss-crossed system of readings and ideas – a work of art without author, like you just now called for.[25] Agamben: If that is so, then we need to learn to forget the presence of the subject. We must protect the work against the author.

In his Political Theology (1922), Carl Schmitt (1888-1985) established the essential proximity between the state of emergency and sovereignty. But although his famous definition of the sovereign as “the one who can proclaim a state of emergency” has been commented on many times, we still lack a genuine theory of the state of emergency within public law. For legal theorists as well as legal historians it seems as if the problem would be more of a factual question than an authentic legal question.

The very definition of the term is complex, since it is situated at the limit of law and of politics. According to a widespread conception, the state of emergency would be situated at an “ambiguous and uncertain fringe at the intersection of the legal and the political,” and would constitute a “point of disequilibrium between public law and political fact.” The task of defining its limits is nevertheless nothing less than urgent. And, indeed, if the exceptional measures that characterize the state of emergency are the result of periods of political crisis, and if they for this very reason must be understood through the terrain of politics rather than through the legal or constitutional terrain, they find themselves in the paradoxical position of legal measures that cannot be understood from a legal point of view, and the state of emergency presents itself as the legal form of that which can have no legal form.

And, furthermore, if the sovereign exception is the original set-up through which law relates to life in order to include it in the very same gesture that suspends its own exercise, then a theory of the state of emergency would be the preliminary condition for an understanding of the bond between the living being and law. To lift the veil that covers this uncertain terrain between, on the one hand, public law and political fact, and on the other, legal order and life, is to grasp the significance of this difference, or presumed difference, between the political and the legal; and between law and life. Among the elements that render a definition of the state of emergency thorny, we find the relationship it has to civil war, insurrection and the right to resist. And, in fact, since civil war is the opposite of the normal state, it tends to coalesce with the state of emergency, which becomes the immediate response of the State when faced with the gravest kind of internal conflict. In this way, the 20th century has produced a paradoxical phenomenon defined as “legal civil war.”

Let us look at the case of Nazi Germany. Just after Hitler came to power (or, to be more precise, just after he was offered power) he proclaimed, on February 28, 1933, the Decree for the Protection of the People and the State. This decree suspends all the articles in the Weimar Constitution maintaining individual liberties. Since this decree was never revoked, we can say that the entire Third Reich from a legal point of view was a twelve year-long state of emergency. And in this sense we can define modern totalitarianism as the institution, by way of a state of emergency, of a legal civil war that permits the elimination not only of political adversaries, but whole categories of the population that resist being integrated into the political system. Thus the intentional creation of a permanent state of emergency has become one of the most important measures of contemporary States, democracies included. And furthermore, it is not necessary that a state of emergency be declared in the technical sense of the term.

At least since Napoleon’s decree of December 24, 1811, French doctrine has opposed a “fictitious or political” state of siege in contradistinction to a military state of siege. In this context, English jurisprudence speaks of a “fancied emergency”; Nazi legal theorists spoke unconditionally of an “intentional state of emergency” in order to install the National Socialist State. During the world wars, the recourse to a state of emergency was spread to all the belligerent States. Today, in the face of the continuous progression of something that could be defined as a “global civil war,” the state of emergency tends more and more to present itself as the dominant paradigm of government in contemporary politics. Once the state of emergency has become the rule, there is a danger that this transformation of a provisional and exceptional measure into a technique of government will entail the loss of the traditional distinction between different forms of Constitution.

The basic significance of the state of emergency as an original structure through which law incorporates the living being – and, this, by suspending itself – has emerged with full clarity in the military order that the President of the United States issued on November 13, 2001. The issue was to subject non-citizens suspected of terrorist activities to special jurisdiction that would include “indefinite detention” and military tribunals. The U.S. Patriot Act of October 26, 2001, already authorized the Attorney General to detain every alien suspected of endangering national security. Nevertheless, within seven days, this alien had to either be expelled or accused of some crime. What was new in Bush’s order was that it radically eradicated the legal status of these individuals, and produced entities that could be neither named nor classified by the Law. Those Talibans captured in Afghanistan are not only excluded from the status as Prisoners of War defined by the Geneva Conventions, they do not correspond to any jurisdiction set by American law: neither prisoners nor accused, they are simply detainees, they are subjected to pure de facto sovereignty/to a detention that is indefinite not only in its temporal sense, but also in its nature, since it is outside of the law and of all forms of legal control. With the detainees at Guantamo Bay, naked life returns to its most extreme indetermination.

The most rigorous attempt to construct a theory of the state of emergency can be found in the work of Carl Schmitt. The essentials of his theory can be found in Dictatorship, as well in Political Theology, published one year later. Because these two books, published in the early 1920s, set a paradigm that is not only contemporary, but may in fact find its true completion only today, it is necessary to give a resume of their fundamental theses.

The objective of both these books is to inscribe the state of emergency into a legal context. Schmitt knows perfectly well that the state of emergency, in as far as it enacts a “suspension of the legal order in its totality,” seems to “escape every legal consideration”; but for him the issue is to ensure a relation, no matter of what type, between the state of emergency and the legal order: “The state of emergency is always distinguished from anarchy and chaos and, in the legal sense, there is still order in it, even though it is not a legal order.” This articulation is paradoxical, since, that which should be inscribed within the legal realm is essentially exterior to it, corresponding to nothing less than the suspension of the legal order itself. Whatever the nature of the operator of this inscription of the state of emergency into the legal order, Schmitt needs to show that the suspension of law still derives from the legal domain, and not from simple anarchy. In this way, the state of emergency introduces a zone of anomy into the law, which, according to Schmitt, renders possible an effective ordering of reality. Now we understand why the theory of the state of emergency, in Political Theology, can be presented as a doctrine of sovereignty. The sovereign, who can proclaim a state of emergency, is thereby ensured of remaining anchored in the legal order. But precisely because the decision here concerns the annulation of the norm, and consequently, because the state of emergency represents the control of a space that is neither external nor internal, “the sovereign remains exterior to the normally valid legal order, and nevertheless belongs to it, since he is responsible for decision whether the Constitution can be suspended in toto.” To be outside and yet belong: such is the topological structure of the state of emergency, and since the being of the sovereign, who decides over the exception, is logically defined by this very structure, he may also be characterized by the oxymoron of an “ecstasy-belonging.”

1. In 1990, Jacques Derrida gave a lecture in New York entitled “Force de loi: le fondement mystique de l’autorite.” ["Force of Law: the Mystical Foundation of Authority"] The lecture, that in fact consisted of a reading of an essay by Walter Benjamin, “Towards a Critique of Violence,” provoked a big debate among philosophers and legal theorists. That no one had proposed an analysis of the seemingly enigmatic formula that gave the lecture its title is not only a sign of the profound chiasm separating philosophical and legal culture, but of the decadence of the latter. The syntagm “Force de loi” refers back to a long tradition of Roman and Medieval Law where it signifies “efficacy, the capacity to oblige,” in a general sense. But it was only in the modern era, in the context of the French Revolution, that this expression began designating the supreme value of acts expressed by an assembly representative of the people. In article 6 from the Constitution of 1791, “force de loi” designates the indestructible character of the law, that the sovereign himself can neither abrogate nor modify.

From a technical point of view, it is important to note that in modern as well as ancient doctrine, the syntagm “force de loi” refers not to the law itself, but to the decrees which have, as the expression goes, “force de loi” – decrees that the executive power in certain cases can be authorized to give, and most notably in the case of a state of emergency. The concept of “force de loi,” as a technical legal term defines a separation between the efficacy of law and its formal essence, by which the decrees and measures that are not formally laws still acquire its force.

This type of confusion between the acts by an executive power and those by a legislative power is a necessary characteristic of the state of emergency. (The most extreme case being the Nazi regime, where, as Eichmann constantly repeated, “the words of the Fuhrer had the force of law.”) And in contemporary democracies, the creation of laws by governmental decrees that are subsequently ratified by Parliament has become a routine practice. Today/the Republic is not parliamentary. It is governmental. But from a technical point of view, what is specific for the state of emergency is not so much the confusion of powers as it is the isolation of the force of law from the law itself. The state of emergency defines a regime of the law within which the norm is valid but cannot be applied (since it has no force), and where acts that do not have the value of law acquire the force of law.

This means, ultimately, that the force of law fluctuates as an indeterminate element that can be claimed both by the authority of the State or by a revolutionary organization. The state of emergency is an anomic space in which what is at stake is a force of law without law. Such a force of law is indeed a mystical element, or rather a fiction by means of which the law attempts to make anomy a part of itself. But how should we understand such a mystical element, one by which the law survives its own effacement and acts as a pure force in the state of emergency?

2. The specific quality of the state of emergency appears clearly if we examine one measure in Roman Law that may be considered as its true archetype, the iustitium.

When the Roman Senate was alerted to a situation that seemed to threaten or compromise the Republic, they pronounced a senatus consultum ultimum, whereby consuls (or their substitutes, and each citizen) were compelled to take all possible measures to assure the security of the State. The senatus consultum implied a decree by which one declared the tumultus, i.e., a state of emergency caused by internal disorder or an insurrection whose consequence was the proclamation of a iustutium.

The term iustitium – construed precisely like solstitium– literally signifies “to arrest, suspend the ius, the legal order.” The Roman grammarians explained the term in the following way: “When the law marks a point of arrest, just as the sun in its solstice.”

Consequently, the iustitium was not so much a suspension within the framework of the administration of justice, as a suspension of the law itself. If we would like to grasp the nature and structure of the state of emergency, we first must comprehend the paradoxical status of this legal institution that simply consists in the production of a leg. void, the production of a space entirely deprived by ius. Consider the iustitium mentioned by Cicero in one of his Philippic Discourses. Anthony’s army is marching toward Rome, and the consul Cicero addresses the Senate in the following terms: “I judge it necessary to declare tumultus, to proclaim iustitium and to prepare for combat.” The usual translation of iustitium as “legal vacancy” here seems quite pointless On the contrary, faced with a dangerous situation, the issue is to abolish the restrictions imposed by the laws on action by the magistrate – i.e., essentially the interdiction against putting a citizen to death without having recourse to popular judgment.

Faced with this anomic space that violently comes to coalesce wit that of the City, both ancient and modern writers seem to oscillate between two contradictory conceptions: either to make iustitium correspond to the idea of a complete anomy within which all power an all legal structures are abolished, or to conceive of it as the very plentitude of law where it coincides with the totality of the real.

Whence the question: what is the nature of the acts committed during iustitium? From the moment they are carried out in a legal void they ought to be considered as pure facts with no legal connotation: The question is important, because we are here contemplating sphere of action that implies above all the license to kill. Thus historians have asked the question of whether a magistrate who kills a citizen during a iustitium can be put on trial for homicide once the iustitium is over. Here we are faced with a type of action which appears t exceed the traditional legal distinction between legislation, execution, and transgression. The magistrate who acts during the iustitium is like an officer during the state of emergency, who neither carries out the law, nor transgresses it, just as little as he is in the process of creating a new law. To use a paradoxical expression, we could say that h is in the process of “un-executing” the law. But what does it meant un-execute the law? How should we conceive of this particular class within the entire range of human actions?

Let us now attempt to develop the results of our genealogical investigation into the iustitium from the perspective of a general theory c the state of emergency. – The state of emergency is not a dictatorship, but a space devoid of law. In the Roman Constitution, the dictator was a certain type c magistrate who received his power from a law voted on by the people The iustitium, on the contrary, just as the modern state of emergent does not imply the creation of a new magistrate, only the creation of zone of anomy in which all legal determinations find themselves inactivated. In this way, and in spite of the common view, neither Mussolini nor Hitler can be technically defined as dictators. Hitler, in particular, was Chancellor of the Reich, legally appointed by the president What characterizes the Nazi regime, and makes it into such a dangerous model, is that it allowed the Weimar Constitution to exist, while doubling it with a secondary and legally non-formalized structure the could not exist alongside the first without the support of a generalize state of emergency. – For one reason or another this space devoid of law seems so essential to the legal order itself that the latter makes every possible attempt to assure a relation to the former, as if the law in order to guarantee its functioning would necessarily have to entertain a relation t an anomy.

3. It is precisely in this perspective that we have to read the debate on the state of emergency which pitted Walter Benjamin and Carl Schmitt against each other between 1928 and 1940. The starting point of the discussion is normally located in Benjamin’s reading of Political Theology in 1923, and in the many citations from Schmitt’s theory of sovereignty that appeared in The Origin of German Tragic Drama. Benjamin’s acknowledging of Schmitt’s influence on his own thought has always been considered scandalous. Without going into the details of this demonstration, I think it possible to inverse the charge of scandal, in suggesting that Schmitt’s theory of sovereignty can be read as the response to Benjamin’s critique of violence. What is the problem Benjamin poses in his “Critique of Violence”? For him, the question is how to establish the possibility of a future violence outside of, or beyond the law, a violence which could rupture the dialectic between the violence that poses and the one that conserves the law. Benjamin calls this other violence “pure,” “divine,” or “revolutionary.” That which the law cannot stand, that which it resents as an intolerable menace, is the existence of a violence that would be exterior to it, and this not only because its finalities would be incompatible with the purpose of the legal order, but because of the “simple fact of its exteriority.”

Now we understand the sense in which Schmitt’s doctrine of sovereignty can be considered as a response to Benjamin’s critique. The state of emergency is precisely that space in which Schmitt attempts to comprehend and incorporate into the thesis that there is a pure violence existing outside of the law. For Schmitt, there is no such thing as pure violence, there is no violence absolutely exterior to the nomos, because revolutionary violence, once the state of emergency is established, it always finds itself included in the law. The state of emergency is thus the means invented by Schmitt to respond to Benjamin’s thesis that there is a pure violence.

The decisive document in the Benjamin/Schmitt dossier is surely the 8th of the theses on the concept of history: “The tradition of the oppressed teaches us that the ’state of emergency’ in which we live is not the exception but the rule. We must attain to a conception of history that is in keeping with this insight. Then we shall clearly realize that it is our task to bring about a real state of emergency, and this will improve our position in the struggle against Fascism.”

That the state of emergency since then has become the norm does not only signify that its undecidability has reached a point of culmination, but also that it is no longer capable of fulfilling the task assigned to it by Schmitt. According to him, the functioning of the legal order rests in the last instance on an arrangement, the state of emergency, whose aim it is to make the norm applicable by a temporary suspension of its exercise. But if the exception becomes the rule, this arrangement can no longer function and Schmitt’s theory of the state of emergency breaks down.

In this perspective, the distinction proposed by Benjamin between – an effective state of emergency and a fictitious state of emergency is essential, although little noticed. It can be found already in Schmitt, who borrowed it from French legal doctrine; but this latter, in line with his critique of the liberal idea of a state governed by law, deems any state of emergency which professes to be governed by law to be fictitious.

Benjamin reformulates the opposition in order to turn it against Schmitt: once the possibility of a state of emergency, in which the exception and the norm are temporally and spatially distinct, has fallen away, what becomes effective is the state of emergency in which we are living, and where we can no longer distinguish the rule. In this case, all fiction of a bond between it and law disappears: there is only a zone of anomy dominated by pure violence with no legal cover.

Now we are in a position to better understand the debate between Schmitt and Benjamin. The dispute occurs in that anomic zone which for Schmitt must maintain its connection to law at all costs, whereas for Benjamin it has to be twisted free and liberated from this relation. What is at issue here is the relation between violence and law, i.e., the status of violence as a cipher for political action. The logomachia over anomy seems to be equally decisive for Western politics as the “battle of the giants around being” that has defined Western metaphysics. To pure being as the ultimate stake of metaphysics, corresponds pure violence as the ultimate stake of the political; to the onto-theological strategy that wants pure being within the net of logos, corresponds the strategy of exception that has to secure the relation between violence and law. It is as if law and logos would need an anomic or “a-logic” zone of suspension in order to found their relation to life.

4. The structural proximity between law and anomy, between pure violence and the state of emergency also has, as is often the case, an inverted figure. Historians, ethnologists, and folklore specialists are well acquainted with anomic festivals, like the Roman Saturnalias, the charivari, and the Medieval carnival, that suspend and invert the legal and social relations defining normal order. Masters pass over into the service of servants, men dress up and behave like animals, bad habits and crimes that would normally be illegal are suddenly authorized. Karl Meuli was the first to emphasize the connection between these anomic festivals and the situations of suspended law that characterize certain archaic penal institutions. Here, as well as in the iustitium, it is possible to kill a man without going to trial, to destroy his house, and take his belongings. Far from reproducing a mythological past, the disorder of the carnival and the tumultuous destruction of the charivari re-actualize a real historical situation of anomy. The ambiguous connection between law and anomy is thus brought to light: the state of emergency is transformed into an unrestrained festival where one displays pure violence in order to enjoy it in full freedom.

5. The Western political system thus seems to be a double apparatus, founded in a dialectic between two heterogeneous and, as it were, antithetical elements; nomos and anomy, legal right and pure violence, the law and the forms of life whose articulation is to be guaranteed by the state of emergency. As long as these elements remain separated, their dialectic works, but when they tend toward a reciprocal indetermination and to a fusion into a unique power with two sides, when the state of emergency becomes the rule, the political system transforms into an apparatus of death. We ask: why does nomos have a constitutive need for anomy? Why does the politics of the West have to measure up to this interior void? What, then, is the substance of the political, if it is essentially assigned to this legal vacuum? As long as we are not able to respond to these questions, we can no more respond to this other question whose echo traverses all of Western political history: what does it mean to act politically?

An excerpt from State of Exception

FRANCE

We have already seen how the state of siege had its origin in France during the Revolution. After being established with the Constituent Assembly’s decree of July 8, 1791, it acquired its proper physiognomy as état de siège fictif or état de siège politique with the Directorial law of August 27, 1797, and, finally, with Napoleon’s decree of December 24, 1811. The idea of a suspension of the constitution (of the “rule of the constitution”) had instead been introduced, as we have also seen, by the Constitution of 22 Frimaire Year 8. Article 14 of the Charte of 1814 granted the sovereign the power to “make the regulations and ordinances necessary for the execution of the laws and the security of the State”; because of the vagueness of the formula, Chateaubriand observed “that it is possible that one fine morning the whole Charte will be forfeited for the benefit of Article 14.” The state of siege was expressly mentioned in the Acte additionel to the Constitution of April 22, 1815, which stated that it could only be declared with a law. Since then, moments of constitutional crisis in France over the course of the nineteenth and twentieth centuries have been marked by legislation on the state of siege. After the fall of the July Monarchy, a decree by the Constituent Assembly on June 24, 1848, put Paris in a state of siege and assigned General Cavaignac the task of restoring order in the city. Consequently, an article was included in the new constitution of November 4, 1848, establishing that the occasions, forms, and effects of the state of siege would be firmly set by a law. From this moment on, the dominant principle in the French tradition (though, as we will see, not without exceptions) has been that the power to suspend the laws can belong only to the same power that produces them, that is, parliament (in contrast to the German tradition, which entrusted this power to the head of state). The law of August 9, 1849 (which was partially restricted later by the law of April 4, 1878), consequently established that a political state of siege could be declared by parliament (or, additionally, by the head of state) in the case of imminent danger to external or internal security. Napoleon III had recourse several times to this law and, once installed in power, he transferred, in the constitution of January 1852, the exclusive power to proclaim a state of siege to the head of state. The Franco-Prussian War and the insurrection of the Commune coincided with an unprecedented generalization of the state of exception, which was proclaimed in forty departments and lasted in some of them until 1876. On the basis of these experiences, and after MacMahon’s failed coup d’état in May 1877, the law of 1849 was modified to establish that a state of siege could be declared only with a law (or, if the Chamber of Deputies was not in session, by the head of state, who was then obligated to convene parliament within two days) in the event of “imminent danger resulting from foreign war or armed insurrection” (law of April 3, 1878, Art. 1).

World War One coincided with a permanent state of exception in the majority of the warring countries. On August 2, 1914, President Poincaré issued a decree that put the entire country in a state of siege, and this decree was converted into law by parliament two days later. The state of siege remained in force until October 12, 1919. Although the activity of parliament, which was suspended during the first six months of the war, recommenced in January 1915, many of the laws passed were, in truth, pure and simple delegations of legislative power to the executive, such as the law of February 10, 1918, which granted the government an all but absolute power to regulate by decree the production and trade of foodstuffs. As Tingsten has observed, in this way the executive power was transformed into a legislative organ in the material sense of the term. In any case, it was during this period that exceptional legislation by executive [governativo] decree (which is now perfectly familiar to us) became a regular practice in the European democracies.

 Predictably, the expansion of the executive’s powers into the legislative sphere continued after the end of hostilities, and it is significant that military emergency now ceded its place to economic emergency (with an implicit assimilation between war and economics). In January 1924, at a time of serious crisis that threatened the stability of the franc, the Poincaré government asked for full powers over financial matters. After a bitter debate, in which the opposition pointed out that this was tantamount to parliament renouncing its own constitutional powers, the law was passed on March 22, with a four-month limit on the government’s special powers. Analogous measures were brought to a vote in 1935 by the Laval government, which issued more than five hundred decrees “having force of law” in order to avoid the devaluation of the franc. The opposition from the left, led by Léon Blum, strongly opposed this “fascist” practice, but it is significant that once the Left took power with the Popular Front, it asked parliament in June 1937 for full powers in order to devalue the franc, establish exchange control, and impose new taxes. As has been observed, this meant that the new practice of legislation by executive [governativo] decree, which had been inaugurated during the war, was by now a practice accepted by all political sides. On June 30, 1937, the powers that had been denied Blum were granted to the Chautemps government, in which several key ministries were entrusted to nonsocialists. And on April 10, 1938, Édouard Daladier requested and obtained from parliament exceptional powers to legislate by decree in order to cope with both the threat of Nazi Germany and the economic crisis. It can therefore be said that until the end of the Third Republic “the normal procedures of parliamentary democracy were in a state of suspension.” When we study the birth of the so-called dictatorial regimes in Italy and Germany, it is important not to forget this concurrent process that transformed the democratic constitutions between the two world wars. Under the pressure of the paradigm of the state of exception, the entire politico-constitutional life of Western societies began gradually to assume a new form, which has perhaps only today reached its full development. In December 1939, after the outbreak of the war, the Daladier government obtained the power to take by decree all measures necessary to ensure the defense of the nation. Parliament remained in session (except when it was suspended for a month in order to deprive the communist parliamentarians of their immunity), but all legislative activity lay firmly in the hands of the executive. By the time Marshal Pétain assumed power, the French parliament was a shadow of itself. Nevertheless, the Constitutional Act of July 11, 1940, granted the head of state the power to proclaim a state of siege throughout the entire national territory (which by then was partially occupied by the German army).

 In the present constitution, the state of exception is regulated by Article 16, which De Gaulle had proposed. The article establishes that the president of the Republic may take all necessary measures “when the institutions of the Republic, the independence of the Nation, the integrity of its territory, or the execution of its international commitments are seriously and immediately threatened and the regular functioning of the constitutional public powers is interrupted.” In April 1961, during the Algerian crisis, De Gaulle had recourse to Article 16 even though the functioning of the public powers had not been interrupted. Since that time, Article 16 has never again been invoked, but, in conformity with 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.

 GERMANY

 The history of Article 48 of the Weimar Constitution is so tightly woven into the history of Germany between the wars that it is impossible to understand Hitler’s rise to power without first analyzing the uses and abuses of this article in the years between 1919 and 1933. Its immediate precedent was Article 68 of the Bismarckian Constitution, which, in cases where “public security was threatened in the territory of the Reich,” granted the emperor the power to declare a part of the Reich to be in a state of war (Kriegszustand), whose conditions and limitations followed those set forth in the Prussian law of June 4, 1851, concerning the state of siege. Amid the disorder and rioting that followed the end of the war, the deputies of the National Assembly that was to vote on the new constitution (assisted by jurists among whom the name of Hugo Preuss stands out) included an article that granted the president of the Reich extremely broad emergency [eccezionali] powers. The text of Article 48 reads, “If security and public order are seriously [erheblich] disturbed or threatened in the German Reich, the president of the Reich may take the measures necessary to reestablish security and public order, with the help of the armed forces if required. To this end he may wholly or partially suspend the fundamental rights [Grundrechte] established in Articles 114, 115, 117, 118, 123, 124, and 153.” The article added that a law would specify in detail the conditions and limitations under which this presidential power was to be exercised. Since that law was never passed, the president’s emergency [eccezionali] powers remained so indeterminate that not only did theorists regularly use the phrase “presidential dictatorship” in reference to Article 48, but in 1925 Schmitt could write that “no constitution on earth had so easily legalized a coup d’état as did the Weimar Constitution.”

 Save for a relative pause between 1925 and 1929, the governments of the Republic, beginning with Brüning’s, made continual use of Article 48, proclaiming a state of exception and issuing emergency decrees on more than two hundred and fifty occasions; among other things, they employed it to imprison thousands of communist militants and to set up special tribunals authorized to pronounce capital sentences. On several occasions, particularly in October 1923, the government had recourse to Article 4 to cope with the fall of the mark, thus confirming the modern tendency to conflate politico-military and economic crises.

 It is well known that the last years of the Weimar Republic passed entirely under a regime of the state of exception; it is less obvious to note that Hitler could probably not have taken power had the country not been under a regime of presidential dictatorship for nearly three years and had parliament been functioning. In July 1930, the Brüning government was put in the minority, but Brüning did not resign. Instead, President Hindenburg granted him recourse to Article 48 and dissolved the Reichstag. From that moment on, Germany in fact ceased to be a parliamentary republic. Parliament met only seven times for no longer than twelve months in all, while a fluctuating coalition of Social Democrats and centrists stood by and watched a government that by then answered only to the president of the Reich. In 1932, Hindenburg—reelected president over Hitler and Thälmann—forced Brüning to resign and named the centrist von Papen to his post. On June 4, the Reichstag was dissolved and never reconvened until the advent of Nazism. On July 20, a state of exception was proclaimed in the Prussian territory, and von Papen was named Reich Commissioner for Prussia—ousting Otto Braun’s Social Democratic government.

 The state of exception in which Germany found itself during the Hindenburg presidency was justified by Schmitt on a constitutional level by the idea that the president acted as the “guardian of the constitution;” but the end of the Weimar Republic clearly demonstrates that, on the contrary, a “protected democracy” is not a democracy at all, and that the paradigm of constitutional dictatorship functions instead as a transitional phase that leads inevitably to the establishment of a totalitarian regime.

 Given these precedents, it is understandable that the constitution of the Federal Republic did not mention the state of exception. Nevertheless, on June 24, 1968, the “great coalition” of Christian Democrats and Social Democrats passed a law for the amendment of the constitution (Gesetz zur Ergänzung des Grundgesetzes) that reintroduced the state of exception (defined as the “state of internal necessity,” innere Notstand). However, with an unintended irony, for the first time in the history of the institution, the proclamation of the state of exception was provided for not simply to safeguard public order and security, but to defend the “liberal-democratic constitution.” By this point, protected democracy had become the rule.

 SWITZERLAND

 On August 3, 1914, the Swiss Federal Assembly granted the Federal Council “the unlimited power to take all measures necessary to guarantee the security, integrity, and neutrality of Switzerland.” This unusual act—by virtue of which a non-warring state granted powers to the executive that were even vaster and vaguer than those received by the governments of countries directly involved in the war—is of interest because of the debates it provoked both in the assembly itself and in the Swiss Federal Court when the citizens objected that the act was unconstitutional. The tenacity with which on this occasion the Swiss jurists (nearly thirty years ahead of the theorists of constitutional dictatorship) sought (like Waldkirch and Burckhardt) to derive the legitimacy of the state of exception from the text of the constitution itself (specifically, Article 2, which read, “the aim of the Confederation is to ensure the independence of the fatherland against the foreigner [and] to maintain internal tranquility and order”), or (like Hoerni and Fleiner) to ground the state of exception in a law of necessity “inherent in the very existence of the State,” or (like His) in a juridical lacuna that the exceptional provisions must fill, shows that the theory of the state of exception is by no means the exclusive legacy of the antidemocratic tradition.

 ITALY

 In Italy the history and legal situation of the state of exception are of particular interest with regard to legislation by emergency executive [governativi] decrees (the so-called law-decrees). Indeed, from this viewpoint one could say that Italy functioned as a true and proper juridico-political laboratory for organizing the process (which was also occurring to differing degrees in other European states) by which the law-decree “changed from a derogatory and exceptional instrument for normative production to an ordinary source for the production of law”. But this also means that one of the essential paradigms through which democracy is transformed from parliamentary to executive [governamentale] was elaborated precisely by a state whose governments were often unstable. In any case, it is in this context that the emergency decree’s pertinence to the problematic sphere of the state of exception comes clearly into view. The Albertine Statute (like the current Republican Constitution) made no mention of the state of exception. Nevertheless, the governments of the kingdom resorted to proclaiming a state of siege many times: in Palermo and the Sicilian provinces in 1862 and 1866, in Naples in 1862, in Sicily and Lunigiana in 1894, and in Naples and Milan in 1898, where the repression of the disturbances was particularly bloody and provoked bitter debates in parliament. The declaration of a state of siege on the occasion of the earthquake of Messina and Reggio Calabria on December 28, 1908 is only apparently a different situation. Not only was the state of siege ultimately proclaimed for reasons of public order—that is, to suppress the robberies and looting provoked by the disaster—but from a theoretical standpoint, it is also significant that these acts furnished the occasion that allowed Santi Romano and other Italian jurists to elaborate the thesis (which we examine in some detail later) that necessity is the primary source of law.

 In each of these cases, the state of siege was proclaimed by a royal decree that, while not requiring parliamentary ratification, was nevertheless always approved by parliament, as were other emergency decrees not related to the state of siege (in 1923 and 1924 several thousand outstanding law-decrees issued in the preceding years were thus converted into law). In 1926 the Fascist regime had a law issued that expressly regulated the matter of the law-decrees. Article 3 of this law established that, upon deliberation of the council of ministers, “norms having force of law” could be issued by royal decree “(1) when the government is delegated to do so by a law within the limits of the delegation, and (2) in extraordinary situations, in which it is required for reasons of urgent and absolute necessity. The judgment concerning necessity and urgency is not subject to any oversight other than parliament’s political oversight.” The decrees provided for in the second clause had to be presented to parliament for conversion into law; but parliament’s total loss of autonomy during the Fascist regime rendered this condition superfluous.

 Although the Fascist governments’ abuse of emergency decrees was so great that in 1939 the regime itself felt it necessary to limit their reach, Article 77 of the Republican Constitution established with singular continuity that “in extraordinary situations of necessity and emergency” the government could adopt “provisional measures having force of law,” which had to be presented the same day to parliament and which went out of effect if not converted into law within sixty days of their issuance.

 It is well known that since then the practice of executive [governamentale] legislation by law-decrees has become the rule in Italy. Not only have emergency decrees been issued in moments of political crisis, thus circumventing the constitutional principle that the rights of the citizens can be limited only by law (see, for example, the decrees issued for the repression of terrorism: the law-decree of March 28, 1978, n. 59, converted into the law of May 21 1978, n. 191 [the so-called Moro Law], and the law-decree of December 15, 1979, n. 625, converted into the law of February 6, 1980, n. 15), but law-decrees now constitute the normal form of legislation to such a degree that they have been described as “bills strengthened by guaranteed emergency.” This means that the democratic principle of the separation of powers has today collapsed and that the executive power has in fact, at least partially, absorbed the legislative power. Parliament is no longer the sovereign legislative body that holds the exclusive power to bind the citizens by means of the law: it is limited to ratifying the decrees issued by the executive power. In a technical sense, the Italian Republic is no longer parliamentary, but executive [governamentale]. And it is significant that though this transformation of the constitutional order (which is today underway to varying degrees in all the Western democracies) is perfectly well known to jurists and politicians, it has remained entirely unnoticed by the citizens. At the very moment when it would like to give lessons in democracy to different traditions and cultures, the political culture of the West does not realize that it has entirely lost its canon.

 ENGLAND

 The only legal apparatus in England that is comparable to the French état de siège goes by the term martial law; but this concept is so vague that it has been rightly described as an “unlucky name for the justification by the common law of acts done by necessity for the defence of the Commonwealth when there is war within the realm.” This, however, does not mean that something like a state of exception could not exist. In the Mutiny Acts, the Crown’s power to declare martial law was generally confined to times of war; nevertheless, it necessarily entailed sometimes serious consequences for the civilians who found themselves factually involved in the armed repression. Thus Schmitt sought to distinguish martial law from the military tribunals and summary proceedings that at first applied only to soldiers, in order to conceive of it as a purely factual proceeding and draw it closer to the state of exception: “Despite the name it bears, martial law is neither a right nor a law in this sense, but rather a proceeding guided essentially by the necessity of achieving a certain end.”

World War One played a decisive role in the generalization of exceptional executive [governamentali] apparatuses in England as well. Indeed, immediately after war was declared, the government asked parliament to approve a series of emergency measures that had been prepared by the relevant ministers, and they were passed virtually without discussion. The most important of these acts was the Defence of the Realm Act of August 4, 1914, known as DORA, which not only granted the government quite vast powers to regulate the wartime economy, but also provided for serious limitations on the fundamental rights of the citizens (in particular, granting military tribunals jurisdiction over civilians). The activity of parliament saw a significant eclipse for the entire duration of the war, just as in France. And in England too this process went beyond the emergency of the war, as is shown by the approval—on October 29, 1920, in a time of strikes and social tensions—of the Emergency Powers Act. Indeed, Article 1 of the act stated that

if at any time it appears to His Majesty that any action has been taken or is immediately threatened by any persons or body of persons of such a nature and on so extensive a scale as to be calculated, by interfering with the supply and distribution of food, water, fuel, or light, or with the means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of life, His Majesty may, by proclamation (hereinafter referred to as a proclamation of emergency), declare that a state of emergency exists.

Article 2 of the law gave His Majesty in Council the power to issue regulations and to grant the executive the “powers and duties…necessary for the preservation of the peace,” and it introduced special courts (“courts of summary jurisdiction”) for offenders. Even though the penalties imposed by these courts could not exceed three months in jail (“with or without hard labor”), the principle of the state of exception had been firmly introduced into English law.

 UNITED STATES

 The place—both logical and pragmatic—of a theory of the state of exception in the American constitution is in the dialectic between the powers of the president and those of Congress. This dialectic has taken shape historically (and in an exemplary way already beginning with the Civil War) as a conflict over supreme authority in an emergency situation; or, in Schmittian terms (and this is surely significant in a country considered to be the cradle of democracy), as a conflict over sovereign decision.

 The textual basis of the conflict lies first of all in Article 1 of the constitution, which establishes that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” but does not specify which authority has the jurisdiction to decide on the suspension (even though prevailing opinion and the context of the passage itself lead one to assume that the clause is directed at Congress and not the president). The second point of conflict lies in the relation between another passage of Article 1 (which declares that the power to declare war and to raise and support the army and navy rests with Congress) and Article 2, which states that “the President shall be Commander in Chief of the Army and Navy of the United States.”

 Both of these problems reach their critical threshold with the Civil War (1861–1865). Acting counter to the text of Article 1, on April 15, 1861, Lincoln decreed that an army of seventy-five thousand men was to be raised and convened a special session of Congress for July 4. In the ten weeks that passed between April 15 and July 4, Lincoln in fact acted as an absolute dictator (for this reason, in his book Dictatorship, Schmitt can refer to it as a perfect example of commissarial dictatorship. On April 27, with a technically even more significant decision, he authorized the General in Chief of the Army to suspend the writ of habeas corpus whenever he deemed it necessary along the military line between Washington and Philadelphia, where there had been disturbances. Furthermore, the president’s autonomy in deciding on extraordinary measures continued even after Congress was convened (thus, on February 14, 1862, Lincoln imposed censorship of the mail and authorized the arrest and detention in military prisons of persons suspected of “disloyal and treasonable practices”).

 In the speech he delivered to Congress when it was finally convened on July 4, the president openly justified his actions as the holder of a supreme power to violate the constitution in a situation of necessity. “Whether strictly legal or not,” he declared, the measures he had adopted had been taken “under what appeared to be a popular demand and a public necessity” in the certainty that Congress would ratify them. They were based on the conviction that even fundamental law could be violated if the very existence of the union and the juridical order were at stake (“Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?”

 It is obvious that in a wartime situation the conflict between the president and Congress is essentially theoretical. The fact is that although Congress was perfectly aware that the constitutional jurisdictions had been transgressed, it could do nothing but ratify the actions of the president, as it did on August 6, 1861. Strengthened by this approval, on September 22, 1862, the president proclaimed the emancipation of the slaves on his authority alone and, two days later, generalized the state of exception throughout the entire territory of the United States, authorizing the arrest and trial before courts martial of “all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of the United States.” By this point, the president of the United States was the holder of the sovereign decision on the state of exception.

 According to American historians, during World War One President Woodrow Wilson personally assumed even broader powers than those Abraham Lincoln had claimed. It is, however, necessary to specify that instead of ignoring Congress, as Lincoln had done, Wilson preferred each time to have the powers in question delegated to him by Congress. In this regard, his practice of government is closer to the one that would prevail in Europe in the same years, or to the current one, which instead of declaring the state of exception prefers to have exceptional laws issued. In any case, from 1917 to 1918, Congress approved a series of acts (from the Espionage Act of June 1917 to the Overman Act of May 1918) that granted the president complete control over the administration of the country and not only prohibited disloyal activities (such as collaboration with the enemy and the diffusion of false reports), but even made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.”

 Because the sovereign power of the president is essentially grounded in the emergency linked to a state of war, over the course of the twentieth century the metaphor of war becomes an integral part of the presidential political vocabulary whenever decisions considered to be of vital importance are being imposed. Thus, in 1933, Franklin D. Roosevelt was able to assume extraordinary powers to cope with the Great Depression by presenting his actions as those of a commander during a military campaign:

 I assume unhesitatingly the leadership of this great army of our people dedicated to a disciplined attack upon our common problems.…I am prepared under my constitutional duty to recommend the measures that a stricken Nation in the midst of a stricken world may require.…But in the event that the Congress shall fail to take [the necessary measures] and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis—broad Executive power to wage war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.

 It is well not to forget that, from the constitutional standpoint, the New Deal was realized by delegating to the president (through a series of statutes culminating in the National Recovery Act of June 16, 1933) an unlimited power to regulate and control every aspect of the economic life of the country—a fact that is in perfect conformity with the already mentioned parallelism between military and economic emergencies that characterizes the politics of the twentieth century.

 The outbreak of World War Two extended these powers with the proclamation of a “limited” national emergency on September 8, 1939, which became unlimited on May 27, 1941. On September 7, 1942, while requesting that Congress repeal a law concerning economic matters, the president renewed his claim to sovereign powers during the emergency: “In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.…The American people can…be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.” The most spectacular violation of civil rights (all the more serious because of its solely racial motivation) occurred on February 19, 1942, with the internment of seventy thousand American citizens of Japanese descent who resided on the West Coast (along with forty thousand Japanese citizens who lived and worked there).

 President Bush’s decision to refer to himself constantly as the “Commander in Chief of the Army” after September 11, 2001, must be considered in the context of this presidential claim to sovereign powers in emergency situations. If, as we have seen, the assumption of this title entails a direct reference to the state of exception, then Bush is attempting to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible.

 ”Infinite Justice”. This was the initial name given to the Pentagon’s offensive against that fuzzy-contoured enemy, referred to by the term of ‘terrorism’. As we know, the name was quickly changed. It had been, as we were told, a case of language excess on the part of a president still inexperienced in the art of nuances. If he had wanted bin Laden “dead or alive”, it was obviously due to having seen too many Westerns at too young an age.

 Such an explanation left no one convinced. That’s because the ‘dead or alive’ principle isn’t the one from Westerns. On the contrary, it’s quite common to find sheriffs risking their skin to save assassins from a lynch mob, and hand them over to Justice afterward. Infinite Justice, as opposed to the Far West’s whole morality, means justice without limits. It’s justice that ignores all of the categories by which its practice is traditionally circumscribed: distinguishing legal punishment from the vengeance of individuals; separating the law from politics, ethics or religion; separating police forms by which criminals are hunted down from the military forms by which armies engage in battle.

 From that point of view, there was no language excess. ‘Nuances’ would be inappropriate indeed. These traces are precisely what characterize the retaliatory operations undertaken by the USA. They involve eliminating the differences that separate war and the police from all the legal forms by means of which we’ve sought to specify and limit the action of war onto justice. We’re no longer talking about ‘dead or alive’, except to say that nobody knows whether the accused is dead or alive. Yet no one knows exactly what the charge is under which the American military is detaining, with the intension of trying, prisoners who benefit neither from POW status nor from the ordinary guarantees granted to defendants with proceedings brought against them. ‘Infinite justice’ states exactly what’s at stake: the assertion of a right identical to the omnipotence hitherto reserved for the vindictive God. All traditional distinctions end up by being abolished with the erasure of international forms of law.

 To be sure, this erasure is already the principle of terrorist action, to which political forms and the norms of law are also indifferent. But ‘infinite justice’ is not only the answer to the adversary’s provocation, thus being compelled to share the same field as him. It translates as well the strange status that the erasure of the political nowadays grants to law, within nations and amongst them.

 Reflecting on the current state of law reveals an extraordinary inversion of things. In the 1990’s, the undoing of the Soviet empire and the weakening of social movements in major Western countries were usually celebrated as utopias being liquidated from real and social democracy to the benefit of the rules of the State of Right. Whereupon unleashed ethnic conflicts and religious fundamentalism ended by contradicting this simple philosophy of history. But identifying Western triumph as the State of Right’s has also proved to be problematic. That’s because at the very heart of Western powers and in their modes of foreign intervention, the relation between right and fact has evolved in such as way as to tend increasingly toward erasing the boundaries of law.

 In these countries, we’ve seen two phenomena emerge. On the one hand, there’s an interpretation of law in terms of the rights granted to a whole series of groups. On the other, legislative practices have aimed at harmonizing the letter of the law entirely with new lifestyles and workstyles, new forms of technology, and the family or social relationships.

This is how the political forum, shaped in the gap between the law’s abstract literalness and the polemics over its interpretations, has been found to have shrunken as much. Thus celebrated, the law increasingly tends to be the record of a community’s lifestyles. Ethical symbolization has substituted the political symbolization of power and its limits, and the law’s ambivalence. What’s now familiar to us is a relation of consensual inter-expression between the fact of a society’s state and the norm of the law.

What the American response asserts is the unmediated likeness of law and fact in the way a community lives. Yet this is also what the American Constitution’s dominant representation symbolizes: the ethical identity between a particular lifestyle and a universal system of values. As we know, ‘ethos’ means sojourn and lifestyle before referring to a system of moral values. The recent manifesto issued by American intellectuals in support of George W. Bush’s policies highlighted this point well: the United States are first and foremost a community united by common moral and religious values, an ethical community more than one of law and politics. The Good, by which the community is founded, is therefor the identity between law and fact. And the crime perpetrated against thousands of American lives can be immediately considered a crime perpetrated against the Empire of Good itself.

 Yet for some time already this rise of ethics to the detriment of justice has characterized the forms by which the Western powers have intervened abroad. Blurring the limits between fact and law has taken on another face, one opposite and complementary to consensual harmony, i.e. the face of the humanitarian and ‘humane interference’.

 The ‘right of humane interference’ has enabled the protection of some populations of the former-Yugoslavia from ethnic liquidation. However, this was carried out at the cost of blurring symbolic boundaries as well as State borders. It has not only consecrated giving up a structural principle of international law, i.e. the principle of non-inference–whose virtues were admittedly ambiguous. It especially introduced a destructive principle of limitlessness regarding the very idea of the gap separating law and fact, which otherwise endows the law with its status.

Back in the days of the Vietnam War or of the coups American power engineered more or less directly in various regions throughout the world, there existed an explicit or latent opposition between the great principles as asserted by the Western powers and the practices subordinating those principles to their vital interests. The anti-imperialist mobilizations of the 1960’s and 1970’s had denounced this split between the founding principles and real practices. Nowadays the polemics over means and ends seems to have vanished.

 The principle behind this disappearance is represented by the absolute victim, a victim of infinite evil, forcing a response of infinite reparation. This ‘absolute’ right of the victim has come to full fruition in the framework of ‘humane’ war. It was backed up during the last quarter century by the major intellectual movement that worked on theorizing infinite crime.

We’ve undoubtedly not heeded the specific features enough of what could be called the second denunciation of Soviet crimes and the Nazi genocide. The first denunciation had aimed at establishing the reality behind the facts while also reinforcing the determination of Western democracies to struggle against an ever-present and ever-threatening totalitarianism. The second kind, developed during the 1970’s as a record of communism, or in the 1980’s when returning to the way in which the European Jewry was exterminated, has acquired a whole new meaning. Not only have the crimes been transformed into the monstrous effects of regimes that have to be fought against, but into the forms whereby an infinite, unthinkable and irreparable crime was made manifest_the work of an Evil power exceeding all legal and political measure. Ethics has become the way to think this infinite evil, which has created an irremediable break in history.

The ultimate consequences of the excess of ethics over law and politics is the paradoxical constitution of an individual’s absolute right whose rights have, in fact, been absolutely negated. This individual actually appears as the victim of an infinite Evil against which the fight is itself infinite. This is the point at which the one defending the victim’s rights inherits absolute right.

The unlimited feature of the wrong perpetrated against the victim justifies his counsel’s unlimited right. American reparation for the absolute crime perpetrated against American lives has brought the process to its culmination. The obligation of attending to the victims of absolute Evil has become identical to the fight without limits against this evil. And this is identified with deploying unlimited military power, acting like a police force in charge of restoring order to every part of the world where Evil can find shelter. This military power is also a legal one, exercising the mythical power of Vengence in hot pursuit of Crime against all alleged accomplices of infinite Evil.

As the saying goes, unlimited right is identical to non-right. Victims and culprits alike fall into the cercle of ‘infinite justice’. These days this translates into the total indeterminacy of the law as it deals with the status of the American army’s prisoners and the way of qualifying the facts held against them.

 Hegel had already sunk into the night of the Absolute in which “all cows are gray”. The lack of ethical distinction, in which politics and the law drown nowadays, has transformed the prisoners of Guantanamo Bay into captives of the same type of infinite, with gray being switched to orange.

Legal and political symbolization has been slowly substituted by another ethical and police symbolization of the lives of so-called democratic communities and of their relations with another world, identified by the sole reign of ethnic and fundamentalist powers. In the one corner, the world of good: that of consensus eliminating political litigation in the joyous harmonizing of right and fact, ways of being and values. In the other: the world of evil, in which wrong is made infinite, and where it can only be a matter of war unto death.

 Translated for CounterPunch by Norman Madarasz

 http://www.counterpunch.org/ranciere0430.html

 [from the April 1, 2002 issue of the Nation]

 Although the Bush Administration conceded on February 7 that the Taliban detainees at Guantánamo Bay deserve to be covered by the Geneva Conventions, the Administration refused to allow them, or any of the 186 detainees at that time (the number now stands at about 300), prisoner-of-war status. One might reasonably expect that the Geneva Conventions and the protocols of international law would offer a promising legal avenue for contesting the US government’s detention and treatment of these prisoners, and indeed they provide some useful resources for this purpose. But the 1949 Geneva Convention accord on the treatment of prisoners of war, based on an outmoded notion of war and soaked in bias toward the nation-state, makes it difficult for POWs who do not belong to recognized states with conventional armies to lay claim to protection under international law.

The Administration claims that these prisoners do not merit POW status under the Geneva Conventions, which stipulate that POWs must belong to a “High Contracting Party” and have operated in the service of “regular armed forces” in a conventional war. But the United States, understood as the “Detaining Power” under the conventions, is required to treat these prisoners as POWs until a “competent tribunal” is set up to decide the question. At the same time, the paradoxical fact is that the Geneva Convention accord on POWs, which seeks to protect prisoners of war from hostile governments that may well be unwilling to recognize their rights to fair treatment, also functions as a civilizational discourse that favors prisoners who belong to established nation-states. So while it is important to insist that international law ought to be followed in this case, we also need a critique and expansion of this law. And the law must be changed not only in light of the new character of war but to insure that those engaged in military action on behalf of stateless organizations receive the same protections as those who fight for established states.

 On January 22 Defense Secretary Donald Rumsfeld explained why these prisoners should not be called “prisoners of war,” and why he prefers to call them “battlefield detainees” or “unlawful combatants.” For the United States, these are not POWs, because this is no ordinary war; it is not primarily a battle between recognizable nation-states or, in the parlance of the Geneva Conventions, “High Contracting Parties.” The term they have come up with, “battlefield detainees,” designates a place not yet under the law or, indeed, outside the law in a more or less permanent way. It is unclear whether some of these prisoners will ever be tried, and Rumsfeld at the end of February indicated (and recently reaffirmed) that they might be held “indefinitely” without trial. In this context, the hunger strikes in which many prisoners have engaged might be understood as another version of a suicide tactic, practiced by those who stand little chance of achieving the status of legal subjects in an appropriate trial. If they are tried, it is not ruled out that they could be sentenced to death, without any rights of appeal, by a military tribunal. The Geneva Conventions rule out the possibility of a secret military tribunal for POWs and guarantee trials that follow the laws governing civilians or, minimally, the same kinds of courts to which US POWs are subject. But the United States has allowed no legal counsel for these prisoners and no guarantee of a trial that would follow the stipulated rules, and it clearly has no intention of doing so, even though it seems willing in some instances to allow repatriation to nations such as Britain.

 The Geneva Conventions and the United States both engage in the questionable practice of distributing rights of protection differentially, depending on a prisoner’s affiliation with a state-based military operation. Instead of asserting an entitlement to protection against degradation and violence and rights to a fair trial as a universal right, the Geneva accord on POWs applies a selective criterion to the question of who merits protection and who does not, and it clearly privileges those prisoners in wars between recognizable states. The Conventions accept conventional war, but have not been articulated well enough to have a clear application in the present circumstance.

 To its credit, on the other hand, the Geneva accord on POWs is explicit that the term “POWs” includes those who belong to “regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” In other words, the detaining power, in this case the United States, may not recognize the authority to which these prisoners profess allegiance, but that should have no bearing on their status. Any doubts about that status are to be settled by a competent tribunal convened under the terms of the accord. Given that the Guantánamo prisoners’ status is obviously open to debate, the Bush Administration’s claim that there is “no doubt” about their standing appears to be a cynical manipulation of the Conventions. The United States purports to be acting consistently with the Geneva Conventions, but it clearly ignores their stipulations, allocating to Rumsfeld’s Department of Defense the right to determine the status of the prisoners and refusing to yield to the authority of a competent tribunal.

 Although the United States announced that it would recognize the Taliban, the representative government of Afghanistan at the time of war, as an entitled state under the Geneva Conventions, it nonetheless depleted the Conventions of their binding force by continuing to deny the Taliban “prisoner of war” status. Indeed, the United States says only that its actions are “consistent” with the Geneva Conventions in treating the prisoners humanely, but it ignores the definition of humane treatment that the accord supplies (access to legal counsel, fair trials, limited time in detention, etc.). Given this flagrant violation, it makes sense to call for the Geneva Conventions to have binding force. Unfortunately, however, the Conventions are only of limited help here, since they are pervasively biased toward the nation-state and unprepared to furnish dictates for the present and future forms that armed conflict might take. The Conventions aid and abet the United States by guaranteeing prisoners not affiliated with state-centered military actions fewer rights than those who are. Only those combatants who operate in conventional ways qualify as “regular armed forces” under Article Four of the accord on POWs: For instance, members of militias have to belong to a “Party” to the conflict, whether directly or indirectly, and to belong to a “Party” means, effectively, to belong to a nation-state or to have an established relationship to one (ironically, the United States assumed this connection of Al Qaeda to the Taliban when it began its war, identifying the one with the other when the United States targeted nations that “harbor” terrorists, but now backs off from that connection when it would entitle captured Al Qaeda members to prisoner-of-war status). Those militias must be organized by a clear chain of command with “a person” commanding his subordinates; they have to wear “a fixed distinctive sign recognizable at a distance”; they have to carry arms openly; they have to conduct their operations according to the “laws and customs of war.”

 Thus the Geneva Conventions not only presuppose a conventional sense of war (where the model appears to be based on wars prior to its drafting in 1949) and of what a “legal combatant” is, but they enforce that sense, operating as an instrument not only of the nation-state but of the geopolitical distribution of legitimate and illegitimate violence. Legitimate violence is waged by nation-states; groups of armed resisters who are directly representing no nation-state in particular, or several in tangential ways, are, de facto, illegal combatants. Only “High Parties” can legally go to war and deserve the human rights protections guaranteed by the Geneva Conventions. The notion of the legitimate warrior is in part drawn from World War I, it seems, when everyone could be “seen” on the battlefield. Of course, this requirement is untenable, since it implies that there are no undercover actions in legitimate war, no stealth bombers, no camouflage. And the fact that the Al Qaeda network has defined itself as a group whose chain of command (if it can even be called that) is systematically effaced from public detection would seem to be anathema to the Conventions’ conception of war.

 Hence, we can make sense of Speaker of the House Dennis Hastert’s remarks to the press about the prisoners in Guantánamo: “These aren’t military people. They don’t belong to a country, they don’t wear a uniform, they’re not part of an army. It’s a unique situation and we’ll have to deal with it in a unique way.” “Unique” thus becomes the word that suggests that the law has limited applicability here, that we are not in a situation in which rules regarding humane treatment can be extended universally, since there are exceptions to the universal, and we are dealing with the exception here. Moreover, we can see that the claim to humane treatment is not exactly universal in the Geneva Conventions–in fact, the word “universal” is never used. Where the term is implied, it seems that the discourse of universality is limited to those individuals understood to represent state-centered conflict taking place in already established and recognizable forms, where the norms of something called “civilization” apply. Article Three of the accord on POWs makes this clear, for instance, when it states that POWs will be protected from “the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people.” Implicitly, the accord concedes that there are “uncivilized people”; it remains unclear who they are and whether, in the eyes of the “civilized,” they are entitled to rights otherwise conceived as having universal applicability.

The accord assumes the perspective of the civilized, and it extends the discourse of civilization in letting us know what is and is not a civilized war. The very conceit of a civilized war betrays the hegemonic action of the accord itself, a document and a contract that seeks to define civilization in its modes of war and in its procedures of accountability over and against a barbaric other, thereby occluding its own barbarism or, rather, encoding its own in an elaborate proceduralism that it arbitrarily applies and suspends.

Yet given the extralegal solutions that the Bush government is now proposing–including permanent detention without trials for many–it nonetheless makes sense to return to that document, to see what might be wrought from what good resources it does provide. The Geneva Convention accord on POWs can be read in at least two ways, and it will be important to produce and insist upon one public reading rather than another. The Geneva Convention principles, written in August 1949, make clear that POWs do not have to be members of regular armies, considered as armies of a state, as long as they belong to a “Party”–understood as “High” and “Contracting”–to the conflict. So it is possible to read Al Qaeda’s relation to Afghanistan as precisely such a relation to a party. Moreover, the Conventions warrant a competent court or tribunal to intervene and decide the question of the prisoners’ standing as POWs; prior to such a determination, their POW status is supposed to be assumed. Further, the detaining power is strictly obligated to treat detainees humanely–as the accord defines that, including access to legal counsel–while their standing is being determined.

In the end, however, even more important than insisting on a reading of the Conventions that protects the Guantánamo Bay detainees is producing a document with international standing that radically extends the applicability of their protections and tries to make good on a promise of universal rights to humane treatment. It also seems crucial that we consider how to apply the Geneva Conventions to new forms of conflict, ones that do not conform to those conventions of war established in 1949. After all, this is a war that is no war. As a shorter-term operation, it is waged against a military network composed of people who are conceived as illegal combatants. But the war is not over; it appears that it will now be continued in such places as Indonesia, Iraq, North Korea, Iran, Pakistan and the Philippines. And military action continues in Afghanistan. As a war against terrorism on many fronts (and not necessarily on nation-states), it is already a war without end, and without a geographic boundary or a state-defined enemy in the sense that the Geneva Conventions imagine wars to have–that is, wars declared and concluded between established (not even emergent) nation-states.

 Since we are already outside the parameters of conventional war, we are apparently outside the parameters of international legal jurisdiction as well. Guantánamo Bay makes this explicit: It is a land leased by the United States, but not “US soil,” which would, constitutionally, give rights of legal appeal to the prisoners detained there. When Rumsfeld says that this is no regular situation, since the United States is fighting a terrorist organization, and not a country, he implies that the extraordinary character of terror justifies the suspension of law in the very act of responding to terror. The detention of violent soldiers is justified, since they are still and always fighting in his view and they represent no country–unstoppable vessels of uncivilized violence. They are outside the law, outside the framework of countries at war imagined by the law, and so outside the protocols governing civilized conflict.

 Just as a distinction is drawn between legitimate violence and illegitimate violence according to whether the combatants are affiliated with states, various forms of political violence are now commonly called “terrorism,” not because there are distinguishable valences of violence, but as a way of delegitimizing violence waged by, or in the name of, authorities deemed illegitimate by established states or, indeed, those that threaten the hegemony of the nation-state itself. As a result, we have the sweeping dismissal of the Palestinian intifada as “terrorism” by Ariel Sharon, whose use of state violence to destroy homes and lives is surely extreme. The use of the term “terrorism” thus works to delegitimize certain forms of violence committed by non-state-centered political entities at the same time that it sanctions a violent response by established states. Obviously, this has been a tactic for a long time, as colonial states have dealt with the Palestinians and with the Irish, and it was as well a case made against the African National Congress. But the new form that this kind of argument is taking, and the naturalized status it assumes, will only intensify the enormously damaging consequences of the struggle for Palestinian self-determination. Israel takes advantage of this formulation by justifying state violence against the Palestinians in the name of an infinitely expansive conception of self-defense. So “terrorism” becomes the name to describe the violence waged by the illegitimate, whereas “legal war” becomes the prerogative of those who can assume international recognition as legitimate states. In the current war, US soldiers would be covered by the Geneva Conventions and US POWs would be guaranteed POW status, but those they fight, deemed illegitimate, would have no legal recourse to those same protections. (Indeed, the very fact that Bush subjected this policy to review appeared to stem from a fear that US soldiers might also be summarily deprived of the same protections on foreign soil.)

 Although the Geneva Conventions might be more openly interpreted if they were reconvened to consider these questions (and why shouldn’t they be?), they currently serve to reinforce the distinction between legitimate state violence and illegitimate violence waged by the stateless. One surely needs to feel no sympathy with Al Qaeda to worry about the long-term international consequences of this distinction. In turn, the distinction between state-sanctioned violence and illegitimate violence or “unlawful combat” becomes the basis for the distinction between state violence and terrorism or, in the case of states whose legitimacy is in question, state terrorism (as the Russians have tried to impute to Chechnya). In this regard, it could be said that the stateless are terrorized by the distinction between state violence and “terrorism.”

 The “terrorists” are considered to be outside the law, to sanction treatment that is outside the law because of the character of their violence. The fact that these prisoners are seen as pure vessels of violence, as Rumsfeld claimed, suggests that they do not become violent for the same kinds of reasons that other politicized beings do, that their turn to violence can make no sense historically, or cannot make sense in the way that conventional wars make sense, and that their violence is somehow groundless and infinite, if not innate or constitutive. If this is “terrorism” rather than violence, it is action that has no political goal, or cannot be understood politically. It emerges, as they say, from fanatics, extremists who do not espouse a point of view and do not have a part in the human community. But even as Rumsfeld characterizes the prisoners in Guantánamo as individuals who will kill again if they are not detained, imagining them as capable of an infinite violence, the US war has also established its own relation to infinity, since it is unclear how a generalized “war on terrorism”–with all the vagueness that implies–can ever properly end. That the violence of the prisoners is associated with Islamic extremism or terrorism suggests that these prisoners are already cast outside the bounds of civilization, and that the dehumanization that Orientalism already performs is heightened now to an extreme, so that the uniqueness of this kind of war makes the humane treatment of prisoners, as stipulated by international convention, exempt from the presumptions and protections of universality and civilization alike.

 The question of who will be treated humanely presupposes that we have first settled the question of who does and does not count as a human. And this is where the debate about Western civilization and Islam is not merely an academic debate, a misbegotten pursuit of Orientalism by the likes of Bernard Lewis and Samuel Huntington, although they do exemplify how notions of civilization produce the human differentially. To what extent does the nation-state operate as the basis for our notions of what is “human”? And does the Geneva Convention encode this expectation that humans, as we know and honor them under the law, belong primarily to nation-states? It is not just that some humans are treated as humans, and others are dehumanized; it is rather that dehumanization–treating some humans as outside the scope of the law–becomes one tactic by which a putatively distinct “Western” civilization seeks to define itself over and against a population understood as, by definition, illegitimate?