“The Tanner Lectures on Human Values”, delivered at Stanford University, October 10 and 16, 1979.

I

The title sounds pretentious, I know. But the reason for that is precisely its own excuse. Since the nineteenth century, Western thought has never stopped labouring at the task of criticising the role of reason – or the lack of reason – in political structures. It’s therefore perfectly unfitting to undertake such a vast project once again. However, so many previous attempts are a warrant that every new venture will be just about as successful as the former ones – and in any case, probably just as fortunate.

Under such a banner, mine is the embarrassment of one who has only sketches and uncompletable drafts to propose. Philosophy gave up trying to offset the impotence of scientific reason long ago; it no longer tries to complete its edifice.

One of the Enlightenment’s tasks was to multiply reason’s political powers. But the men of the nineteenth century soon started wondering whether reason weren’t getting too powerful in our societies. They began to worry about a relationship they confusedly suspected between a rationalisation-prone society and certain threats to the individual and his liberties, to the species and its survival.

In other words, since Kant, the role of philosophy has been to prevent reason going beyond the limits of what is given in experience; but from the same moment– that is, from the development of modern states and political management of society – the role of philosophy has also been to keep watch over the excessive powers of political rationality – which is rather a promising life expectancy.

Everybody is aware of such banal facts. But that they are banal does not mean they don’t exist. What we have to do with banal facts is to discover – or try to discover – which specific and perhaps original problems are connected with them.

The relationship between rationalisation and the excesses of political power is evident. And we should not need to wait for bureaucracy or concentration camps to recognize the existence of such relations. But the problem is: what to do with such an evident fact ?

Shall we ‘try’ reason? To my mind, nothing would be more sterile. First, because the field has nothing to do with guilt or innocence. Second, because it’s senseless to refer to ‘reason’ as the contrary entity to non-reason. Last, because such a trial would trap us into playing the arbitrary and boring part of either the rationalist or the irrationalist.

Shall we investigate this kind of rationalism which seems to be specific to our modern culture and which originates in Enlightenment? I think that that was the way of some of the members of the Frankfurter Schule. My purpose is not to begin a discussion of their works – they are most important and valuable. I would suggest another way of investigating the links between rationalisation and power:

It may be wise not to take as a whole the rationalisation of society or of culture, but to analyse this process in several fields, each of them grounded in a fundamental experience: madness, illness, death, crime, sexuality, etc.

I think that the word ‘rationalisation’ is a dangerous one. The main problem when people try to rationalise something is not to investigate whether or not they conform to principles of rationality, but to discover which kind of rationality they are using.

Even if the Enlightenment has been a very important phase in our history, and in the development of political technology, I think we have to refer to much more remote processes if we want to understand how we have been trapped in our own history.

This was my ‘ligne de conduite’ in my previous work: analyse the relations between experiences like madness, death, crime, sexuality, and several technologies of power. What I am working on now is the problem of individuality – or, I should say, selfidentity as referred to the problem of ‘individualising power’.

Everyone knows that in European societies political power has evolved towards more and more centralised forms. Historians have been studying this organisation of the state, with its administration and bureaucracy, for dozens of years.

I’d like to suggest in these two lectures the possibility of analysing another kind of transformation in such power relationships. This transformation is, perhaps, less celebrated. But I think that it is also important, mainly for modern societies. Apparently this evolution seems antagonistic to the evolution towards a centralised state. What I mean in fact is the development of power techniques oriented towards individuals and intended to rule them in a continuous and permanent way. If the state is the political form of a centralised and centralising power, let us call pastorship the individualising power.

My purpose this evening is to outline the origin of this pastoral modality of power, or at least some aspects of its ancient history. And in the next lecture, I’ll try to show how this pastorship happened to combine with its opposite, the state.

The idea of the deity, or the king, or the leader, as a shepherd followed by a flock of sheep wasn’t familiar to the Greeks and Romans. There were exceptions, I know – early ones in Homeric literature, later ones in certain texts of the Lower Empire. I’ll come back to them later. Roughly speaking, we can say that the metaphor of the flock didn’t occur in great Greek or Roman political literature.

This is not the case in ancient Oriental societies: Egypt, Assyria, Judaea. Pharaoh was an Egyptian shepherd. Indeed, he ritually received the herdsman’s crook on his coronation day; and the term ‘shepherd of men’ was one of the Babylonian monarch’s titles. But God was also a shepherd leading men to their grazing ground and ensuring them food. An Egyptian hymn invoked Ra this way: “O Ra that keepest watch when all men sleep, Thou who seekest what is good for thy cattle . . . .” The association between God and King is easily made, since both assume the same role: the flock they watch over is the same; the shepherd-king is entrusted with the great divine shepherd’s creatures. An Assyrian invocation to the king ran like this: “Illustrious companion of pastures, Thou who carest for thy land and feedest it, shepherd of all abundance.”

But, as we know, it was the Hebrews who developed and intensified the pastoral theme – with nevertheless a highly peculiar characteristic: God, and God only, is his people’s shepherd. With just one positive exception: David, as the founder of the monarchy, is the only one to be referred to as a shepherd. God gave him the task of assembling a flock.

There are negative exceptions, too: wicked kings are consistently compared to bad shepherds; they disperse the flock, let it die of thirst, shear it solely for profit’s sake. Jahweh is the one and only true shepherd. He guides his own people in person, aided only by his prophets. As the Psalms say: “Like a flock/hast Thou led Thy people, by Moses’ and by Aaron’s hand.” Of course I can treat neither the historical problems pertaining to the origin of this comparison nor its evolution throughout Jewish thought. I just want to show a few themes typical of pastoral power. I’d like to point out the contrast with Greek political thought, and to show how important these themes became in Christian thought and institutions later on.

The shepherd wields power over a flock rather than over a land. It’s probably much more complex than that, but, broadly speaking, the relation between the deity, the land, and men differs from that of the Greeks. Their gods owned the land, and this primary possession determined the relationship between men and gods. On the contrary, it’s the Shepherd-God’s relationship with his flock that is primary and fundamental here. God gives, or promises, his flock a land.

The shepherd gathers together, guides, and leads his flock. The idea that the political leader was to quiet any hostilities within the city and make unity reign over conflict is undoubtedly present in Greek thought. But what the shepherd gathers together is dispersed individuals. They gather together on hearing his voice: “I’ll whistle and will gather them together.” Conversely, the shepherd only has to disappear for the flock to be scattered. In other words, the shepherd’s immediate presence and direct action cause the flock to exist. Once the good Greek lawgiver, like Solon, has resolved any conflicts, what he leaves behind him is a strong city with laws enabling it to endure without him.

The shepherd’s role is to ensure the salvation of his flock. The Greeks said also that the deity saved the city; they never stopped declaring that the competent leader is a helmsman warding his ship away from the rocks. But the way the shepherd saves his flock is quite different. It’s not only a matter of saving them all, all together, when danger comes nigh. It’s a matter of constant, individualised, and final kindness. Constant kindness, for the shepherd ensures his flock’s food; every day he attends to their thirst and hunger. The Greek god was asked to provide a fruitful land and abundant crops. He wasn’t asked to foster a flock day by day. And individualised kindness, too, for the shepherd sees that all the sheep, each and every one of them, is fed and saved. Later Hebrew literature, especially, laid the emphasis on such individually kindly power: a rabbinical commentary on Exodus explains why Jahweh chose Moses to shepherd his people: he had left his flock to go and search for one lost sheep.

Last and not least, it’s final kindness. The shepherd has a target for his flock. It must either be led to good grazing ground or brought back to the fold.

Yet another difference lies in the idea that wielding power is a ‘duty’. The Greek leader had naturally to make decisions in the interest of all; he would have been a bad leader had he preferred his personal interest. But his duty was a glorious one: even if in war he had to give up his life, such a sacrifice was offset by something extremely precious: immortality. He never lost. By way of contrast, shepherdly kindness is much closer to ‘devotedness’. Everything the shepherd does is geared to the good of his flock. That’s his constant concern. When they sleep, he keeps watch. The theme of keeping watch is important. It brings out two aspects of the shepherd’s devotedness. First, he acts, he works, he puts himself out, for those he nourishes and who are asleep. Second, he watches over them. He pays attention to them all and scans each one of them. He’s got to know his flock as a whole, and in detail. Not only must he know where good pastures are, the seasons’ laws and the order of things; he must also know each one’s particular needs. Once again, a rabbinical commentary on Exodus describes Moses’ qualities as a shepherd this way: he would send each sheep in turn to graze – first, the youngest, for them to browse on the tenderest sward; then the older ones; and last the oldest, who were capable of browsing on the roughest grass. The shepherd’s power implies individual attention paid to each member of the flock.

These are just themes that Hebraic texts associate with the metaphors of the Shepherd-God and his flock of people. In no way do I claim that that is effectively how political power was wielded in Hebrew society before the fall of Jerusalem. I do not even claim that such a conception of political power is in any way coherent.

They’re just themes. Paradoxical, even contradictory, ones. Christianity was to give them considerable importance, both in the Middle Ages and in modern times. Among all the societies in history, ours – I mean, those that came into being at the end of Antiquity on the Western side of the European continent – have perhaps been the most aggressive and the most conquering; they have been capable of the most stupefying violence, against themselves as well as against others. They invented a great many different political forms. They profoundly altered their legal structures several times. It must be kept in mind that they alone evolved a strange technology of power treating the vast majority of men as a flock with a few as shepherds. They thus established between them a series of complex, continuous, and paradoxical relationships.

This is undoubtedly something singular in the course of history. Clearly, the development of ‘pastoral technology’ in the management of men profoundly disrupted the structures of ancient society.

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So as to better explain the importance of this disruption, I’d like to briefly return to what I was saying about the Greeks. I can see the objections liable to be made.

One is that the Homeric poems use the shepherd metaphor to refer to the kings. In the Iliad and the Odyssey, the expression ποιμήυ λαώυ crops up several times. It qualifies the leaders, highlighting the grandeur of their power. Moreover, it’s a ritual title, common in even late Indo-European literature. In Beowulf, the king is still regarded as a shepherd. But there is nothing really surprising in the fact that the same title, as in the Assyrian texts, is to be found in archaic epic poems.

The problem arises rather as to Greek thought: There is at least one category of texts where references to shepherd models are made: the Pythagorean ones. The metaphor of the herdsman appears in the Fragments of Archytas, quoted by Stobeus. The word υόμος (the law) is connected with the word νυομεύς (shepherd) : the shepherd shares out, the law apportions. Then Zeus is called Νόμιος and Νέμειος because he gives his sheep food. And, finally, the magistrate must be Φιλάυθρωπος, i.e., devoid of selfishness. He must be full of zeal and solicitude, like a shepherd.

Grube, the German editor of Archytas’ Fragments, says that this proves a Hebrew influence unique in Greek literature. Other commentators, such as Delatte, say that the comparison between gods, magistrates, and shepherds was common in Greece. It is therefore not to be dwelt upon.

I shall restrict myself to political literature. The results of the enquiry are clear: the political metaphor of the shepherd occurs neither in Isocrates, nor in Demosthenes, nor in Aristotle. This is rather surprising when one reflects that in his Areopagiticus, Isocrates insists on the magistrates’ duties; he stresses the need for them to be devoted and to show concern for young people. Yet not a word as to any shepherd.

By contrast, Plato often speaks of the shepherd-magistrate. He mentions the idea in Critias, The Republic, and Laws. He thrashes it out in The Statesman. In the former, the shepherd theme is rather subordinate. Sometimes, those happy days when mankind was governed directly by the gods and grazed on abundant pastures are evoked (Critias) , Sometimes, the magistrates’ necessary virtue – as contrasted with Thrasymachos’ vice, is what is insisted upon (The Republic). And sometimes, the problem is to define the subordinate magistrates’ role: indeed, they, just as the watchdogs, have to obey “those at the top of the scale” (Laws).

But in The Statesman pastoral power is the central problem and it is treated at length. Can the city’s decision-maker, can the commander, be defined as a sort of shepherd ?

Plato’s analysis is well known. To solve this question he uses the division method. A distinction is drawn between the man who conveys orders to inanimate things (e.g., the architect), and the man who gives orders to animals; between the man who gives orders to isolated animals (like a yoke of oxen) and he who gives orders to flocks; and he who gives orders to animal flocks, and he who commands human flocks. And there we have the political leader: a shepherd of men.

But this first division remains unsatisfactory. It has to be pushed further. The method opposing men to all the other animals isn’t a good one. And so the dialogue starts all over again. A whole series of distinctions is established: between wild animals and tame ones; those that live in water, and those that live on land; those with horns, and those without; between cleft- and plain-hoofed animals; between those capable and incapable of mutual reproduction. And the dialogue wanders astray with these never-ending subdivisions.

So, what do the initial development of the dialogue and its subsequent failure show? That the division method can prove nothing at all when it isn’t managed correctly. It also shows that the idea of analysing political power as the relationship between a shepherd and his animals was probably rather a controversial one at the time. Indeed, it’s the first assumption to cross the interlocutors’ minds when seeking to discover the essence of the politician. Was it a commonplace at the time? Or was Plato rather discussing one of the Pythagorean themes? The absence of the shepherd metaphor in other contemporary political texts seems to tip the scale towards the second hypothesis. But we can probably leave the discussion open.

My personal enquiry bears upon how Plato impugns the theme in the rest of the dialogue. He does so first by means of methodological arguments and then by means of the celebrated myth of the world revolving round its spindle.

The methodological arguments are extremely interesting. Whether the king is a sort of shepherd or not can be told, not by deciding which different species can form a flock, but by analysing what the shepherd does.

What is characteristic of his task? First, the shepherd is alone at the head of his flock. Second, his job is to supply his cattle with food; to care for them when they are sick; to play them music to get them together, and guide them; to arrange their intercourse with a view to the finest offspring. So we do find the typical shepherd-metaphor themes of Oriental texts.

And what’s the king’s task in regard to all this? Like the shepherd, he is alone at the head of the city. But, for the rest, who provides mankind with food? The king? No. The farmer, the baker do. Who looks after men when they are sick? The king? No. The physician. And who guides them with music? The gymnast – not the king. And so, many citizens could quite legitimately claim the title ‘shepherd of men’. Just as the human flock’s shepherd has many rivals, so has the politician. Consequently, if we want to find out what the politician really and essentially is, we must sift it out from ‘the surrounding flood’, thereby demonstrating in what ways he isn’t a shepherd.

Plato therefore resorts to the myth of the world revolving round its axis in two successive and contrary motions.

In a first phase, each animal species belonged to a flock led by a Genius-Shepherd. The human flock was led by the deity itself. It could lavishly avail itself of the fruits of the earth; it needed no abode; and after Death, men came back to life. A crucial sentence adds: “The deity being their shepherd, mankind needed no political constitution.”

In a second phase, the world turned in the opposite direction. The gods were no longer men’s shepherds; they had to look after themselves. For they had been given fire. What would the politician’s role then be? Would he become the shepherd in the gods’ stead? Not at all. His job was to weave a strong fabric for the city. Being a politician didn’t mean feeding, nursing, and breeding off spring, but binding: binding different virtues; binding contrary temperaments (either impetuous or moderate), using the ‘shuttle’ of popular opinion. The royal art of ruling consisted in gathering lives together “into a community based upon concord and friendship,’ and so he wove “the finest of fabrics.” The entire population, “slaves and free men alike, were mantled in its folds.”

The Statesman therefore seems to be classical antiquity’s most systematic reflexion on the theme of the pastorate which was later to become so important in the Christian West. That we are discussing it seems to prove that a perhaps initially Oriental theme was important enough in Plato’s day to deserve investigation, but we stress the fact that it was impugned.

Not impugned entirely, however. Plato did admit that the physician, the farmer, the gymnast, and the pedagogue acted as shepherds. But he refused to get them involved with the politician’s activity. He said so explicitly: how would the politician ever find the time to come and sit by each person, feed him, give him concerts, and care for him when sick ? Only a god in a Golden Age could ever act like that; or again, like a physician or pedagogue, be responsible for the lives and development of a few individuals. But, situated between the two – the gods and the swains – the men who hold political power are not to be shepherds. Their task doesn’t consist in fostering the life of a group of individuals. It consists in forming and assuring the city’s unity. In short, the political problem is that of the relation between the one and the many in the framework of the city and its citizens. The pastoral problem concerns the lives of individuals.

All this seems very remote, perhaps. The reason for my insisting on these ancient texts is that they show us how early this problem – or rather, this series of problems – arose. They span the entirety of Western history. They are still highly important for contemporary society. They deal with the relations between political power at work within the state as a legal framework of unity, and a power we can call ‘pastoral’, whose role is to constantly ensure, sustain, and improve the lives of each and every one.

The well-known ‘welfare state problem’ does not only bring the needs or the new governmental techniques of today’s world to light. It must be recognised for what it is: one of the extremely numerous reappearances of the tricky adjustment between political power wielded over legal subjects and pastoral power wielded over live individuals.

I have obviously no intention whatsoever of recounting the evolution of pastoral power throughout Christianity. The immense problems this would raise can easily be imagined: from doctrinal problems, such as Christ’s denomination as ‘the good shepherd’, right up to institutional ones, such as parochial organisation, or the way pastoral responsibilities were shared between priests and bishops.

All I want to do is bring to light two or three aspects I regard as important for the evolution of pastorship, i.e., the technology of power.

First of all, let us examine the theoretical elaboration of the theme in ancient Christian literature: Chrysostom, Cyprian, Ambrose, Jerome, and, for monastic life, Cassian or Benedict. The Hebrew themes are considerably altered in at least four ways:

First, with regard to responsibility. We saw that the shepherd was to assume responsibility for the destiny of the whole flock and of each and every sheep. In the Christian conception, the shepherd must render an account – not only of each sheep, but of all their actions, all the good or evil they are liable to do, all that happens to them.

Moreover, between each sheep and its shepherd Christianity conceives a complex exchange and circulation of sins and merits. The sheep’s sin is also imputable to the shepherd. He’ll have to render an account of it at the Last Judgement. Conversely, by helping his flock to find salvation, the shepherd will also find his own. But by saving his sheep, he lays himself open to getting lost; so if he wants to save himself, he must needs run the risk of losing himself for others. If he does get lost, it is the flock that will incur the greatest danger. But let’s leave all these paradoxes aside. My aim was just to underline the force and complexity of the moral ties binding the shepherd to each member of his flock. And what I especially wanted to underline was that such ties not only concerned individuals’ lives, but the details of their actions as well.

The second important alteration concerns the problem of obedience. In the Hebrew conception, God being a shepherd, the flock following him complies to his will, to his law. Christianity, on the other hand, conceived the shepherd-sheep relationship as one of individual and complete dependence. This is undoubtedly one of the points at which Christian pastorship radically diverged from Greek thought. If a Greek had to obey, he did so because it was the law, or the will of the city. If he did happen to follow the will of someone in particular (a physician, an orator, a pedagogue), then that person had rationally persuaded him to do so. And it had to be for a strictly determined aim: to be cured, to acquire a skill, to make the best choice.

In Christianity, the tie with the shepherd is an individual one. It is personal submission to him. His will is done, not because it is consistent with the law, and not just as far as it is consistent with it, but, principally, because it is his will. In Cassian’s Coenobiticul Institutions, there are many edifying anecdotes in which the monk finds salvation by carrying out the absurdest of his superior’s orders. Obedience is a virtue. This means that it is not, as for the Greeks, a provisional means to an end, but rather an end in itself. It is a permanent state; the sheep must permanently submit to their pastors: subditi. As Saint Benedict says, monks do not live according to their own free will; their wish is to be under the abbot’s command : ambulantes alieno judicio et imperio. Greek Christianity named this state of obedience άπάθεια.. The evolution of the word’s meaning is significant. In Greek philosophy, άπάθεια denotes the control that the individual, thanks to the exercise of reason, can exert over his passions. In Christian thought, πάθος is willpower exerted over oneself, for oneself. Απάθεια delivers us from such wilfulness.

Christian pastorship implies a peculiar type of knowledge between the pastor and each of his sheep.

This knowledge is particular. It individualizes. It isn’t enough to know the state of the flock. That of each sheep must also be known. The theme existed long before there was Christian pastorship, but it was considerably amplified in three different ways: the shepherd must be informed as to the material needs of each member of the flock and provide for them when necessary. He must know what is going on, what each of them does – his public sins. Last and not least, he must know what goes on in the soul of each one, that is, his secret sins, his progress on the road to sainthood.

In order to ensure this individual knowledge, Christianity appropriated two essential instruments at work in the Hellenistic world: self-examination and the guidance of conscience. It took them over, but not without altering them considerably.

It is well known that self-examination was widespread among the Pythagoreans, the Stoics, and the Epicureans as a means of daily taking stock of the good or evil performed in regard to one’s duties. One’s progress on the way to perfection, i.e., self-mastery and the domination of one’s passions, could thus be measured. The guidance of conscience was also predominant in certain cultured circles, but as advice given – and sometimes paid for – in particularly difficult circumstances: in mourning, or when one was suffering a setback.

Christian pastorship closely associated these two practices. On one hand, conscience-guiding constituted a constant bind : the sheep didn’t let itself be led only to come through any rough passage victoriously, it let itself be led every second. Being guided was a state and you were fatally lost if you tried to escape it. The ever-quoted phrase runs like this: he who suffers not guidance withers away like a dead leaf. As for self-examination, its aim was not to close self-awareness in upon itself, but to enable it to open up entirely to its director – to unveil to him the depths of the soul.

There are a great many first-century ascetic and monastic texts concerning the link between guidance and self-examination that show how crucial these techniques were for Christianity and how complex they had already become. What I would like to emphasise is that they delineate the emergence of a very strange phenomenon in Greco-Roman civilisation, that is, the organisation of a link between total obedience, knowledge of oneself, and confession to someone else.

There is another transformation – maybe the most important. All those Christian techniques of examination, confession, guidance, obedience, have an aim: to get individuals to work at their own ‘mortification’ in this world. Mortification is not death, of course, but it is a renunciation of this world and of oneself: a kind of everyday death. A death which is supposed to provide life in another world. This is not the first time we see the shepherd theme associated with death; but here it is other than in the Greek idea of political power. It is not a sacrifice for the city; Christian mortification is a kind of relation from oneself to oneself. It is a part, a constitutive part of the Christian self-identity.

We can say that Christian pastorship has introduced a game that neither the Greeks nor the Hebrews imagined. A strange game whose elements are life, death, truth, obedience, individuals, self-identity; a game which seems to have nothing to do with the game of the city surviving through the sacrifice of the citizens. Our societies proved to be really demonic since they happened to combine those two games – the city / citizen game and the shepherd / flock game – in what we call the modern states.

As you may notice, what I have been trying to do this evening is not to solve a problem but to suggest a way to approach a problem. This problem is similar to those I have been working on since my first book about insanity and mental illness. As I told you previously, this problem deals with the relations between experiences (like madness, illness, transgression of laws, sexuality, self-identity) knowledge (like psychiatry, medicine, criminology, sexology, psychology), and power (such as the power which is wielded in psychiatric and penal institutions, and in all other institutions which deal with individual control).

Our civilisation has developed the most complex system of knowledge, the most sophisticated structures of power: what has this kind of knowledge, this type of power made of us? In what way are those fundamental experiences of madness, suffering, death, crime, desire, individuality connected, even if we are not aware of it, with knowledge and power? I am sure I’ll never get the answer; but that does not mean that we don’t have to ask the question.

II

I have tried to show how primitive Christianity shaped the idea of a pastoral influence continuously exerting itself on individuals and through the demonstration of their particular truth. And I have tried to show how this idea of pastoral power was foreign to Greek thought despite a certain number of borrowings such as practical self-examination and the guidance of conscience.

I would like at this time, leaping across many centuries, to describe another episode which has been in itself particularly important in the history of this government of individuals by their own verity.

This instance concerns the formation of the state in the modern sense of the word. If I make this historical connection it is obviously not in order to suggest that the aspect of pastoral power disappeared during the ten great centuries of Christian Europe, Catholic and Roman, but it seems to me that this period, contrary to what one might expect, has not been that of the triumphant pastorate. And that is true for several reasons: some are of an economic nature – the pastorate of souls is an especially urban experience, difficult to reconcile with the poor and extensive rural economy at the beginning of the Middle Ages. The other reasons are of a cultural nature: the pastorate is a complicated technique which demands a certain level of culture, not only on the part of the pastor but also among his flock. Other reasons relate to the sociopolitical structure. Feudality developed between individuals a tissue of personal bonds of an altogether different type than the pastorate.

I do not wish to say that the idea of a pastoral government of men disappeared entirely in the medieval church. It has, indeed, remained and one can even say that it has shown great vitality. Two series of facts tend to prove this. First, the reforms which had been made in the Church itself, especially in the monastic orders – the different reforms operating successively inside existing monasteries – had the goal of restoring the rigor of pastoral order among the monks themselves. As for the newly created orders – Dominican and Franciscan – essentially they proposed to perform pastoral work among the faithful. The Church tried ceaselessly during successive crises to regain its pastoral functions. But there is more. In the population itself one sees all during the Middle Ages the development of a long series of struggles whose object was pastoral power. Critics of the Church which fails in its obligations reject its hierarchical structure, look for the more or less spontaneous forms of community in which the flock could find the shepherd it needed. This search for pastoral expression took on numerous aspects, at times extremely violent struggles as was the case for the Vaudois, sometimes peaceful quests as among the Freres de la Vie community. Sometimes it stirred very extensive movements such as the Hussites, sometimes it fermented limited groups like the Amis de Dieu de l’Oberland. It happened that these movements were close to heresy, as among the Beghards, at times stirring orthodox movements which dwelt within the bosom of the Church (like that of the Italian Oratorians in the fifteenth century).

I raise all of this in a very allusive manner in order to emphasise that if the pastorate was not instituted as an effective, practical government of men during the Middle Ages, it has been a permanent concern and a stake in constant struggles. There was across the entire period of the Middle Ages a yearning to arrange pastoral relations among men and this aspiration affected both the mystical tide and the great millenarian dreams.

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Of course, I don’t intend to treat here the problem of how states are formed. Nor do I intend to go into the different economic, social, and political processes from which they stem. Neither do I want to analyse the different institutions or mechanisms with which states equipped themselves in order to ensure their survival. I’d just like to give some fragmentary indications as to something midway between the state as a type of political organisation and its mechanisms, viz., the type of rationality implemented in the exercise of state power.

I mentioned this in my first lecture. Rather than wonder whether aberrant state power is due to excessive rationalism or irrationalism, I think it would be more appropriate to pin down the specific type of political rationality the state produced.

After all, at least in this respect, political practices resemble scientific ones: it’s not ‘reason in general’ that is implemented, but always a very specific type of rationality. The striking thing is that the rationality of state power was reflective and perfectly aware of its specificity. It was not tucked away in spontaneous, blind practices. It was not brought to light by some retrospective analysis. It was formulated especially in two sets of doctrine: the reason of state and the theory of police. These two phrases soon acquired narrow and pejorative meanings, I know. But for the 150 or 200 years during which modern states were formed, their meaning was much broader than now.

The doctrine of reason of state attempted to define how the principles and methods of state government differed, say, from the way God governed the world, the father his family, or a superior his community.

The doctrine of the police defines the nature of the objects of the state’s rational activity; it defines the nature of the aims it pursues, the general form of the instruments involved.

So, what I’d like to speak about today is the system of rationality. But first, there are two preliminaries:

(1) Meinecke having published a most important book on reason of state, I’ll speak mainly of the policing theory.

(2) Germany and Italy underwent the greatest difficulties in getting established as states, and they produced the greatest number of reflexions on reason of state and the police. I’ll often refer to the Italian and German texts.

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Let’s begin with reason of state. Here are a few definitions:

BOTERO: “A perfect knowledge of the means through which states form, strengthen themselves, endure, and grow.”

PALAZZO (Discourse on Government and True Reason of State, 1606) : “A rule or art enabling us to discover how to establish peace and order within the Republic.”

CHEMNITZ (De Ratione Status, 1647) : “A certain political consideration required for all public matters, councils, and projects, whose only aim is the state’s preservation, expansion, and felicity; to which end, the easiest and promptest means are to be employed.”

Let me consider certain features these definitions have in common.

Reason of state is regarded as an ‘art’, that is, a technique conforming to certain rules. These rules do not simply pertain to customs or traditions, but to knowledge – rational knowledge. Nowadays, the expression reason of state evokes ‘arbitrariness’ or ‘violence’. But at the time, what people had in mind was a rationality specific to the art of governing states.

From where does this specific art of government draw its rationale? The answer to this question provokes the scandal of nascent political thought. And yet it’s very simple: the art of governing is rational, if reflexion causes it to observe the nature of what is governed – here, the state.

Now, to state such a platitude is to break with a simultaneously Christian and judiciary tradition, a tradition which claimed that government was essentially just. It respected a whole system of laws: human laws; the law of nature; divine law.

There is a quite significant text by St. Thomas on these points. He recalls that “art, in its field, must imitate what nature carries out in its own”; it is only reasonable under that condition. The king’s government of his kingdom must imitate God’s government of nature; or again, the soul’s government of the body. The king must found cities just as God created the world; just as the soul gives form to the body. The king must also lead men towards their finality, just as God does for natural beings, or as the soul does, when directing the body. And what is man’s finality? What’s good for the body? No; he’d need only a physician, not a king. Wealth? No; a steward would suffice. Truth? Not even that; for only a teacher would be needed. Man needs someone capable of opening up the way to heavenly bliss through his conformity, here on earth, to what is honesturn.

As we can see, the model for the art of government is that of God imposing his laws upon his creatures. St. Thomas’s model for rational government is not a political one, whereas what the sixteenth and seventeenth centuries seek under the denomination ‘reason of state’ are principles capable of guiding an actual government. They aren’t concerned with nature and its laws in general. They’re concerned with what the state is; what its exigencies are.

And so we can understand the religious scandal aroused by such a type of research. It explains why reason of state was assimilated to atheism. In France, in particular, the expression generated in a political context was commonly associated with ‘atheist’.

Reason of state is also opposed to another tradition. In The Prince, Machiavelli’s problem is to decide how a province or territory acquired through inheritance or by conquest can be held against its internal or external rivals. Machiavelli’s entire analysis is aimed at defining what keeps up or reinforces the link between prince and state, whereas the problem posed by reason of state is that of the very existence and nature of the state itself. This is why the theoreticians of reason of state tried to stay aloof from Machiavelli; he had a bad reputation and they couldn’t recognize their own problem in his. Conversely, those opposed to reason of state tried to impair this new art of governing, denouncing it as Machiavelli’s legacy. However, despite these confused quarrels a century after The Prince had been written, reason of state marks the emergence of an extremely – albeit only partly – different type of rationality from Machiavelli’s.

The aim of such an art of governing is precisely not to reinforce the power a prince can wield over his domain. Its aim is to reinforce the state itself. This is one of the most characteristic features of all the definitions that the sixteenth and seventeenth centuries put forward. Rational government is this, so to speak: given the nature of the state, it can hold down its enemies for an indeterminate length of time. It can only do so if it increases its own strength. And its enemies do likewise. The state whose only concern would be to hold out would most certainly come to disaster. This idea is a very important one. It is bound up with a new historical outlook. Indeed, it implies that states are realities which must needs hold out for an indefinite length of historical time – and in a disputed geographical area.

Finally, we can see that reason of state, understood as rational government able to increase the state’s strength in accordance with itself presupposes the constitution of a certain type of knowledge. Government is only possible if the strength of the state is known; it can thus be sustained. The state’s capacity, and the means to enlarge it, must be known. The strength and capacities of the other states must also be known. Indeed, the governed state must hold out against the others. Government therefore entails more than just implementing general principles of reason, wisdom, and prudence. Knowledge is necessary; concrete, precise, and measured knowledge as to the state’s strength. The art of governing, characteristic of reason of state, is intimately bound up with the development of what was then called either political statistics, or arithmetic; that is, the knowledge of different states’ respective forces. Such knowledge was indispensable for correct government. Briefly speaking, then: reason of state is not an art of government according to divine, natural, or human laws. It doesn’t have to respect the general order of the world. It’s government in accordance with the state’s strength. It’s government whose aim is to increase this strength within an extensive and competitive framework.

********************

So what the seventeenth- and eighteenth-century authors understand by ‘the police’ is very different from what we put under the term. It would be worth studying why these authors are mostly Italians and Germans, but whatever! What they understand by ‘police’ isn’t an institution or mechanism functioning within the state, but a governmental technology peculiar to the state; domains, techniques, targets where the state intervenes.

To be clear and simple, I will exemplify what I’m saying with a text which is both utopian and a project. It’s one of the first utopia-programmes for a policed state. Turquet de Mayenne drew it up and presented it in 1611 to the Dutch States General. In his book Science in the Government of Louis XIV, J. King draws attention to the importance of this strange work. Its title is Aristo- Democrutic Monarchy; that’s enough to show what is important in the author’s eyes: not so much choosing between these different types of constitution as their mixture in view to a vital end, viz., the state. Turquet also calls it the City, the Republic, or yet again, the Police.

Here is the organisation Turquet proposes. Four grand officials rank beside the king. One is in charge of Justice; another, of the Army; the third, of the Exchecquer, i.e., the king’s taxes and revenues; the fourth is in charge of the police. It seems that this officer’s role was to have been mainly a moral one. According to Turquet, he was to foster among the people “modesty, charity, loyalty, industriousness, friendly cooperation, honesty.” We recognize the traditional idea that the subject’s virtue ensures the kingdom’s good management. But, when we come down to the details, the outlook is somewhat different.

Turquet suggests that in each province, there should be boards keeping law and order. There should be two that see to people; the other two see to things. The first board, the one pertaining to people, was to see to the positive, active, productive aspects of life. In other words, it was concerned with education; determining each one’s tastes and aptitudes; the choosing of occupations – useful ones: each person over the age of twenty-five had to be enrolled on a register noting his occupation. Those not usefully employed were regarded as the dregs of society.

The second board was to see to the negative aspects of life: the poor (widows, orphans, the aged) requiring help; the unemployed; those whose activities required financial aid (no interest was to be charged) ; public health: diseases, epidemics; and accidents such as fire and flood.

One of the boards concerned with things was to specialise in commodities and manufactured goods. It was to indicate what was to be produced, and how; it was also to control markets and trading. The fourth board would see to the ‘demesne’, i.e., the territory, space: private property, legacies, donations, sales were to be controlled; manorial rights were to be reformed; roads, rivers, public buildings, and forests would also be seen to.

In many features, the text is akin to the political utopias which were so numerous at the time. But it is also contemporary with the great theoretical discussions on reason of state and the administrative organisation of monarchies. It is highly representative of what the epoch considered a traditionally governed state’s tasks to be.

What does this text demonstrate?

The ‘police’ appears as an administration heading the state, together with the judiciary, the army, and the exchecquer. True. Yet in fact, it embraces everything else. Turquet says so: “It branches out into all of the people’s conditions, everything they do or undertake. Its field comprises justice, finance, and the army.”

The police includes everything. But from an extremely particular point of view. Men and things are envisioned as to their relationships: men’s coexistence on a territory; their relationships as to property; what they produce; what is exchanged on the market. It also considers how they live, the diseases and accidents which can befall them. What the police sees to is a live, active, productive man. Turquet employs a remarkable expression: “The police’s true object is man.”

Such intervention in men’s activities could well be qualified as totalitarian. What are the aims pursued? They fall into two categories. First, the police has to do with everything providing the city with adornment, form, and splendour. Splendour denotes not only the beauty of a state ordered to perfection; but also its strength, its vigour. The police therefore ensures and highlights the state’s vigour. Second, the police’s other purpose is to foster working and trading relations between men, as well as aid and mutual help. There again, the word Turquet uses is important: the police must ensure ‘communication’ among men, in the broad sense of the word. Otherwise, men wouldn’t be able to live; or their lives would be precarious, poverty-stricken, and perpetually threatened. And here, we can make out what is, I think, an important idea. As a form of rational intervention wielding political power over men, the role of the police is to supply them with a little extra life; and by so doing, supply the state with a little extra strength. This is done by controlling ‘communication’, i.e., the common activities of individuals (work, production, exchange, accommodation). You’ll object: but that’s only the utopia of some obscure author. You can hardly deduce any significant consequences from it! But I say: Turquet’s book is but one example of a huge literature circulating in most European countries of the day. The fact that it is over-simple and yet very detailed brings out all the better the characteristics that could be recognized elsewhere. Above all, I’d say that such ideas were not stillborn. They spread all through the seventeenth and eighteenth centuries, either as applied policies (such as cameralism or mercantilism), or as subjects to be taught (the German Polizeiwissenschaft; don’t let’s forget that this was the title under which the science of administration was taught in Germany).

These are the two perspectives that I’d like, not to study, but at least to suggest. First I’ll refer to a French administrative compendium, then to a German textbook.

1. Every historian knows Delamare’s Compendium. At the beginning of the eighteenth century, this administrator undertook the compilation of the whole kingdom’s police regulations. It’s an infinite source of highly valuable information. The general conception of the police that such a quantity of rules and regulations could convey to an administrator like Delamare is what I’d like to emphasise.

Delamare says that the police must see to eleven things within the state: (1) religion; (2) morals; (3) health; ( 4 ) supplies; ( 5 ) roads, highways, town buildings; (6) public safety; (7) the liberal arts (roughly speaking, arts and science); (8) trade; (9) factories; (10) manservants and labourers; (11) the poor.

The same classification features in every treatise concerning the police. As in Turquet’s utopia programme, apart from the army, justice properly speaking, and direct taxes, the police apparently sees to everything. The same thing can be said differently: Royal power had asserted itself against feudalism thanks to the support of an armed force and by developing a judicial system and establishing a tax system. These were the ways in which royal power was traditionally wielded. Now, ‘the police’ is the term covering the whole new field in which centralised political and administrative power can intervene.

Now, what is the logic behind intervention in cultural rites, small-scale production techniques, intellectual life, and the road network ?

Delamare’s answer seems a bit hesitant. Now he says, “The police sees to everything pertaining to men’s happiness”; now he says, “The police sees to everything regulating ‘society’ (social relations) carried on between men.” Now again, he says that the police sees to living. This is the definition I will dwell upon. It’s the most original and it clarifies the other two; and Delamare himself dwells upon it. He makes the following remarks as to the police’s eleven objects. The police deals with religion, not, of course, from the point of view of dogmatic truth, but from that of the moral quality of life. In seeing to health and supplies, it deals with the preservation of life; concerning trade, factories, workers, the poor and public order, it deals with the conveniences of life. In seeing to the theatre, literature, entertainment, its object is life’s pleasures. In short, life is the object of the police: the indispensable, the useful, and the superfluous. That people survive, live, and even do better than just that, is what the police has to ensure.

And so we link up with the other definitions Delamare proposes: “The sole purpose of the police is to lead man to the utmost happiness to be enjoyed in this life.” Or again, the police cares for the good of the soul (thanks to religion and morality), the good of the body (food, health, clothing, housing), wealth (industry, trade, labour). Or again, the police sees to the benefits that can be derived only from living in society.

2. Now let us have a look at the German textbooks. They were used to teach the science of administration somewhat later on. It was taught in various universities, especially in Gottingen, and was extremely important for continental Europe. Here it was that the Prussian, Austrian, and Russian civil servants – those who were to carry out Joseph 11’s and the Great Catherine’s reforms – were trained. Certain Frenchmen, especially in Napoleon’s entourage, knew the teachings of Polizeiwissenschaft very well.

What was to be found in these textbooks ? Huhenthal’s Liber de Politia featured the following items : the number of citizens; religion and morals; health; food; the safety of persons and of goods (particularly in reference to fires and floods) ; the administration of justice; citizens’ conveniences and pleasures (how to obtain them, how to restrict them). Then comes a series of chapters about rivers, forests, mines, brine pits, housing, and finally, several chapters on how to acquire goods either through farming, industry, or trade.

In his Precis for the Police, Willebrand speaks successively of morals, trades and crafts, health, safety, and last of all, of town building and planning. Considering the subjects at least, there isn’t a great deal of difference from Delamare’s.

But the most important of these texts is Von Justi’s Elements of Police. The police’s specific purpose is still defined as live individuals living in society. Nevertheless, the way Von Justi organises his book is somewhat different. He studies first what he calls the ‘state’s landed property’, i.e.,its territory. He considers it in two different aspects: how it is inhabited (town vs. country), and then, who inhabit these territories (the number of people, their growth, health, mortality, immigration). Von Justi then analyses the ‘goods and chattels’, i.e., the commodities, manufactured goods, and their circulation which involve problems pertaining to cost, credit, and currency. Finally, the last part is devoted to the conduct of individuals: their morals, their occupational capabilities, their honesty, and how they respect the Law.

In my opinion, Von Justi’s work is a much more advanced demonstration of how the police problem was evolved than Delamare’s ‘Introduction’ to his compendium of statutes. There are four reasons for this.

First, Von Justi defines much more clearly what the central paradox of police is. The police, he says, is what enables the state to increase its power and exert its strength to the full. On the other hand, the police has to keep. the citizens happy – happiness being understood as survival, life, and improved living. He perfectly defines what I feel to be the aim of the modern art of government, or state rationality: viz., to develop those elements constitutive of individuals’ lives in such a way that their development also fosters that of the strength of the state.

Von Justi then draws a distinction between this task, which he calls Polizei, as do his contemporaries, and Politik, Die Politik. Die Politik is basically a negative task. It consists in the state’s fighting against its internal and external enemies. Polizei, however, is a positive task: it has to foster both citizens’ lives and the state’s strength.

And here is the important point: Von Justi insists much more than does Delamare on a notion which became increasingly important during the eighteenth century – population. Population was understood as a group of live individuals. Their characteristics were those of all the individuals belonging to the same species, living side by side. (They thus presented mortality and fecundity rates; they were subject to epidemics, overpopulation; they presented a certain type of territorial distribution.) True, Delamare did use the term ‘life’ to characterise the concern of the police, but the emphasis he gave it wasn’t very pronounced. Proceeding through the eighteenth century, and especially in Germany, we see that what is defined as the object of the police is population, i.e., a group of beings living in a given area.

And last, one only has to read Von Justi to see that it is not only a utopia, as with Turquet, nor a compendium of systematically filed regulations. Von Justi claims to draw up a Polizeiwissenschuft. His book isn’t simply a list of prescriptions. It’s also a grid through which the state, i.e., territory, resources, population, towns, etc., can be observed. Von Justi combines ‘statistics’ (the description of states) with the art of government. Polizeiwissenschuft is at once an art of government and a method for the analysis of a population living on a territory.

Such historical considerations must appear to be very remote; they must seem useless in regard to present-day concerns. I wouldn’t go as far as Hermann Hesse, who says that only the “constant reference to history, the past, and antiquity” is fecund. But experience has taught me that the history of various forms of rationality is sometimes more effective in unsettling our certitudes and dogmatism than is abstract criticism. For centuries, religion couldn’t bear having its history told. Today, our schools of rationality balk at having their history written, which is no doubt significant.

What I’ve wanted to show is a direction for research. These are only the rudiments of something I’ve been working at for the last two years. It’s the historical analysis of what we could call, using an obsolete term, the art of government.

This study rests upon several basic assumptions. I’d sum them up like this:

Power is not a substance. Neither is it a mysterious property whose origin must be delved into. Power is only a certain type of relation between individuals. Such relations are specific, that is, they have nothing to do with exchange, production, communication, even though they combine with them. The characteristic feature of power is that some men can more or less entirely determine other men’s conduct – but never exhaustively or coercively. A man who is chained up and beaten is subject to force being exerted over him. Not power. But if he can be induced to speak, when his ultimate recourse could have been to hold his tongue, preferring death, then he has been caused to behave in a certain way. His freedom has been subjected to power. He has been submitted to government. If an individual can remain free, however little his freedom may be, power can subject him to government. There is no power without potential refusal or revolt.

As for all relations among men, many factors determine power. Yet rationalisation is also constantly working away at it. There are specific forms to such rationalisation. It differs from the rationalisation peculiar to economic processes, or to production and communication techniques; it differs from that of scientific discourse. The government of men by men -whether they form small or large groups, whether it is power exerted by men over women, or by adults over children, or by one class over another, or by a bureaucracy over a population – involves a certain type of rationality. It doesn’t involve instrumental violence.

Consequently, those who resist or rebel against a form of power cannot merely be content to denounce violence or criticise an institution. Nor is it enough to cast the blame on reason in general. What has to be questioned is the form of rationality at stake. The criticism of power wielded over the mentally sick or mad cannot be restricted to psychiatric institutions; nor can those questioning the power to punish be content with denouncing prisons as total institutions. The question is: how are such relations of power rationalized? Asking it is the only way to avoid other institutions, with the same objectives and the same effects, from taking their stead.

For several centuries, the state has been one of the most remarkable, one of the most redoubtable, forms of human government. Very significantly, political criticism has reproached the state with being simultaneously a factor for individualisation and a totalitarian principle, Just to look at nascent state rationality, just to see what its first policing project was, makes it clear that, right from the start, the state is both individualising and totalitarian. Opposing the individual and his interests to it is just as hazardous as opposing it with the community and its requirements. Political rationality has grown and imposed itself all throughout the history of Western societies. It first took its stand on the idea of pastoral power, then on that of reason of state. Its inevitable effects are both individualisation and totalisation. Liberation can only come from attacking, not just one of these two effects, but political rationality’s very roots.

 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.