States of Exception

This book addresses the relevance of the state of exception for the analysis of
law, while reflecting on the deeper symbolic and jurisprudential significance of
the coalescence between law and force.
The concept of the state of exception has become a central topos in poli-
tical and legal philosophy as well as in critical theory. The theoretical appa-
ratus of the state of exception sharply captures the uneasy relationship
between law, life and politics in the contemporary global setting, while also
challenging the comforting narratives that uncritically connect democracy
with the tradition of the rule of law. Drawing on critical legal theory, con-
tinental jurisprudence, political philosophy and history, this book explores the
genealogy of the concept of the state of exception and reflects on its legal
embodiment in past and present contexts – including Weimar and Nazi Ger-
many, contemporary Europe and Turkey. In doing so, it explores the dis-
ruptive force of the exception for legal and political thought, as it recuperates
its contemporary critical potential.
The book will be of interest to students and scholars in the field of jur-
isprudence, philosophy and critical legal theory.

Dr Cosmin Cercel is Associate Professor in Law at the University of Not-

tingham. He is the author of Towards a Jurisprudence of State Communism:
Law and the Failure of Revolution (Routledge: 2017).

Dr Gian Giacomo Fusco is Lecturer in Law at the University of Kent and

associate professor at Uczelnia Łazarskiego.

Dr Simon Lavis is Lecturer in Law at the Open University.

 Part of the

LAW AND POLITICS: CONTINENTAL PERSPECTIVES

series

series editors

Mariano Croce, Sapienza University of Rome, Italy

Marco Goldoni, University of Glasgow, UK

for information about the series and details of previous and forthcoming
titles, see https://www.routledge.com/law/series/LPCP
States of Exception

Law, History, Theory

Edited by
Cosmin Cercel, Gian Giacomo Fusco
and Simon Lavis
First published 2021
by Routledge
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Contents

List of contributors vii

Introduction: Untimely considerations on the state of exception 1

GIAN GIACOMO FUSCO, COSMIN CERCEL AND SIMON LAVIS

PART 1
Law, theory and the logic of the exception 13
1 Exception, fiction, performativity 15
GIAN GIACOMO FUSCO

2 ‘Through a glass, darkly’: Law, history and the frontispiece of the

exception 34
COSMIN CERCEL

3 The other side of the exception: Sovereignty, modernity and

international law 54
PRZEMYSŁAW TACIK

4 Minor law: Notes towards a revolutionary jurisprudence 73

TORMOD OTTER JOHANSEN

5 The exception of the norm in the Third Reich: (Re)reading the

Nazi constitutional state of exception 92
SIMON LAVIS
vi Contents

PART 2
Histories of exception 117
6 ‘Norm’ and ‘exception’: From the Weimar Republic to the Nazi
state form 119
DIMITRIOS KIVOTIDIS

7 ‘Our Fatherland has found itself on the verge of an abyss’:

Poland’s 1981 martial law, or the unexpected appearance of the
state of exception under actually existing socialism 140
RAFAŁ MAŃKO

8 A state in anomie: An analysis of modern Turkey’s states of

exception 167
CEYLAN BEGÜM YILDIZ

9 Beyond ‘the most serious suspension of rights’ of Genoa:

Violence, anomie and force (of law) 184
SARA RAIMONDI

Afterword: Emergencies, exceptions, legalities 203

DAVID FRASER

Index 212
Contributors

Cosmin Sebastian Cercel is Associate Professor in Law at the University of

Nottingham. His research focuses on genealogies of law and politics with
specific reference to twentieth-century continental legal history. He is the
author of Towards a Jurisprudence of State-Communism: Law and the
Failure of Revolution (London: Routledge, 2017), a monograph analyzing
the jurisprudential aspects of state communism. Recent publications
include “The Law of Blood: Totalitarianism, Criminal Law and the Body
Politic of World War Two Romania” in Stephen Skinner (ed.), Ideology
and Criminal Law: Fascist, National Socialist and Authoritarian Regimes
(Oxford: Hart, 2019), 345-68. ‘Law’s Disappearance: the State of Excep-
tion and the Destruction of Experience’, in Fabien Girard and Simone
Glanert (eds), Law’s Hermeneutics: Other Investigations (London: Routle-
dge, 2017). He has co-edited with Rafał Mańko and Adam Sulikowski,
Law and Critique in Central Europe (Oxford: Counterpress, 2016).
Gian Giacomo Fusco is a Lecturer in Law at Kent Law School (University of
Kent) and associate professor in Law at Uczelnia Łazarskiego (Warsaw). He
has obtained his doctoral degree in Law at the Univesity of Kent. His
research interests include jurisprudence, critical theory, history of ideas and
urban studies. He is currently working on a book on the notion of ‘form of
life’ in Giorgio Agamben.
Tormod Otter Johansen (LLD, LLM, MA) is a researcher at the University of
Gothenburg. His research interests are in public law, especially the rela-
tionship between constitutional issues and administrative issues, legal
theory, both in the public law field and in general legal philosophy. He has
published in these fields and in the field of procedural law. Together with
three other scholars in law and theology in Gothenburg and Lund he is
currently working on an interdisciplinary project – ‘End of law’, for the
period 2020–2024. The group is led by Mårten Björk, Lund University.
Dimitrios Kivotidis is a Lecturer in Law at the University of East London. His
research interests revolve around questions of sovereignty, the state of
viii List of contributors

exception, democracy and the relation between constitutional processes

and crisis, with a specific emphasis on the relevance of Marxist philosophy
in approaching these topics.
Simon Lavis is a Lecturer in Law at the Open University. His research focuses on
the nexus between law, history and theory in relation to Nazi Germany;
including the history and theory of Nazi law, the historiographical and jur-
isprudential representation of the Third Reich, and the role of law in the
transition to authoritarianism. His recent publications include ‘Nazi Law as
Non-Law in Academic Discourse’ in Stephen Skinner (ed.), Ideology and
Criminal Law: Fascist, National Socialist and Authoritarian Regimes (Oxford:
Hart, 2019), 59-76; and ‘The Distorted Jurisprudential Discourse of Nazi
Law: Uncovering the “Rupture Thesis” in the Anglo-American Legal Acad-
emy’, (2018) 31(4) International Journal for the Semiotics of Law 745–770.
Rafał Mańko is Fellow at the Amsterdam Centre for Transformative Private
Law, University of Amsterdam. He received a master’s degree in law from
the University of Warsaw (2003), followed by a PhD in law from the Uni-
versity of Amsterdam (2014) and a Doctor habilitatus degree in law (venia
legendi) from the University of Wrocław (2019). His research focuses on
the socio-legal aspects of the transformation from actually existing social-
ism to capitalism, as well as on critical legal theory, with a particular
emphasis on the critical theory of adjudication, law and ideology, and cri-
tique of legal form. He has co-edited (with Cosmin Cercel and Adam
Sulikowski) Law and Critique in Central Europe: Questioning the Past,
Resisting the Present (2016). His most recent publication is ‘Artur Kozak’s
Juriscentrist Concept of Law: A Central European Legal Innovation’
(2020) 45 Review of Central and East European Law 334.
Sara Raimondi is a Lecturer in Politics & International Relations at the New
College of the Humanities, London. Her research is situated in political
theory and contemporary political philosophy. She completed her doctoral
thesis at the Department of Politics and International Relations at the Uni-
versity of Westminster, with a doctoral project around the relationship
between biopolitical and neo-vitalist approaches in debates on the politics of
life in contemporary political theory. Her further research interests cover
humanism, political ontology, and theories of states of exception. Sara has
published research outputs in journals such as Democratic Theory and Con-
temporary Political Theory.
Przemysław Tacik is Assistant Professor at the Institute of European Studies,
Jagiellonian University of Krakow. He holds PhDs in philosophy and law. His
interests include contemporary continental philosophy, Jewish philosophy and
political philosophy, as well as international law and critical legal studies. Apart
from papers in English and in Polish, as well as translations from French, he has
authored three monographies: Sociology of Zygmunt Bauman (2012, in Polish),
 List of contributors ix

The Accession of the European Union to the European Convention on Human

Rights (2017, in Polish) and Freedom of Lights: Edmond Jabès and Jewish Phi-
losophy of Modernity (2015, in Polish; English translation – 2019).
Ceylan Begüm Yıldız is a PhD candidate at Birkbeck College, School of Law.
Her research areas include political and legal violence, gendered and racia-
lised subjectivities, social movements, performative theory and critical
theory.
David Fraser, FAcSS, is Professor of Law and Social Theory at the University of
Nottingham. His research focuses on the role of law and legal professionals in
the Shoah and on modern Jewish legal history. His current project examines
Jewish legal self-defense against Nazi/fascist antisemitism in the 1930s in
Canada, South Africa, the United Kingdom, and the United States.
Introduction
Untimely considerations on the state of
exception
Gian Giacomo Fusco, Cosmin Cercel and Simon Lavis

1.
State of exception is one of those concepts in the politico-juridical vocabulary
whose established popularity is not affected by their evident terminological uncer-
tainty. Since the beginning of the twenty-first century, with the emergence of what
has been defined as the war on terror, academic production on the subject has been
literally flooded by an imponent stream of contributions. However, at this historical
juncture, when exceptional measures have become a stable part of the seemingly
decadent life of liberal democracies, the problem of the state of exception seems to
have lost its appeal. Indeed, one of the reviewers of the early version of the proposal
for this book noted that interest in the state of exception is somehow declining.1
The thousands of pages on the legal and political reactions to emergencies that
have filled up books, academic journals and newspapers at the beginning of the new
millennium seem to have buried the state of exception under a blanket of obsoles-
cence. The interest in such an important doctrine of Western jurisprudence seems to
belong to the past, the remoteness of which, however, has not yet been fully deter-
mined. What is more, despite the debates fuelled by the implementation of the
legal-governmental measures that have created the global framework for the war
on terror, from the standpoint of liberal legalism emergencies remain a paradox.
In the face of the hyper-normalisation of emergencies, to sustain that the
question of the state of exception is not compelling or appealing anymore is,
for us, symptomatic of both a specific academic and legal myopia in the face
of blatant evidence, which we aim to challenge throughout this volume, and a
dependence of scientific focus on trends and fashion.
Yet, in this rather polemic introduction, there is a further and more disturbing
factor that must be taken into account to explain why the state of exception turns
out to be an obsolete question. It might be the case that the high tolerance of the
use of emergency powers and to the exuberance of executive powers, with the sub-
sequent erosion of basic rights as well as the emergence of authoritarian drives at

1 The explosion of interest in emergency law in response to the COVID-19 cor-

onavirus crisis illustrates the risk of writing the exception out of contemporary
jurisprudential discourse.
2 Giacomo Fusco et al.

the core of liberal democracy, has become so normal as to make exceptions unin-
teresting. What makes the state of exception important is indeed its exceptionality,
and when this feature wanes, exceptions logically lose their appeal. Our considera-
tions, thus, can only be untimely: ‘that is to say, acting counter to our time and
thereby acting on our time and, let us hope, for the benefit of a time to come’.2

2.
The shock and awe that has engulfed the liberal legal establishment in the wake of
the authoritarian turn, the surge of nationalism and identarian politics, bewildering
as it may be, is indicative of the theoretical scarcity of the existing conceptual
paradigms that have fashioned the legal canon since the time of the fall of the
Berlin Wall, if not from the very early years of the post-war period. Faced with the
return of the repressed historical experience of authoritarianism, constitutional
theorists, jurisprudents, human rights lawyers and global governance theorists have
fallen prey to a moment of anxiety. In the presence of the repudiation of liberal
legality, the defenders of the existing ideological superstructure have sought com-
fort either in the core of legality or within models from political theory and political
science. As such, the ominous veer towards overt authoritarian practices – from
challenges to judicial independence3 and academic freedom4 to racism5 and the
questioning of legal certainty6 – has been read through the lens of populism.7
Concepts such as populist constitutionalism8, autocratic legalism9 and stealth
authoritarianism10 have become the new symbolic veil that covers a present
marked by conflict, tension, struggle and repression. What is left unchallenged is,
unsurprisingly, the place and function of legal normativity within this very
dynamic. As this strand of literature emphasises, even in the wake of all the current
devaluation of the democratic form: ‘liberalism is … a constitutive precondition for

2 Friedrich Nietzsche, Untimely Meditation, R. J. Hollingdale transl. (Cambridge:

Cambridge University Press, 1997), 60.
3 Commission v Poland (Indépendence de la Cour suprême), ECJ 2019.
4 Andras L. Pap, Democratic Decline in Hungary: Law and Society in an Illiberal
Democracy (Abingdon: Routledge, 2018).
5 Commission takes next step in infringement procedure against Hungary for
criminalising activities in support of asylum applicants (http://europa.eu/rapid/p
ress-release_IP-19-469_en.htm).
6 European Commission for Democracy Through Law, ‘Romania: Opinion on the
Emergency Ordinances GEO No.7 and GEO No. 12 Amending the Laws of
Justice’, 24 June 2019.
7 Jan-Werner Müller, What is Populism? (Philadelphia: University of Pennsylvania
Press, 2016), 19–20.
8 David Landau, ‘Populist Constitutions’, (2018) 85 Chicago Law Review 521; Paul
Blokker, ‘Varieties of Populist Constitutionalism: The Transnational Dimension’,
(2019) 20 German Law Journal 332.
9 Kim Lane Scheppele, ‘Authoritarian Legalism’, (2018) 85 Chicago Law Review 545.
10 Ozan O. Varol, ‘Stealth Authoritarianism’, (2015) 100 Iowa Law Review 1673.
 Introduction 3

democracy, which provides for the rule of law, checks and balances, and guaranteed
fundamental rights.’11
From this point on, we are brought back from where it all started,
namely the illusion surrounding law’s ability to institute democracy,12 if
not its necessary connection to the liberal form.13 As it has been observed
in a rather different context, ‘to each problem it appears to be a solution
and the solution is almost always law’.14 The models circulated so far in
an attempt to make sense of the present shift in politics and constitutional
practice within the legal field not only offer a limited and somewhat dis-
torted image of what the present crisis entails but function as a stop-gap,
positively preventing us from addressing the current status of legality and
inquiring into the features of authoritarianism in power. Authoritarian
rulers of the day, from Erdoǧan to Bolsonaro and Trump, from Putin to
Orbán and Kaczyński, are lumped together in a haphazard manner15 with
little attention being paid to their historical trajectories; as in a theatrics
of anti-legality, they are portrayed as omnipotent subjects cynically
manipulating the law to pursue their goals.16
For its part, the people, as the constitutional subject, is reduced to a silent
bystander of this profanation of legality, deprived of agency. In the background
the law is simply an inert instrument, subjected to reframing; insofar as the new
authoritarians ‘don’t destroy state institutions; they repurpose rather than abol-
ish the institutions they inherited’.17 At the antipodes, in celebrating the return of
the political,18 the critical field positively ignores the historical sources of the
present predicament19 while satisfying itself in forgetting the structural character
of the law, its resilient stickiness and its binding force in commanding and
detouring political trajectories. The common features of this quandary, shared
by both defenders and critics of the emerging regimes of legality, in approaching
the actual threat to the existing politico-legal order find their source in a shared
oblivion to law’s historical connivance with the authoritarian projects. What has
been forgotten in this process is law’s inscription and construction in relation to a

11 Gábor Halmai, ‘Populism, Authoritarianism and Constitutionalism’, (2019) 20

German Law Journal 296, 311.
12 Hans Kelsen, The Essence and Value of Democracy, Brian Graf transl. (Lanham:
Rowman & Littlefield, 2013 [1929]).
13 Maria Paula Saffon and Nadia Urbinati, ‘Procedural Democracy, the Bulwark of
Equal Liberty’, (2013) 41 Political Theory 441.
14 Pierre Legrand, ‘Antivonbar’, (2006) 1 Journal of Comparative Law 13, 14.
15 Scheppele, ‘Authoritarian Legalism’, 550–58; Landau, ‘Populist Constitutions’,
522–31; see also, Blokker, ‘Varieties of Populist Constitutionalism’, 346, where
Yanis Varoufakis is also added to the list.
16 Scheppele, ‘Authoritarian Legalism’, 571–77.
17 Ibid., 573.
18 Enzo Traverso, The New Faces of Fascism, David Boder transl. (London: Verso,
2019) 27.
19 Ibid., 25.
4 Giacomo Fusco et al.

history of violence,20 as well as of its function as an archive21 that is able to reg-

ister and actively support the movements within polities. But ignorance of the
law excuses no one, and the substance of what is repressed is likely to catch up
with a subject’s historical becoming.
In order to overcome these theoretical limitations, which entail obvious political
and constitutional consequences – in terms of both framing legality and building
strategies for responding to the authoritarian onslaught against the traces of the
emancipatory potential that our polities still retain – we need to turn towards the
law and its exception. This is because what has been positively excluded from the
ambit of the current debates related to the shifting status of liberal democracy, the
threat or the lure of populism, the rise of nationalism, xenophobia or the revision
of the status-quo is the very infrastructure that supports the present – that is, the
deeper layers of extra-legality embedded in legal concepts and practices. Ulti-
mately, the key to understanding the catastrophe befalling the present, or grasping
the regenerative potential of new ways of being-together, seems to revolve around
the mystery of the legal form and its instrumental function.

3.
In the last two decades, the succession of multiple and diversified emergencies
have had a decisive impact in Western governmental systems and societies, which
unsurprisingly reacted by strengthening their securitarian drives. In a rather dis-
turbing fashion, liberal democracies tended increasingly to challenge the pres-
sure brought by global crisis – from international terrorism to the current waves
of migration – through the hardening of police measures and the consequent
limitation of civil and political liberties. We are assisting an unprecedented pro-
liferation of non-ordinary legislative procedures, a growing role of executives and
of technocratic administrative bodies, to the detriment of the functioning of
legislative institutions that necessarily determines the restriction of areas of
political participation. Once more, emergencies are showing their fundamental
transformative potential. Indeed, the instruments and procedures, which are
typically activated to challenge periods of profound crisis, are gradually turned
into stable elements of government. Since the turn of the new millennium,
emergencies have triggered a drive towards a reactionary mutation of liberal
democratic institutions, disguised as a necessary response to tensions and threats,
whose reality is often spectacular rather than substantial.
Democratic regimes are traditionally equipped with emergency constitutional
measures, such as the state of siege (or war) and martial law, which maintain an

20 Walter Benjamin, ‘Critique of Violence’, in Marcus Bullock and Michael W.

Jennings (eds), Walter Benjamin: Selected Writings, 1: 1913–1926 (Cambridge,
MA: Harvard University Press, 1996 [1921]), 250.
21 Renisa Mawani, ‘Law’s Archive’, (2012) 8 Annual Review of Law and Social Sci-
ence 337.
 Introduction 5

essential exceptional meaning. However, referring to the extreme of social and

political crisis that is war, they remain (often) in latency as unsuited to tackling
the fragmented nature of the multiplicity of emergencies populating the current
global scenario. As Ferejohn and Pasquino noted, ‘an explanation for the disuse
of constitutional emergency powers must lie, in part, in the development of a new
legal model for dealing with emergencies’, which they define as being a ‘legislative
model’.22 This model, which has become common usage in the more stable
democratic regimes, ‘handles emergencies by enacting ordinary statutes that
delegate special and temporary powers to the executive’.23 Central to this practice
is the idea of emergency as an exception to the normal legislative operation of the
law, which – once the emergency has been resolved – will be restored.
However, as the authors suggested, this model – albeit quite functional in
the social and political context of Western democracies – is not immune to
risks: ‘the laws made to deal with the emergency may become embedded in
the normal legal system, essentially enacting permanent changes in that
system under colour of the emergency’.24 And of course this could have a
substantial impact on liberties and on the structural balance of powers upon
which liberal democracies are built.
It is safe to say that with the emergence of a legislative model the state of
exception assumed a rather insidious form. It has been able to legitimise itself
more effectively through the integration and no longer the suspension of the
constitution, transforming itself into stable and permanent law. In certain
cases it is no longer possible to determine what legal normality consists of,
since there was never a suspension or break away but only the hybridization
of several legal registers (especially criminal, legislative and administrative),
leading to an inextricable tangle that no longer permits solutions. The intro-
duction of extraordinary measures, whose justification assumed a complex
legal form, masked the breaking of the norm: as the exception can no longer
be eliminated, the law has increasingly sought to assimilate and normalise it.
Therefore, it can be argued, as Mark Neocleous does, that ‘far from being
outside the rule of law, emergency powers emerge from within it’.25
As the unfolding of historical events, at least from the interwar period
onwards, has shown, the state of exception calls into question law’s ability to
establish itself as a coherent self-sufficient instrument of signification for political
communities. Modern law, with its call to founding values such as formal
equality and the protection of individual freedoms, derives its authority from the
ability to institute communal life by separating itself from the imposition of
substantiated morals. However, in pursuing a supposed neutrality, the law has

22 J. Ferejohn and P. Pasquino, ‘The Law of the Exception: A Typology of Emer-

gency Powers’, (2004) 2 International Journal of Constitutional Law 216.
23 Ibid., 217.
24 Ibid., 219.
25 Mark Neocleous, ‘The Problem with Normality: Taking Exception to “Perma-
nent Emergency”’, (2006) 31 Alternatives 207.
6 Giacomo Fusco et al.

proven to be a double-edged technique of regulation and administration of

power, which couples a liberating dimension with a more authoritarian (and
inhuman) side. Law’s normativity, as grounded in the idea of legality, cannot
guarantee the principles underpinning its supposed function: it cannot exclude
the exception. But this seems to be the fate of the law as a human artefact: it is
because of its substantial neutrality and inertia that positive law is prone to be
used for whatever scope, even if this means undermining itself.

4.
The starting point of our work is the recognition that the theoretical apparatus of
the state of exception sharply captures the uneasy relationship between law, life and
politics while at the same time challenging the comforting narratives that uncriti-
cally connect democracy with the tradition of the rule of law. As such, the exception
exposes a caesura within the very structure of the law (understood as a system of
signification), which opposes the normative legal content to the unarticulated force
of law. The state of siege, uses of martial law, the recourse to expedient legal pro-
cedures during and beyond times of crises, the rise of military and administrative
powers, and the confusion between legal, administrative and military categories all
seem to document and embody the essential fracture between form and force fos-
tered by our legal systems functioning under the aegis of the exception. Yet the
exception is not reducible to these historical instantiations, but also arguably seizes
on an important, yet thoroughly overlooked, aspect of modern societies, namely
the fact that ‘confronted with an excess, the system interiorizes what exceeds it
through an interdiction and in this way “designates itself as exterior to itself”’.26
Embodied in the figure of a socio-political standoff – as stasis, or civil
war – or in the recurrent use of emergency decrees, the exception represents
an abnormal course of the law, a limit-experience emerging at the point of
encounter between the legal order and the contingency of the social and the
political. The liminality of the exception, its peculiar position (or place), as a
limit or threshold, renders such a concept a privileged heuristic sign for
approaching the normal functioning of law in its intimate relation with the
other spheres of social life. As Lon Fuller perspicuously observed:

When all goes well and established legal rules encompass neatly the social
life they are intended to regulate … the law … proceeds with a transparent
simplicity suggesting no need for reflective scrutiny. Only in illness, we are
told, does the body reveal its complexity. Only when legal reasoning falters
and reaches out clumsily for help do we realize what a complex undertaking
the law is.27

26 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Daniel Heller-
Roazen transl. (Stanford: Stanford University Press, 1998 [1995]), 18.
27 Lon Fuller, Legal Fictions (Stanford: Stanford University Press, 1967), viii.
 Introduction 7

The exception thus appears as a paradigmatic practice whose analysis can at

least provisionally be usefully applied to other spheres than the law by opening
new paths for reflection on the limits of the dominant political discourse. Hence,
the exception has occupied an important place in a variety of fields, including
aesthetics, linguistics, political theory, international relations and more generally
cultural studies, being applied to a manifold series of contexts ranging from
analyses of sovereign power and the production of homines sacri to colonialism,
literary criticism and film studies. Yet this proliferation of the signifier exception
seems to obscure the initial critical thrust of the concept, which is none the less
jurisprudential. Accordingly, one of the tasks that we aim to set out for this book
is to reflect critically on the legal dimension of the state of exception.
Indeed, our intention is to recuperate this initial critical potential of the
exception and to render it useful as a conceptual framework for a historical
and genealogical understanding of the law within the Western tradition. As
such, we intend to further and critically examine the state of exception by
focusing on two interconnected lines of inquiry.
First, we are interested in reflecting on the specific politico-legal impact of the
theory of the exception in relation to the status of modern legality and its struc-
tural inability to ground the rule of law coherently. Within this context, we aim to
explore the implicit jurisprudential stand (intended as a line of enquiry that con-
nects Schmitt’s thought to Agamben and the contemporary reading of the state of
exception) informing the conceptual framework in which the idea of state of
exception operates. The exception recalls explicitly the question of the coherence
and the consistency of legal orders, in their tangled relationship with the con-
tingency of events. According to its canonical definition, the exception refers to all
those unpredictable cases, which cannot (and must not) be provided for by law’s
text; otherwise they would not be exceptions. In front of the exception, the law has
generally two options: its negation or its regulation. In both cases, the exception
represents a crack in the certainty of legal reasoning. Indeed, on the one hand the
negation of the legality of the state of exception is nothing other than turning a
blind eye on a specific legal doctrine that has accompanied law since time imme-
morial. On the other hand, the regulation of the exceptions turns out to be unable
to frame and neutralise the excesses that the exception by definition entails.
Second, we acknowledge that the state of exception is situated both as a
concept building on a complex network of political and legal philosophical
legacies and a praxis revealing a no less complex material history in its
own right. In this sense, we would like to address the latent dialogue that
the state of exception opens between the intellectual legacy of the Weimar
Republic and the interwar period and more recent political experiences.
The state of exception builds on a very specific reading of history as well as
on a genealogy of political thought explicitly linked to the theory of tota-
litarianism inasmuch as it is linked to an understanding of the emergence
of the modern democratic-revolutionary tradition. The tendency of poli-
tical and legal systems to regulate emergency powers – producing a sort of
8 Giacomo Fusco et al.

self-immunisation through the incorporation of the possibility of acting

against or outside the rules – and allow for a manipulability of such powers
emerged explicitly with the revolutionary movements that have char-
acterised modern European history. The state of exception, we maintain,
should be considered as the fil rouge that connects the liberal democratic
tradition with authoritarianism.
Thus, its significant historical element is another ‘untimely’ feature of this col-
lection, which addressed the historical theory and practice of the exception in
conjunction with the history and theory of law’s contribution to authoritarianism.
Reopening the constitution of the state of exception in various historical contexts
and re-exposing it to interrogation in light of the philosophical development of
the exception provides the means to uncover and scrutinise the threads that join
traditions and regimes otherwise treated as discrete and often in opposition.
Exemplary among the historical contexts discussed is the Third Reich, with its
strong links to relevant strands of legal thought and practice. Some of the figures
identified in the following section as key reference points in this collection –
Giorgio Agamben, Carl Schmitt, Walter Benjamin – have important connections
to Weimar and/or Nazi Germany, via either their lives or their writings, or both.
Furthermore, perhaps the paradigmatic lesson absorbed for law from the Nazi
regime and the Holocaust was to have more of it, in ways that have fundamen-
tally shaped the modern, Western – and to a degree, world – legal order: more
international law to explicitly outlaw, deter and (ultimately) prosecute similar
genocidal acts; more well-regulated exception provisions in state constitutions to
prevent sovereign exploitation such as occurred in the Weimar-Nazi transition;
and more law enumerating and safeguarding individual rights to preclude their
being undermined. In the post-war period, these developments were informed by
a narrative that located Nazi rule as an exception outside of not only ‘normal’
law but also ‘normal’ historical development; a 12-year legal and historical
aberration, which severed law’s complicity in the Nazi project, and therefore in
the ghastly potential of the exception realised by the Holocaust.
In contrast to this, this volume’s interrogation of the authoritarian past of
the exception, whether in relation to the Third Reich or elsewhere, reinforces
the correspondence of norm and exception at a fundamental level through the
layers of extra-legality entrenched within the law – and in doing so, pro-
blematises the tendency to treat law perpetually as the solution. As such it
raises the possibility that extermination does not simply represent the poten-
tial of the exception, but of law itself.

5.
This volume contains nine essays and an afterword. The contributions pro-
vide a panoply of different perspectives on the question of the state of
exception in theory and practice. As editors, we did not pursue homogeneity
of vision or uniformity in the style of presentation of arguments. Rather
 Introduction 9

than dictators acting on a commission aiming to prevent catastrophes or

towards imposing a regime of truth, we consider our role more akin to that
of silent and technical co-ordinators. The authors, thus, were left free to
enquire into the core questions of this collection (summarised in this intro-
duction) in the way they deemed more in line with their individual sensitiv-
ities. There is, however, a measure of coherence and community that goes
beyond the mere structural and conceptual articulation of the book. It is
undeniable and perhaps inescapable that the subject matter of the book is
going to be at least haunted by the presence of the thought of Giorgio
Agamben, whose rereading of the concept in recent decades has left an
indelible trace on its philosophical articulation. Behind this imprint lies the
other unavoidable dualism marking the Weimar era of catastrophes – Walter
Benjamin and Carl Schmitt are part of the intellectual references that have
ostensibly moulded our understanding of exception.
This sense of harmony is not accidental. As a matter of fact, most of the
contributors of this book have participated in a series of panels that the editors
have organised within the ‘Critical Legal Conference’ starting with Brighton in
2014 and continuing until the convention in Milton Keynes in 2018. The dis-
cussions held there continued both at other venues, such as the ‘Critical Juridical
Symposia’ in Opole (2018) and Cracow (2019), as well as within the virtual
clouds surrounding our being-in-the-law, before being materialised in this pre-
sent form. Therefore, this book is a document of a collaborative, if not collective,
exploration undertaken both under and against the precarious conditions and
limitations of our neoliberal academic world, with its staunch disdain for
authentic thought and critical thinking. It is also, alas, a document of times out
of joint, that as critical lawyers and theorists we were perhaps able to grasp
before their unfolding. Conceived and written with a sense of impending cata-
strophe, the substance of this book is certainly marked by a dissatisfaction with
the ways in which law, the exception ‘in which we live’ and, for that matter, all
core politico-legal issues that have become the texture of our present are dis-
cussed, analysed and reflected within our contemporary established jur-
isprudential and constitutional law theoretical circles.
Accordingly, this collection has a contrapuntal – if not contrarian – thrust
in terms of its style, scope and content. Drawing on the ‘courage of hope-
lessness’ that the contributors undeniably share, our aim was to move
beyond the existing limits of understanding the exception and to save its
politico-legal potential from purely antiquarian uses. Its aim is to re-think
and redeploy the conceptual inventory of the state of exception beyond its
already devalued status, thus opening new venues for critical inquiry of both
past and present, as well as by bringing the theory of the exception before
the materiality of its praxis and historical origins. In this sense, by being
untimely we strive to be contemporary. As Agamben put it in his reading of
Osip Mandelstam, ‘to be contemporary is (…) a matter of courage, because
it means being able not to firmly fix one’s gaze on the darkness of the epoch,
10 Giacomo Fusco et al.

but to perceive in this darkness a light that (…) infinitely distances itself
from us’.28 However, it is not only this temporal dimension, which imbues
our projects, but also a shared consciousness of the need to reflect on the
exception through local contexts, and historical settings that have shaped its
global articulation. While Weimar and Nazi Germany remain reference
points for such investigations, critical histories of the exception in Turkey,
socialist Poland and putatively liberal Italy are other starting points for
uncovering the operation of the exception.
Following this path, this book is as much an exercise in thinking the excep-
tion with, against and beyond the authors who have apposed their signature on
its contemporary theorisation, an act that takes on a perhaps sacrificial
dimension. Such a refusal of the ‘name of the Father’ is a reaction to the very
unfolding of the state of exception, which continues to grow before our eyes.
This brings us to a last element of commonality marking this collection, that is
its relative generational homogeneity: as critical lawyers and theorists socialised
and marked by the perpetual presence of the exception, we are wary both of its
conceptual limits in describing the antinomies of contemporary legality, as well
as its constant deployment in the politico-legal realm. The contributions are,
each in its own way, attempts at moving beyond the exception, either by unra-
velling its conceptual limits or by exposing its historical roots.
The essays are grouped in two parts. The first, ‘Law, theory and the logic of
the exception’, includes five essays focusing on some of the more thorny the-
oretical aspects raised by the state of exception as a jurisprudential object.
The second part, ‘histories of the exception’, instead, is composed of four
essays, which investigate the theory and practice of the administration of
emergency powers, with direct reference to historical events. In organising the
volume in such a way, we intended the first part as laying down the theore-
tical framework for the second part. And of course, in a dialectical fashion,
the more historical interpretations included in the second part are meant to
offer a confirmation of some of the hypotheses advanced in the first. However,
given the varied nature and the scope of the contributions constituting the
book, it is ultimately up to the readers to find connections and contrasts
between the two parts.
The volume opens with Gian Giacomo Fusco’s ‘Exception, fiction, perfor-
mativity’, which addresses in a genealogical fashion the state of exception as a
legal object. By looking to what has been defined as the ‘fictitious state of
exception’, this chapter argues that the modern legal provisions for the
administration of emergency powers should be considered as specific legal
techniques whose inner logic is akin to that of legal fictions. Therefore, the
state of exception, which is generally interpreted as a reaction to a given fac-
tual situation, should be better understood in terms of performativity.

28 Giorgio Agamben, Nudities, David Kishik and Stefan Pedatella transl. (Stanford:
Stanford University Press, 2011), 14–15.
 Introduction 11

The second essay is Cosmin Cercel’s ‘“Through a glass, darkly”: Law, his-
tory and the frontispiece of the exception’, which tackles critically the state of
exception in its relation to the status of legal normativity and the legal form.
This chapter maintains that in order to understand the political confusion of
the present status of legality, perpetually used as a powerful tool to legitimise
a transformation of liberal democratic regimes into quasi-authoritarian
executive-driven government, it is necessary to enquire into the theory and
practice of the state of exception in its tension with legal form and practice.
Cercel’s study is followed by Przemysław Tacik’s ‘The other side of excep-
tion: Sovereignty, modernity and international law’. This chapter, by focusing
on Agamben’s theory of the exception, aims at exploring the relationship
between sovereignty, international law and modernity that is nearly absent in
Agamben’s writings due to the aforementioned interrelated omissions. The
concept of the state of exception, originally pertaining to the field reigned by
sovereignty, might be well adapted to international law, where they take up
the position of the obverse side of national sovereigns. In this view, the
notorious conflation of fact and law in the international order appears not as
a contingent flaw, but an immanent feature of this order, correlative to the
mechanism of exception under sovereign power. Finally, Agamben’s analyses
of the phenomenon of camps will be used to explore the link between sover-
eignty, bare life and international law.
In Tormod Otter Johansen ‘Minor law: Notes towards a revolutionary jur-
isprudence’, Agamben’s critique of the state of exception and of sovereign
violence is coupled with Pashukanis’ Marxian theory of law. By scrutinising
the basic assumption that sees the self-standing of legal orders as necessarily
connected to the force of coercive violence, this chapter tries to think law as a
form of non-coercive social organisation. However, this implies a radical shift
from the ‘traditional’ hegemonic conception of law as regulation based on
given forms of obligation, towards a ‘minor law’, which in normativity is
sustained without any form of authority.
The final essay of Part I is Simon Lavis’ ‘The exception of the norm in the
Third Reich: (Re)reading the Nazi constitutional state of exception’, which
focuses on the vexed question of the legal status of ‘Nazi Law’. Through a
close engagement with the ‘dual’ character of the state’s law under Hitler’s
regime, this chapter investigates how the theory of the state of exception could
be used to interrogate and understand the mobile limits of the two sides of the
law – the informal/authoritarian; and the use of formal rule of law-driven
regulation – in the Third Reich. More specifically, this contribution seeks to
establish Agamben’s work on the state of exception as a useful tool to read
critically the legal aporia of the Third Reich.
Part 2 commences with Dimitrios Kivotidis’ ‘“Norm” and “exception”:
From the Weimar Republic to the Nazi state form’. In this chapter, Kivotidis
examines the unity between ‘norm’ and ‘exception’ as different forms of
exercise of public power. According to this reading, both ‘norm’ and
12 Giacomo Fusco et al.

‘exception’ are essential forms for the reproduction of bourgeois rule and the
change from one form to the other is contingent upon the intensification of
socio-economic antagonisms. This argument is pursued on the basis of an
examination of the transition from the Weimar Republic to the Nazi state
form, as reflected in the work of Carl Schmitt.
This is followed by Rafał Mańko’s ‘“Our Fatherland has found itself on
the verge of an abyss”: Poland’s 1981 martial law, or the unexpected
appearance of the state of exception under actually existing socialism’,
which offers a unique in its genre interpretation of the uses and con-
sequences of the martial law implemented in Poland in early 1980s. Such
event represents a rare example of the use of exceptional power in a socialist
country, where the working class is nominally sovereign, and where legality
does not take the ‘liberal’ form of Western democracies. In this chapter,
Mańko, by retracing the legal foundation of the Polish martial law and
specific jurisprudential meaning of the General’s dictatorship, exposes how,
paradoxically, the state of exception in the context of really existing social-
ism served as an instrument to the transition to a more liberal democracy
and capitalism.
Ceylan Begum Yildiz’s chapter, ‘A state in anomie: An analysis of modern
Turkey’s states of exception’ considers the transformation of exceptional
measures from a historical perspective while exposing the pattern of states of
exceptions in Turkey. Her chapter follows Agamben’s lead in investigating
Turkey as an anomic state, while introducing a subject-oriented perspective to
unfold the particular pattern of states of exception upon which the Turkish
nation state was built and continues to exist.
In the final chapter of Part II, Sara Raimondi’s ‘Beyond “the most serious
suspension of rights” of Genoa: Violence, anomie and force (of law)’
demonstrates that the taxonomy of the exception stretches beyond the
instances commonly found in the existing literature and opens up the ques-
tion of the function of exceptional measures within the context of con-
temporary democracies. In this regard, the analysis highlights how, across
multiple contexts, the exception operates at the intersection and blurring
point of the juridical and the political, right and violence, inside and out-
side, legal and physical status of those who are victims of exceptional prac-
tices, and of citizenship and bare life. The case of abuses and law-suspension
in Genoa offers an example of exception beyond its factual declaring and
demonstrates that exceptional instances are used by states also in the con-
text of democratic life, and, potentially, against their own citizens whenever
state institutions feel threatened.
Part 1

Law, theory and the logic of the

exception
Chapter 1

Exception, fiction, performativity

Gian Giacomo Fusco

Introduction
A few days after the terrorist attacks in Paris of 13 November 2015, the
French president François Hollande spoke before a joint session of parlia-
ment in this way:

France is at war. The acts committed in Paris and near the Stade de
France on Friday evening are acts of war. They left at least 129 dead and
many injured. They are an act of aggression against our country, against
its values, against its young people, and against its way of life. They were
carried out by a jihadist army, by Daesh, which is fighting us because
France is a country of freedom, because we are the birthplace of human
rights. At this exceptionally solemn moment, I wanted to address a joint
session of Parliament to demonstrate our national unity in the face of
such an abomination and to respond with the cool determination that
this vile attack against our country calls for […] I shall marshal the full
strength of the State to defend the safety of its people. I know I can count
on the dedication of police officers, gendarmes, service personnel, and
you yourselves, our national representatives.1

This speech followed a declaration of state of emergency (état d’urgence) for

the whole of France announced on the same evening of the attacks, which
entered into force the next morning. Introduced into the French legal order
with the law n. 55–385 of 3 April 1955, the state of emergency was devised at
that time to contain the sabotage activities and armed actions conducted
during the Algerian war by the liberation front (FLN).2 This law is

1 ‘Speech by the President of the Republic before a joint session of Parliament’, 16

November 2015, available at https://onu.delegfrance.org/Francois-Hollande-s-Sp
eech-Before-a-Joint-Session-of-Parliament
2 It is worth noting that the état d’urgence is one of the three provisions for the
administration of exceptional powers in times of emergency. The other two are
the state of siege (art. 36 of the constitution) and the regulation of extraordinary
16 Gian Giacomo Fusco

configured properly as a state of exception, which gives the executive the

powers to implement restrictive measures in relation to the freedom of
movement, residence and assembly, and to limit certain civil liberties. And as
is nowadays usual, the state of emergency declared in November 2015 lasted
approximately two years, and ended with the promulgation of new anti-terror
legislation3 that integrated into French law some of the exceptional measures
granted by the state of emergency.4
What France has been experiencing in recent years should come as no
surprise. Indeed, it is now common to many Western jurisdictions involved in
the so-called war on terror that they live in a state of war without a war
actually existing or being formally declared. As a matter of fact, and of law,
terrorism cannot be classified as a war. Hence, the characterisation of an
event (no matter how serious and threatening) that does not satisfy the
necessary conditions to be defined as war, as a war, must be taken for what it
is: a useful narrative giving legitimacy to the declaration of state of emer-
gency. The use of a vocabulary of war by President Holland is blatantly
functional to the implementation of legal measures intended for an ‘actual’
war.5 And although legally rather problematic, this strategy is paradigmatic
of the state of exception as a ‘normal’ form of government, according to

powers of the president in the case of severe crisis (regulated by art. 16 of the
constitution).
3 “Loi n° 2017–1510 du 30 octobre 2017 renforçant la sécurité intérieure et la lutte
contre le terrorism”, see: www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORF
TEXT000035932811&dateTexte=&categorieLien=id
4 On the integration and normalisation of emergency laws into democratic regimes,
see: Jean-Claude Paye, Global War on Liberty, James H. Membrez transl. (New
York: Telos Press, 2007); Günter Frankenberg, Political Technology and the Ero-
sion of the Rule of Law: Normalizing the State of Exception, H. Bauer, G. Fran-
kenberg transl. (Cheltenham: Edward Elgar, 2014); Ryan Patrick Alford,
Permanent State of Emergency: Unchecked Executive Power and the Demise of
the Rule of Law (Montreal: McGill-Queen’s University Press, 2017); Alan
Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an
Age of Crisis (London: Bloomsbury, 2018).
5 President Hollande was fully aware of this. Indeed, he stated that ‘the law which
governs the state of emergency of 3 April 1955 cannot really match the kind of
technologies and threats we face today’ and ‘Our Constitution currently has two
specific schemes that are not appropriate for the situation we are in. The first
scheme involves Article 16 of the Constitution. It specifies that the regular func-
tioning of public authorities be suspended. The president will then take such
measures as warranted by the circumstances, overriding the distribution of the
constitutional powers. And then there’s Article 36 of the Constitution, which
relates to the state of siege. And this isn’t appropriate either. A state of siege is
decreed in situations of imminent peril resulting from a foreign war or an armed
insurrection. In this situation, various powers are then transferred from the civil
to the military authorities’. See ‘Speech by the President of the Republic before a
joint session of Parliament’.
 Exception, fiction, performativity 17

which ‘a state of peace itself can at the same time be a state of emergency’,6
on the grounds of a decision of a legitimate authority.
In its canonical definition, the state of exception consists of a partial or
complete temporary suspension of a normative order to safeguard its sur-
vival in a critical situation, which usually entails the restriction of certain
rights and constitutional guarantees and a variable infringement of the
principle of separation of powers, through the delegation of special powers
to the executive. As such, the state of exception finds its (onto)logical
presupposition, and its only raison d’être, in the presence of determinate
exceptional facts constituting a threat for the state. As has been observed,
an ‘emergency is a state of fact; however, as the brocard fittingly says, e
facto oritur ius [law arises from fact]’.7 But the widespread use and abuse
of emergency powers that we are witnessing teaches us that the relation of
determination between the exception as a fact and the exception as a legal
response is not as strict as it might seem at a theoretical level. The use of
the state of emergency and more generally of exceptional laws is now so
common that their relation to a factual necessity seems lost. In this
regard, Kim Lane Scheppele maintains that emergency powers, in con-
temporary constitutional regimes when used, are ‘never the sort of total
emergencies […] as one might imagine from theory’8; they are imple-
mented partially, discreetly and pervasively, altering the substance of the
law but leaving a semblance of legality intact, often on the ground of
‘rhetorical’ threats.
When the exception becomes a regulated and normalised technique of
government, the verification of its legality or illegality – a central trope of
past and present jurisprudence9 – becomes a trivial enterprise. More

6 Slavoj Žižek, Welcome To The Desert of The Real! Five Essays on September 11
and Related Dates (London: Verso, 2002), 107.
7 Gaetano Arangio-Ruiz, Istituzioni di diritto costituzionale italiano (Milan: Bocca,
1972 [1913]), 528.
8 Kim Lan Scheppele, ‘Legal and Extra-Legal Emergencies’, in K. E. Whittington
and G. A. Caldeira (eds), Oxford Handbook of Law and Politics (Oxford: Oxford
University Press, 2008), 174.
9 From the first half of the twentieth century, with the so-called debate on con-
stitutional dictatorship, to the more recent legal analysis of the emergencies
within the war on terror, scholars in challenging the issues of exceptional powers
divided themselves into legalist and extra-legalist; those ‘who seek to include the
state of exception within the sphere of the juridical order and those who consider
it something external, that is, an essentially political, or in any case extra-jur-
idical, phenomenon’. These models are ‘defined via a spatial metaphor of law as a
container’, assuming the form of a discourse over the limits and the places of law
and exception. For the legalists, exceptional measures have to be considered as
part of the legal system, and emergencies must be met legally recurring to them.
The extra-legalists instead consider the state of exception as something irre-
ducible to the legal form, something that is and must remain outside the limits of
the law; thus, serious crisis must be challenged without the formal-procedural
18 Gian Giacomo Fusco

important, instead, would be calling into question the very nature of the
exception as a ‘legal object’, which ‘lies squarely within the field of public
law’.10 To this end, in this chapter, taking inspiration from some arguments
advanced by Carl Schmitt and Giorgio Agamben, I will examine what has
been termed as fictitious (or political) state of exception. Emerging in the
context of the French Revolution in relation to the doctrine of the state of
siege, the idea of a fictitious state of exception – as opposed to a real one –
represents a kind of prototype for all the contemporary forms of regulated
emergency powers. As we will see, a state of exception is ‘fictitious’ inasmuch
as it allows for a suspension of the normal course of the law on the base of a
‘subjective’ decision (usually made according to the loose criteria of emer-
gency, security, danger, imminent threat, etc.); for this reason, crucial to the
regulation of the state of emergency is who has the authority to decide it. And
because of its rather peculiar relation with facts, in what follows I will argue
that the state of exception should be considered as a specific legal technique
whose function and logic is akin to those of legal fictions. Consequently, the
possibility of abusing emergency powers simply to obtain a certain goal, and
not as a reaction to a chain of perilous events, will appear as inscribed in the
very nature of the exception as a legal object. But this raises a further crucial
philosophical and jurisprudential point. Generally, the state of exception has
been interpreted as a reaction to a given situation of danger; in this chapter, I
will argue instead that the exception must be better understood in terms of
performativity.

Fictional state of exception

In the volume Political Technology and the Erosion of the Rule of Law: Nor-
malizing the State of Exception, Günter Frankenberg claims that the ‘Machia-
vellian’ moment of the preservation and defence of order, necessitates a
‘pseudo-democratic or pseudo-legalist masquerade’,11 which adopts the
semantics of the doctrine of the exception. While it might seem rather unfair to
dismiss one of the central and most debated doctrine in law’s history as a
pseudo-legalistic masquerade, Frankenberg’s comments are revealing of some

limits of the law. Moreover, for the extra-legalists, the inclusion of the exception
into the realm of law accounts for a proper contamination of law itself by per-
verting the central principles of the rule of law. See: G. Agamben, State of
Exception (Chicago: University of Chicago Press, 2005); Scheppele, ‘Legal and
Extra-Legal Emergencies’; and William E. Scheuerman, ‘Survey Article: Emer-
gency Powers and the Rule of Law After 9/11’, (2006) 14(1) Journal of Political
Philosophy 61.
10 Martin Loughlin, Foundations of Public Law (Oxford: Oxford University Press,
2010), 402.
11 Frankenberg, Political Technology and the Erosion of the Rule of Law: Normal-
izing the State of Exception, 12–13.
 Exception, fiction, performativity 19

theoretical aspects central to the definition of the exception. As Carl Schmitt

explained on different occasions, the regulation of sovereign exceptional powers
is to a certain extent pointless. It is not possible to pre-define limits to the
action of the agent entitled to make decisions in the state of the exception
because, very simply, an emergency is by definition not predictable in all its
extension. Even when the norms guiding a government in a time of emergency
are included in the formal structure of the legal order (i.e. in constitutional
emergency measures), it is not possible to subsume emergency powers totally
within the system of norms. Indeed, to confer (legally) a certain extra-legal
discretion is the ultimate trademark of the state of exception. In this sense the
state of exception, as a legal doctrine, amounts properly to a masquerade,
which allows derogation from the law while pretending to do it legally.
But the term masquerade is also telling in another sense – the one that
pertains to the sphere of the ‘fictional’. From the point of view of legal his-
tory, the modern (and contemporary) doctrine of the state of exception finds
its paradigmatic ancestor in what has been termed the ‘fictitious state of siege’
(état de siège fictif). As Schmitt has explained in concluding his book on
Dictatorship, in its fictional-political version the French doctrine of the state
of siege represented a sort of prototype for the emergency provisions of con-
temporary constitutional regimes. In Schmitt’s view, what it is currently
understood as ‘state of exception’ is the last step in the evolution of the
institution of the dictatorship. And the establishment of the state of siege, in
its fictional-political form, is exemplary of a more general tendency: the gra-
dual regulation and normalisation of what was once the special legal institu-
tion of the dictatorship.
The doctrine of the state of siege emerged during the French Revolution
when the question of the suspension and preservation of rights during poli-
tical crisis became an issue. For the ancient regime the regulation of crisis
government could not amount to a problem, since it was ‘unnecessary to
suspend rights that do not exist or augment powers that are already abso-
lute’.12 Established with a decree of the National Assembly on 8 July 1791,
the state of siege was a purely military institution, concerning the ‘status’ of
fortified areas. This law concerned technical-military issues related to the
maintenance and classification of military posts. More specifically, this decree
regulated in detail ‘the policing of the fortifications; terms and conditions for
the employment of officers; and accommodation for troops, construction of
fortifications, compensation for the private property that was of necessity
confiscated as a result’.13 This law meticulously established the relationship
between the military forces and civilians by distinguishing three states [états]:
“state of peace” [état de paix], in which the military officials had power and

12 Ibid., 80.
13 Carl Schmitt, Dictatorship, Michael Hoelzl and Graham Ward transl. (Cam-
bridge: Polity, 2014 [1921]), 158.
20 Gian Giacomo Fusco

responsibility only over the army and military affairs; the ‘state of war’ [état
de guerre], in which policing responsibility remained in the hands of civilian
bodies but the military commanders were entitled to assume police powers
when necessary for the military security of the area; and the ‘state of siege’
[état de siege], where all the legal functions of civilian authorities concerning
the maintenance of order and police force passed to the military commander,
who exercised them personally.14
As Schmitt argued, the concept of the state of siege underwent a radical
mutation when ‘the actual state of siege was replaced by a declaration of
state of siege’.15 During the turmoil that preceded the birth of the Second
Republic, a decree of the Constituent Assembly issued on 24 June 1848
placed the city of Paris in a state of siege. The ‘commendable performance’
of the commissar, and the success of the measures taken, led to the con-
stitutionalising of the state of siege with the law of 9 August 1849.16 This
provision was updated and amended in 1878, in conformity with new con-
stitutional arrangements. With the reduction of the state of siege to a con-
stitutional doctrine, Schmitt maintains, the government acquired the power
to determine the ‘state of siege whenever it deemed it necessary. The formal
act of the government’s declaration supplanted the real state of emergency.
The concept gained a political meaning; the technical-military procedure
was employed in the service of domestic politics’.17 In this moment, the
state of siege has undergone a radical mutation: it has lost its factual char-
acter as reflecting an actual situation (état de siege), and has become a
formal act of a government (état de siege fictive), depending on a decision of
a governing (sovereign) agent.
It is worth looking at the words of the constitutional provisions for the state
of siege, as included in the law of 1878:

1. The state of siege can only be declared in the event of imminent

danger resulting from a foreign war or an armed insurrection. Only a
law can declare the state of siege. This law will designate the communes,
arrondissements, and departments to which it is to apply. It will fix the
period of its duration. At the expiration of this period, the state of siege
ceases automatically, unless a new law shall prolong its effects […] 7. As
soon as the state of siege has been declared, the powers of police and
those others with which the civil authority has been clothed for the
maintenance of order pass in their entirety to the military authority […]

14 Ibid. Schmitt’s reconstruction of the development of the doctrine of the state of

siege is largely based on Theodor Reinach, De l’etat de siege: Étude historique et
juridique (Paris: Pichon, 1885).
15 Ibid., 160.
16 Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern
Democracies (Princeton: Princeton University Press, 1948), 81.
17 Schmitt, Dictatorship, 161.
 Exception, fiction, performativity 21

9. The military authority has the power, (1) to conduct searches by day
or night in the homes of citizens; (2) to deport liberated convicts and
persons who do not have residence in the areas placed in the state of
siege; (3) to direct the surrender of arms and munitions, and to proceed
to search for and remove them; (4) to forbid publications and meetings
which it judges to be of a nature to incite or sustain disorder. 11 Despite
the state of siege, citizens continue to exercise the rights guaranteed by
the Constitution whose enjoyment is not suspended by the preceding
articles.18

Essential to the fictional state of siege, Schmitt points out, is that ‘the
authorization to take an action that the given situation necessitates has been
replaced by a number of limited functions’.19 In the modern constitutional
state, he goes on, ‘the solid unity of the state had finally been secured.
Tumults and riots could disturb the security, but the homogeneity of the state
would not be seriously threatened by social factions within it’; and in a stable
situation ‘the execution can be regulated according to legal procedure, as long
as the enemy is not a power that throws into question this unity’.20 The state
of siege, in its fictional-political version, represents the general paradigmatic-
model for constitutional provision regulating emergency powers; as Rossiter
suggested, ‘the state of siege was the model for similar instruments […] in
almost all […] civil law countries, and even in Anthony Hope’s mythical
Ruritania’.21
The development of the doctrine of the state of siege, from a pure
military to a fictive-political form, represented a substantial turning point
for the legal conception of crisis management. As Schmitt noted, the fic-
tional state of siege became the nodal point of a legal fiction22 since the
‘siege’ was no longer dependent on the presence of factual conditions but
became determined by a decision. Indeed, the evolution of the doctrine of
the state of siege

involved the gradual conversion of this purely military institution to one

that was political in character, one in which the state of siege became
fictif, a term to indicate that an open, civil area menaced by invasion or
rebellion was to be regarded in law as ‘besieged’23

in order to allow certain legal/political consequences to take place. The his-

tory of state of exception, thus, is the ‘history of its gradual emancipation

18 Rossiter, Constitutional Dictatorship, 82.

19 Ibid., 173.
20 Ibid., 178.
21 Rossiter, Constitutional Dictatorship, 77.
22 Schmitt, Dictatorship, 160
23 Rossiter, Constitutional Dictatorship, 80.
22 Gian Giacomo Fusco

from the wartime situation […] to be used as an extraordinary police mea-

sure’ to deal with internal turmoil and disorders of different nature.24 And
every suspension of the normal course of the law resulting from a decision of
an authority (the limits and content of which are regulated by law) finds its
prototype in the fictional state of siege; and like this one, must be considered
as rooted in the peculiar status of the law during wartime.

Dictatorship, Iustitium
In his strenuous critique of liberal legality and of the pretence of the principle
of the ‘rule of law’, Schmitt defines as ‘fictitious’ a state of exception that is
regulated by law, with the scope of preserving some individual rights and
liberties. This is very briefly the conclusion he reaches in the last chapters of
the book on Dictatorship, where he suggests that with the regulation of ‘dic-
tatorial’ powers typical of modern constitutional regimes, what was deter-
mined de facto – as a logical reaction to a determined situation of danger –
has been transformed into something that must be ‘decided on’. It seems,
though, that for Schmitt the very transformation of dictatorial powers into a
legal doctrine makes of the exception something fictional.
The idea of the state of exception as essentially ‘fictitious’ (if not properly a
legal fiction) is a central tenet of Agamben’s State of Exception. In this book he
criticises Schmitt’s genealogy of the exception (while admittedly accepting its
substantial arguments). For Agamben, the ancestor of the modern state of
exception must not be identified in the figure of the ‘dictatorship’, but in another
institute of Roman law: the iustitium. Along with the more popular dictatorship,
in fact, the iustitium represented a further instrument for the administration and
solution of crisis. While the first envisaged a specific magistrate that assumed full
powers for no longer than six months, the latter did not concern the election of a
single figure and the definition of a specific mandate but materialised itself in a
generalised suspension and alteration of the legal system.
In the first centuries of the Roman Republican history, the iustitium was
declared in particularly serious situations. This was usually followed by a tempo-
rally limited suspension of judicial and legal activities, decreed by a magistrate to
respond to a particular need (usually the recruitment of soldiers). Confronted with
a situation that endangered the Republic, the Senate had the possibility of ema-
nating a senatus consultum ultimum [final decree of the senate] by which the con-
suls, the praetor and the tribunes of the people and in extreme cases, all citizens,
are called to take whatever measures they deem necessary for the salvation of the
state. This special ‘consultum’ was based upon a decree declaring a tumultus
[tumult] (an emergency resulting from a foreign war, insurrection or civil war),
which usually led to the proclamation of the iustitium.

24 Agamben, State of Exception, 5.

 Exception, fiction, performativity 23

The key element in this legal procedure is the tumultus, which is not a term
designating a war or a specific form of emergency but a general term desig-
nating the magna trepidatio, the general state of agitation. Agamben notes
that the tumult represents the key element, the necessary presupposition, for
the iustitium to be declared. Much like in a state of emergency, the tumult is
something that must be determined and defined before the necessary legal
consequences ensue. The senate had the authority to decide on the presence
of an emergency situation, such as the imminent threat of enemy aggression
or disorder or the danger of the rise of a civil war, and in all these situations it
can declare a tumultum to be in place; this procedure is already in itself a
system of alert for the population, necessary to speed up and streamline the
otherwise rigid formalities of the decision-making process.
But what exactly is a tumultus? In the Philippics, Cicero states the
‘canonic’ definition of tumult by distinguishing it from a war: ‘for there
can be war without a tumult, there can be no tumult without a war. For
what else is a tumult than a confusion so great that greater fear arises
from it?’ For Cicero, the tumult must be distinguished as different from
both war and all other specific states of crisis. Agamben in this regard
claims that a tumult is not a war, ‘but technically designates the state of
disorder and unrest’. Much like the modern idea of an emergency, the
term ‘tumult’ constitutes for Roman law ‘the caesura by means of which,
from the point of view of public law, exceptional measures may be taken’.
‘The relation between bellum and tumultus’, Agamben concludes, ‘is the
same one that exists between war and military state of siege on the one
hand and state of exception and political state of siege on the other’.25
Hence, Agamben concludes, the state of exception as a general alteration
of a normative order has its paradigmatic ancestor not in the dictator-
ship – as Schmitt seems to suggest – but in the iustitium.
Despite this divergence, Agamben agrees with Schmitt on a crucial point:
the modern state of exception, as a regulated technical form of government,
by definition involves what is to a certain extent a work of fiction. Given its
dependence on the decision of a sovereign authority, the state of exception
becomes an effective instrument to be turned on or off at will, even when a
threat has not yet materialised or its being a menace is not explicitly evident.
Indeed, already in imperial Rome the use of the state of exception – in the
form of the iustitium – had become ‘nothing other than the sovereign’s
attempt to appropriate the state of exception by transforming it into a family
affair’.26 For this reason, in Agamben, the legal production of the state of
exception assumes the guise of an instrument that allows a body to act legally
in derogation of the law; it is the specific fiction through which the law finds

25 Giorgio Agamben, State of Exception, Kevin Attell transl. (Chicago: University

of Chicago Press, 2005 [2003]), 41.
26 Ibid., 68
24 Gian Giacomo Fusco

an anchorage to the outside by opening up a space in which a legal trans-

gression of legality becomes possible.27

The indeterminacy of the language of the exception

The histories of the evolution of the doctrine of the state of siege and of the
Roman law institute of the iustitium show that the definition of the state of
exception as a reaction to a critical situation is not totally accurate. The excep-
tion is grounded not on facts but on a decision of what certain facts are. The
difference between an ‘emergency’ and a ‘state of emergency’ is of the same
order of the difference between a fact and a judgment over what a fact is – which
is an interpretation, if not an opinion. And as with every interpretative act, a
decision on the exception relies on categories, coordinates and key words. Due to
its historical and normative evolution (which has we have seen saw the conver-
sion of a military institution into a political and legal one), the state of exception
is justified by (the often hyperbolic) reference to a war lexicon. Indeed, the legal
provisions for the management of crisis in different jurisdictions share some
common characteristics. They refer, for instance, to events that are threatening
the life of nations – such as war, insurrection and invasion – and entail measures
designed for situations of open conflict.
But this is a rather problematic aspect. In most cases emergencies do not take
the form of war or armed conflict. Therefore, constitutional regimes find them-
selves equipped with obsolete legal instruments that are not efficient in challen-
ging emergencies other than war. In this respect, Bruce Ackerman, astounded by
the responses of the Bush administration to the 9/11 attacks, detected a peculiar
insufficiency of the law in dealing with the current forms of terrorism. The law,
he claims, provides two fundamental concepts for fighting and challenging terror,
war and crime, neither of which is fit for the purpose of fighting terror.28 The war
on terror, according to Ackerman, is neither a war nor a crime, so the ‘sweeping
incursion on fundamental liberties’29 stated by legislation on war and the
‘normal’ provision for the management of crime do not fit the actual configura-
tion of the terrorist threat.

27 The attempt at defining the state of exception in terms of immunitary reaction,

elaborated by Roberto Esposito, reveals here all its insufficiency. It is true as he
claims that ‘to be able to immunize the existence of the community from threats
coming from the outside […] the law needs to protect itself first. But according to
the immunitary dialectic […], it may do so only by relying on the same principle
it seeks to dominate, on the same force it must keep at bay.’ In Roberto Esposito,
Immunitas. The Protection and Negation of Life, Z. Hanafi transl. (Malden:
Polity Press, 2015), 26. The immune reaction presupposes actual exposure to a
threat; while for the state of exception this is not a necessary condition.
28 Bruce Ackerman, ‘The Emergency Constitutions’, (2004) 113 Yale Law Journal
1029, 1032.
29 Ibid.
 Exception, fiction, performativity 25

Perhaps the most controversial aspect of the state of exception – and of

emergency more generally – is the indeterminacy of the legal language reg-
ulating it. Categories such as serious and immediate threat,30 alarm,31 case
of necessity and urgency,32 and state of tension33 but also national security,
public order and invasion are rather flexible and subject to different inter-
pretation, uses and abuses. There is no standard definition of what an
emergency is, and the legal vocabulary is not helpful in determining it.
Potentially, the same acts (with their legal consequences) might be taken to
both challenge an emergency due to internal disorders and respond to a
natural disaster. But this is, in a way, the logical consequence of what
emergency powers are thought to be for. As Alexander Hamilton rightly
observed, the circumstances that may endanger national safety are infinite
and unpredictable; and for this reason, no constitutional mechanism is able
to frame and provide for it, since

it is impossible to foresee or to define the extent and variety of national

exigencies, and the correspondent extent and variety of the means which
may be necessary to satisfy them. The circumstances that endanger the
safety of nations are infinite, and for this reason, no constitutional shackles
can wisely be imposed on the power to which the care of it is committed.
This power ought to be coextensive with all the possible combinations of
such circumstances; and ought to be under the direction of the same
councils, which are appointed to preside over the common defense.34

It might be argued that the indeterminacy of the legal language of exceptional

powers reflects on the one hand the impossibility of grasping contingency at a
denotative level and on the other hand the necessity for the law to allow a
certain flexibility in dealing with the unpredictable. Needless to say, this lin-
guistic elasticity permits for emergency powers to be used in relation to very
different situations almost irrespective of the ‘severity’ or type of the threats.35

30 French Constitution art. 16.

31 Spanish Constitution, art. 116.
32 Italian Constitution art. 77.
33 German Constitution, art. 80 a – 1.
34 Alexander Hamilton et al., The Federalist Papers (Oxford: Oxford University
Press, 2008), 114.
35 The Italian case is in this regard particularly instructive. The troubled period of
the ‘anni di piombo’ saw the emergence of a legislative practice that, according to
jurists and scholars, has changed – legally – the nature of the Italian constitu-
tional asset. Since then, in fact, the use of law decree by governments has become
the norm. Art. 77 of the Republican Constitution established that ‘in extra-
ordinary situations of necessity and emergency’ the government could adopt
‘provisional measures having force of law’ (law-decrees), which had to be pre-
sented the same day to parliament and which went out of effect if not converted
into law within sixty days of their issuance. Most of the normative apparatus of
26 Gian Giacomo Fusco

Paraphrasing Schmitt, the state of exception is always something that

must be decided on, and therefore determined ex auctoritate propria. But in
this sense the modern state of exception, whose history we have seen began
with the emergence of the doctrine of the fictional state of siege, overturn
the ‘classical’ interpretation of exceptional powers, according to which
emergency is a state of fact out of which the law arises. Hence the banal but
necessary consideration that states of emergency are not always and not
wholly emergency. And it is its ephemeral relations with facts that led
Schmitt to conclude that the state of exception has become the ‘nodal point
of a legal fiction with the help of which certain legal consequences are sup-
posed to have come about’36 and Agamben to claim resolutely that the state
of exception is the ‘fictio iuris par excellence, which claims to maintain the
law in its very suspension’.37

The logic of legal fictions

Although the juxtaposition of the concepts of state of exception and legal
fictions is theoretically hazardous (especially since the first pertains to the field
of public law, while the latter is traditionally tied to the linguistic practice of
court procedure), drawing analogically between the two is indeed a useful
strategy to understand the ‘nature’ of the state of exception as a legal phe-
nomenon. In its ordinary definition, a legal fiction is a statement that ‘a
judge, a scholar or a lawyer tells, while simultaneously being aware that the
statement is not a fact’.38 As Yan Thomas defines it, a fiction is a ‘method
(process) […] that belongs to the pragmatic of law. It consists in disguise the
facts, to declare them other than they are, and in taking from the same
adulteration and false supposition, the legal consequences’.39 In other words,

the ‘special law’ has been enacted through the use of decree-law; and it was
starting from the experience of the 1970’s that in Italy the use of such a normative
tool became common practice. Some defined such misuse of executive emergency
power a pathology, others highlighted the blatant unconstitutionality of it; in any
case, 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 implies, however, that the democratic principle of the separation of powers
has been altered and that the executive power has in fact, at least partially,
absorbed the legislative power. See: Carlo Fresa, Provvisorietà con forza di legge e
gestione degli stati di crisi (Padova: CEDAM, 1981); Pietro Pinna, L’emergenza
nell’ordinamento costituzionale italiano (Milano: Giuffrè, 1988); Andrea Cardone,
La ‘normalizzazione’ dell’emergenza: Contributo allo studio del potere extra ordi-
nem del Governo (Torino: Giappichelli, 2011); Giovanna Pistorio, La Decreta-
zione d’urgenza (Roma:Tre-Press, 2016).
36 Schmitt, Dictatorship, 160.
37 Agamben, State of Exception, 59.
38 Annelise Riles, ‘Is the Law Hopeful?’, Cornell Law Faculty Working Papers, 2010, 68.
39 Yan Thomas, ‘FictioLegis’, in Les Opérations du droit (Paris: Le Seuil, 2011),
133.
 Exception, fiction, performativity 27

we are in presence of a legal fiction when in a specific situation actors

involved in making legal decisions agree on a description of the real world but
decide to act as if in the presence of a different state of affairs to attain a
specific goal.
Law’s practice and history is populated by fictions of very different
kinds. From the legal personality of corporations to the adulteration of
facts in court proceedings, the creation of specific fictional objects or
expedients has been part of the law from time immemorial. As Michael
Quinn points out, legal fictions can be grouped in three broad categories:
(i) legal/moral fictitious entities – such as obligation and power; (ii) pro-
cedural or linguistic expedients used by legal actors attain a certain parti-
cular outcome or to bring cases within their remit – the rule of Roman
law which considered foreigner ‘as if ’ they were Roman citizens, or the
decision of a London court that Minorca was in London in order to
acquire jurisdiction over a case are classic examples of this type of fic-
tions; (iii) theoretical fictions – like the assertion that common law judges
do not make law but merely apply law that always existed.40 What all
these types of legal fiction have in common is their being ‘to a certain
extent’ false, construed facts that nevertheless have concrete real effects in
the reality of legal practice.
In his Ancient Law Henry Maine includes legal fictions, along with
equity and legislations, among the instruments through which law is
‘brought into harmony with society’.41 Legal fictions, he claims, are
‘invaluable expedients for overcoming the rigidity of law’,42 which however
should be considered as belonging to early stages of legal civilisation.
Leaving aside the historical positioning of legal fictions in the evolution of
the form of law, Maine’s argument exposes clearly the practical function
of this peculiar tool. A legal fiction allows for the determination of the
‘factual’ ground for the implementation of the law. It is, therefore, a
practice which permits an adaptation of the law to unprecedented cir-
cumstances, by creating the factual conditions upon which law applies.
Lon Fuller – who nevertheless defined legal fictions as a pathology of
law – claimed in this regard that fictions are ‘generally the product of the
law’s struggles with new problems’; since ‘we cannot foresee what changes
are destined to take place in our social and economic structure’,43 the
legal fiction will remain a useful tool for adapting the law to renewed
conditions.

40 Michael Quinn, ‘Fuller on Legal Fictions: A Benthamic Perspective’, in Maksy-

milian Del Mar and Wiliam Twining (eds), Legal Fictions in Theory and Practice,
(London: Springer, 2015), 65.
41 Henry Maine, Ancient Law (New York: Henry Holt & Co.), 24.
42 Ibid., 25.
43 Lon Fuller, Legal Fictions (Stanford, CA: Stanford University Press, 1967), 94.
28 Gian Giacomo Fusco

The operative logic of legal fictions consists of the creation of specific fic-
titious facts that allow the law to apply to circumstances in which it could not
normally be applied. In this sense, fictions are a useful technical tool for the
adaptation of an order of norms to unforeseen circumstances while remaining
unchanged. As Maine puts it, a legal fiction ‘conceals, or affects to conceal,
the fact that a rule of law has undergone alteration, its letter remaining
unchanged, its operation being modified’.44 The implementation of legal fic-
tions involves an actual change in the law while maintaining the fiction that it
remained the same.45 The underlying logic of the state of exception, thus,
could be consider as analogous to the one of legal fiction: in both cases an
alteration of the normal rule of law is the outcome of a non-objective deter-
mination of facts, while supposedly keeping the text of the law intact in its
punctual suspension/modification. The early formulation of the fictitious state
of siege is in this respect particularly instructive. In this case, the suspension
of certain rights protected by the law is the outcome of the ‘fiction’, according
to which a specific area under threat as to be regarded in law as if besieged.
But this implies logically that the law remains unchanged while its application
is modified.
So, it might be argued that the doctrine of the exception shares with the
legal fiction the peculiarity of being an instrument for the modification or
alteration of the law with the pretence of maintaining its continuity.
Indeed, they are both considered in legal theory as techniques imple-
mented to preserve the letter of the law in the face of new, unpredicted
facts. Therefore, it might be argued that the state of exception and legal
fictions share the same nature: they are both technical instruments allow-
ing, in different ways, the preservation of the law through its substantial
modification. Both the state of exception and legal fictions involve a non-
objective determination of facts; however, for the latter, legal consequences
are decided on the base of false premises, while for the former the partial
or total suspension of a normative order could be the outcome of a ‘real’
emergency. Moreover, a further distinction must be made: if the legal fic-
tion is aimed to create specific (fictional and false) facts for the application
of a limited set of rules, the exception’s purpose is to create the concrete
possibility of the suspension and non-application of the law – with all the
risks this enterprise brings. In both cases, however, the law calls – legally –
to exceed its dictates in order to gain the condition of its possibility,
guaranteeing for itself the ability to act on the outside. Indeed, both legal
fictions and the exception are essentially illegal; but it is this illegality that
allows the law to preserve its integrity.

44 Maine, Ancient Law, 25.

45 G. Leung, ‘Illegal Fiction’, in Benjamin Hutchens (ed.), Jean-Luc Nancy: Justice,
Legality and World, (London, New York: Continuum, 2012), 82.
 Exception, fiction, performativity 29

Performativity
In a compelling passage on the significance of emergency powers as a para-
digm of government, Agamben argues that ‘the state of exception appears as
the opening of a fictitious lacuna in the order for the purpose of safeguarding
the existence of the norm and its applicability to the normal situation’; this
lacuna, he continues, ‘is not within the law [la legge], but concerns its relation
to reality’.46 Indeed, the exception, according to what has been argued so far,
calls into question law’s relation to reality in a twofold way. First, being con-
figured as a reaction to a determined critical situation it exposes the rather
feeble link that ties law’s normative integrity to the contingency of events.
Second, as with all legal principles and categories, the state of exception is a
paradigm of the peculiar modality in which the language of law relates and
inform reality. For the law, facts are not simply things placed in the outside
world waiting to be discovered. On the contrary, as Geoffrey Samuels
explains:

The idea that legal science is a discourse that has its object in actual
factual situations is to misunderstand, fundamentally, legal thought. …
[Law] functions as much within the world of fact as within the world of
law and it is this dual role that endows it with its capacity to create vir-
tual facts. Lawyers, like scientists, do not work directly on reality but
construct rationalized models of this reality, and it is these models that
become the ‘objects’ of legal discourse. The models of fact upon which
the […] lawyers work are as ‘virtual’.47

In this sense, the concept of state of exception and the whole terminological
arsenal of emergency laws are the specific virtual facts (or legal patterns)
through which the law apprehends its relationship with the contingency of
social and political (but also economic) events. And as we have seen pre-
viously through the words of Alexander Hamilton, it is the difficulty for the
law to ‘grasp’ what will happen next that makes the legal language of emer-
gency powers necessarily indeterminate (or virtual).
But, as is always the case with the law, legal objects and decisions, no
matter how virtual or fictional, have ‘real’ consequences. To paraphrase Hans
Vaihinger, for the law ‘the world of the “unreal” is just as important as the
world of the so-called real or actual (in the ordinary sense of the word);
indeed it is far more important’.48 Its ritual formality and functional systemic

46 Agamben, State of Exception, 31.

47 Geoffrey Samuels, ‘Is Law a Fiction?’, in Legal Fictions in Theory and Practice,
74.
48 Hans Vaihinger, The Philosophy of ‘As If’: A System of the Theoretical, Practical,
and Religious Fictions of Mankind, C. K. Ogden transl. (New York: Harcourt
Brace, 1935 [1911]), xlvii.
30 Gian Giacomo Fusco

closure makes the law capable of creating ‘new worlds out of old ones in a
process which one could describe […] as fact from fiction’.49 However, legal
objects – the world the law concurs in creating – are not something the reality
of which must be doubted. It is difficult to deny the existence binding rela-
tions and subjectivities, created by law’s words. The law is indeed nothing
other than a linguistic practice capable of creating its own reference in the
outside world: or as Agamben maintains, the law is ‘the realm in which all
language tends to assume a performative value’.50
The idea of performativity has proven to be particularly instructive for
characterising the constructive link between law’s language and reality. To put
it bluntly, the paradigm of performativity in law, while addressing the una-
voidable bond that ties the spheres of legal normativity and the outside world,
presupposes the neat distinction between the plane of norms and command
and the reality they are called to regulate. In this light, legal objects can have
a real effect on the world as long as they are not facts. What constitutes law’s
performative essence is the capacity to produce a reality, which stands apart
from the factual world but at the same time has an effect on it. Indeed, it
could be argued that the law is a discursive practice in which dwells the same
creational potentiality of language. A fact, an event or a thing becomes part
of the (legal) world only when is translated into the language of law: ‘quod
non est in actis non est in mundo’.51
The poignancy of the paradigm of performativity for jurisprudence is
acknowledged by John L. Austin, the author who first developed it into a
theory. As he claimed, not without a certain sarcasm, the dismissal of the
question of performativity of legal utterances, and the ‘widespread obsession
that the utterances of the law … must somehow be statements true or false,
has prevented many lawyers from getting this whole matter much straigh-
ter’.52 Austin’s theory is as simple as it is enigmatic: there are some linguistic
elements, the speech acts, the meaning of which refers to a reality that their
own enunciation creates. The examples are well known (to declare, to pro-
mise, to command, etc.) and an explanation here is not required for the pur-
poses of this paper. What is important to take into account is that
performative speech acts require conditions that, if not met, make them to fail
in their function. A speech act takes place only when is uttered according to

49 C. Messner, ‘“Living” Law: Performative, Not Discursive’, (2012) 25(4) Interna-

tional Journal for the Semiotics of Law 544; here Messner refers to Nelson
Goodman, Ways of Worldmaking (Indianapolis: Hackett, 1978).
50 Giorgio Agamben, The Time that Remains: A Commentary on the Letter to the
Romans, Patricia Dailey transl. (Stanford, CA: Stanford University Press, 2005), 132.
51 Michele Spanò, ‘Le Parole e le Cose (del Diritto)’, in Yan Thomas, Il Valore delle
Cose (Macerata: Quodlibet, 2015), 91.
52 John L Austin, How to Do Things with Words (London: Oxford University Press,
1962), 19.
 Exception, fiction, performativity 31

precise circumstances, which authorise and guarantee its validity. Austin listed
four necessary conditions for a performative utterance to succeed:

A1. There must exist an accepted conventional procedure having a cer-

tain conventional effect, that procedure to include the uttering of certain
words by certain persons in certain circumstances, and further, A2. the
particular persons and circumstances in a given case must be appropriate
for the invocation of the particular procedure invoked. B1. The procedure
must be executed by all participants both correctly and B2. completely.53

This list of necessary conditions could be grouped in two sets: on the one
hand we have what might be termed procedural rules that must be followed
(accepted conventional procedure that must be executed correctly and com-
pletely); on the other hand we find the authoritative aspect of the act,
according to which a performative utterance will have the desired effect only
when pronounced by the ‘appropriate’ author-person. If the conditions are
not met, Austin claims, we are in presence of infelicities – that is, acts the
performativity of which ‘misfires’. When a person already married utters a
marriage vow – or when the marriage is celebrated without the necessary
ritual-normative procedure – the act proffered simply does not take place, and
no marriage occurs. And by the same token, anyone can shout in a public
square, ‘I declare the state of national emergency’, and ‘as it cannot be an act
because the requisite authority is lacking, such an utterance is no more than
words; it reduces itself to futile clamour, childishness, or lunacy’.54
As has been observed, the ‘necessary conditions’ that Austin placed as vital to
a speech act are rather close to the “validating conditions” of obligations, con-
tracts and covenants more generally.55 For the law, a statement assumes legal
force only when pronounced or validated by a person whose position gives her
the appropriate authority, as decreed by a certain accepted conventional proce-
dure. The coincidence between the law’s practice and the validating conditions of
a performative act is here glaring: the sentence of a judge – to legislate, to sti-
pulate a contract, etc. – needs, like a speech act, the presence of both a proce-
dural (formal-normative) and an authoritative (personal) element. These two
elements must work in synergy to make law’s statements legally valid.
From this point of view, the state of exception appears as a legal perfor-
mance (carried out according to an established ‘accepted conventional

53 Ibid., 14–15.
54 Émile Benveniste, Problems in General Linguistic (Miami: University of Miami
Press, 1971), 236.
55 Elaine Scarry, ‘The Declaration of War: Constitutional and Unconstitutional
Violence’, in Austin Sarat and Thomas R. Kearns (eds), Law’s Violence (Ann
Arbor: University of Michigan Press, 2009), 29. See also: Howard Warrender,
The Political Philosophy of Hobbes: His Theory of Obligation (Oxford: Clarendon
Press, 1957).
32 Gian Giacomo Fusco

procedure’ by the right person), but of a special kind. By suspending the

normal framework of the law, the exception produces a peculiar distortion of
law’s performativity since it ‘performs’ legally a specific change in the oper-
ativity of law, according to which a set of norms and rights, while still in
existence, do not have legal effects. In the exception the normal-procedural
element of law is altered or, to use Schmitt’s words, recedes, while the perso-
nal authoritative element emerges as the primary guarantee of law’s existence.
Indeed, one of the most common traits of emergency administration is the
concentration of powers in the hands of a single authority (usually the
executive). With the state of exception, we assist a (partial if not total) reuni-
fication of the different forms of powers – usually separated and balanced – in
a single deciding body that, because of the crisis, generally has the authority
of acting with a degree of discretion – infringing in certain cases basic rights
protected by the law. The alteration of the established legal-decision-making
procedure and the re-joining of the powers in the hands of a single govern-
mental body illuminate the authentic fullness of sovereign authority. For this
reason, every declaration of state of exception must be considered
authoritarian.

Conclusion
The modern doctrine of the state of exception as a fictitious or political
technique of government is rooted in the experience of being besieged, which
is in the most perilous situation for the survivorship of the integrity of the
state. And this is visible in the language of emergency laws. From a strictly
legal point of view, the state of exception consists of a crisis reaction
mechanism that delegates to a single body exceptional powers in order to
restore a condition of normality as quickly as possible. The state of exception
is thus intended as a tool to protect a given constituted order in times of
crisis. But by providing the authority to declare a ‘state’ of emergency as
being in place, the doctrine of the exception allows a legitimate authority to
make ‘real’ what it is not, or what it is not yet real. Such a decision, as has
been argued, must be considered a work of fiction – with, however, very real
consequences, the most important of which is the obfuscation of the classic
categories of ‘war’ and ‘peace’.
The recognition that the fictional state of exception, as a form of adminis-
tration of emergency regulated by law, might offer a vehicle for abusive state
action has always been clear. The risk is that the increased concentration of
governmental powers, along with an alteration of the constitutional checks and
balances, could foster the emergence of an authoritarian system out of a
democratic one. Already Rossiter in his seminal work on constitutional dicta-
torship maintained that emergencies tend to perpetuate themselves, despite all
the control mechanisms typically present in constitutions. As he claimed, the
impression that the delegation of legislative powers, the making of law by
 Exception, fiction, performativity 33

decree and in general the state of emergency are purely transitory and tem-
porary solutions is just misleading. On the contrary, he goes on, ‘the instru-
ments of government depicted here as temporary “crisis” arrangements have in
some countries, and may eventually in all countries, become lasting peacetime
institutions’.56 And recent developments are further proof of this trend.
It thus seems as if the possibility of being abused is inscribed in the very
nature of the state of exception as a legal object – and this is a belief shared
by many.57 In order to improve our position in the struggle against an
exception that has become the rule and given the incessant failures of jur-
isprudence to find a way out of this, the task before us is to move towards
thinking of legal normality with no exceptions – even if this means going
beyond the law as we know it.

56 Rossiter, Constitutional Dictatorship, 313.

57 Oren Gross, ‘Chaos and Rules: Should Responses to Violent Crisis Always Be
Constitutional?’, (2003) 112 Yale Law Journal 1011, 1021.
Chapter 2

‘Through a glass, darkly’

Law, history and the frontispiece of the
exception
Cosmin Cercel1

Nemo censetur ignorare exceptionem

What, if anything, is the paradigm of the exception able to offer to a critical
understanding of our politico-legal present? How – that is, through which
conceptual framework and by reference to which procedure of truth – are we
to address the disruption produced in our polities by the maelstrom of crises
affecting the world during the past decade? Last and not least, how are law-
yers able to make sense of the shifting grounds of legality and the cracks
within the symbolic order of liberal democracy?
The argument that I advance here is a simple one: there are two inter-
connected ways in which we can make sense of the substance of our legal
present. They both are within the reach of lawyers, and they have been pre-
sent within various traditions of legal and political theory for a while. Con-
tinuing to ignore them is not only a matter of intellectual responsibility but
tantamount to connivance to law’s unfolding history of self-erasure. To dispel
the mystery surrounding this panacea, I hasten to add that on one hand there
is the very concept of the state of exception, with both its intellectual geneal-
ogy and its material history of practices. On the other, there is nothing else
than the status of the law as a field of knowledge and as a praxis moulded by
historical experience. By bringing both together we can develop a powerful
theoretical apparatus able to cut through the mist of jurisprudential obscurity,
intellectual quietism and political confusion that surrounds the present status
of legality.
The starting point of this analysis rests with the jurisprudential core of the
concept of the state of exception. In its amphiboly – as both a politico-legal
practice of suspending the law and a theoretical paradigm of modern law
and politics – the state of exception embodies our Zeitgeist. Martial law,
expedite administrative measures, secret courts, indefinite administrative

1 Research for this chapter was undertaken in the context of the research project enti-
tled ‘Heads of State (Princes, Kings and Presidents) and the Authoritarian Dynamic
of Political Power in Romanian Constitutional History’, funded by the Romanian
Research Funding Agency (UEFISCDI), PN-III-P4-ID-PCE-2016–0013.
 ‘Through a glass, darkly’ 35

detention, temporary suspension of constitutional guarantees are all part of

the humdrum of daily legality, constituting what was euphemistically coined
as the ‘preventive state’.2 At the time I am writing this chapter, President
Trump has declared a National Emergency Concerning the Southern Border
of the United States.3 Last year, faced with the yellow vest protests, the
French minister of the interior was flirting with the idea of declaring a state
of emergency4 only a year after it has been lifted and three years since its
initial declaration in the wake of the terrorist attacks in Paris of November
2015.5 Now, these are surely extreme measures emerging in a particular
context and not the same as practices as questionable and stealthy6 as
packing courts and other institutional bodies, as taking control of the judi-
ciary and the press, as curtailing academic freedoms. Yet there is an unde-
niable discursive link between the suspension of the constitutional process
and the minute sapping and dismantling of putative rational legal institu-
tions, just as there is an underlying ideological conflation between the dis-
course of exception and the public displays of ultranationalism. The recent
marches in Warsaw7 and Sofia,8 the affirmation of the far right and the
overall return of nationalist rhetoric bear witness for this overlapping
between security and identitarian concerns. We are indeed living within a
time of exception.
No matter how worrying these practices appear to be at a first glance, they
become even more so if placed in their proper historical context. As signifying
practices they point back explicitly to the interwar period and the alternative

2 András Sajó and Renáta Uitz, The Constitution of Freedom: An Introduction to

Legal Constitutionalism (Oxford: Oxford University Press, 2017), 440–444.
3 Proclamation 9844 of 15 February 2019 Declaring a National Emergency Con-
cerning the Southern Border of the United States, 84 Federal Register No. 34, 20
February 2019.
4 ‘Instaurer l’état d’urgence? Castaner dit ne pas avoir de “tabou”’, L’Obs, 1
December 2018, available at: www.nouvelobs.com/politique/20181201.AFP9398/
instaurer-l-etat-d-urgence-castaner-dit-ne-pas-avoir-de-tabou.html; ‘Le recours à
l’état d’urgence, une option face aux débordements des “gilets jaunes”?’, Le
Monde, 3 December 2018, available at: www.lemonde.fr/les-decodeurs/article/
2018/12/03/le-recours-a-l-etat-d-urgence-une-option-face-aux-debordements-des-gi
lets-jaunes_5392147_4355770.html.
5 Decree No. 1475 of 14 November 2015 concerning the application of Statute 55–
883 of 3 April 1955, JORF No. 264, 14 November 2015, p. 21297; Statute No.
1501 of 20 November 2015 extending the application of the Statute 55–883 of 3
April 1955 on the state of emergency and reinforcing the efficacy of its provisions,
JORF No. 271, 21 November 2015, p. 21665.
6 Landau, ‘Populist Constitutions’, 534–5.
7 ‘“White Europe”: 60,000 nationalists march on Poland’s independence day’, The
Guardian, 12 November 2017, available at: www.theguardian.com/world/2017/
nov/12/white-europe-60000-nationalists-march-on-polands-independence-day.
8 ‘Far-right activists stage torchlit march in Bulgarian capital’, Reuters, 16 Feb-
ruary 2019, available at: www.reuters.com/article/us-bulgaria-farright-march/fa
r-right-activists-stage-torchlit-march-in-bulgarian-capital-idUSKCN1Q50PG.
36 Cosmin Cercel

projects of modernity9 that that era has fostered. In doing so, they reconstruct
the law according to new ideological lines and expose the ‘unworked
through’, resistant past within the contemporary imaginaries of the Western
legal traditions. This is not simply a case of reconnecting to past experience,
of mimicking or reproducing modes of political takeover in an attempt to
seizing power; rather it is an affirmation of what has always already been part
of the constitutional and political horizon of our polities. From the stand-
point of a longue durée history of the law, we are now witnessing yet another
moment in a process of increasing affirmation of the powers of the execu-
tive,10 sweeping constitutional guarantees and securing control over the legal
apparatus.11 It is from within this line of inquiry that the continuity with the
past politico-legal practices is not simply a rhetorical and ideological trope
raised in order to provoke, soothe or shock our political sensitivities but a
historical nexus that can be documented through an analysis of the regimes of
legality in place in Europe and beyond.12

The antinomies of the legal form

Given that the law’s structure finds itself at the borders of material practices
and conceptual representation and that law is an ideological apparatus13 with
a material inscription14 and a conceptual body, its history knows very few
moments of rupture. The memorial, symbolic and ultimately legal practices
through which postwar liberalism, state-communism or post-communist
transitions have tried to address this resistant material discursive dimension
within the body of the law have been extremely scarce and generally inaccu-
rate. Central concepts for constitutional law and theory, such as sovereignty,
legality and belonging, have continued to be thought, taught and professed
with very little – if any – attention paid to their historical construction,

9 David D. Roberts, The Totalitarian Experiment in Twentieth Century Europe

(London: Routledge, 2006), 412–452.
10 Karl Loewenstein, ‘The Balance between Legislative and Executive Power: A
Study in Comparative Constitutional Law’, (1938) 5 Chicago Law Review 566.
11 Even mainstream constitutional lawyers would agree to this assessment, without
drawing the otherwise obvious historical conclusion. See Sajó and Uitz, The
Constitution of Freedom, 440–445.
12 Christian Joerges and Navraj Singh Ghaleigh (eds), Darker Legacies of Law in
Europe: The Shadow of National Socialism and Fascism Over Europe and Its
Legal Traditions (Oxford: Hart, 2003); David Fraser, Law after Auschwitz:
Towards a Jurisprudence of the Holocaust (Durham, NC: Carolina Academic
Press, 2005); Stephen Skinner (ed.), Fascism and Criminal Law: History, Theory,
Continuity (Oxford: Hart, 2015); Stephen Skinner, (ed.), Ideology and Criminal
Law: Fascist, National Socialist and Authoritarian Regimes (Oxford: Hart, 2019).
13 Louis Althusser, Sur la reproduction (Paris: Presses Universitaires de France, 1996
[1970]), 106–111.
14 Warren Montag, ‘The Soul Is the Prison of the Body: Althusser and Foucault
1970–1975’, (1995) 88 Yale French Studies 53, 63.
 ‘Through a glass, darkly’ 37

ideological weight and semantic luggage. As Peter Sloterdijk aptly put it in his
scathing, yet misdirected criticism of German revolutionary communism, the
idea of ‘another state, once again a state’15 seems to have been the horizon
limiting the reconstruction of polities at the end of wars and in the wake of
major social reshuffling. Now, this reconstruction was both wanting in scope
and obscure in its ideology and structure – from the wilful and informed
limited prosecution of fascist executioners and collaborationists16 in both the
West17 and the East18 to the ambiguous preservation of ideological tropes
such as anticommunism in the West19 and nationalism clothed as patriotism
in the East.20 Beyond these trends affecting the ‘general’ ideology of the
polities lie also the minute history of constitutional reforms, transitional jus-
tice processes, as well as the daily life of academic production and legal
training which by and large continued to function on the continent as much
as in common law jurisdictions as if nothing had happened. And indeed, from
a legal standpoint, informed by the formalist paradigms, nothing had hap-
pened with the substance and practice of the law. ‘Law continued while six
million died’,21 and indeed law through its agents continued to entertain the
illusion of a unitary body of rules able to structure the life of the polities and
knit communities under its rule, unexposed to historical upheaval.
This trend was irrespective and at times contrary to the ideological pled-
ges of the regimes in place, and certainly irrespective of the contingent
ideological content of the particular norms at either constitutional or infra-
constitutional level. Law was there to stay, even in the midst of purportedly
revolutionary transformations, of political reforms and in its explicit or
implicit disapplication.22 Yet, the resilience and survival of the legal form is
not a matter of securing formally or substantially freedoms or rights in an

15 Peter Sloterdijk, Critique of Cynical Reason Michael Eldred transl (Minneapolis:

University of Minnesota Press, 1987), 68.
16 Jerome S. Legge, ‘Collaboration, Intelligence and the Holocaust: Ferdinand
Ďurčanský, Slovak Nationalism, and the Gehlen Organisation’, (2018) 32 Holo-
caust and Genocide Studies 224.
17 David Fraser, ‘(De) Constructing the Nazi State: Criminal Organizations and the
Constitutional Theory of the International Military Tribunal’, (2017) 39 Loyola
of Los Angeles International & Comparative Law Review 117.
18 Francine Hirsch, ‘The Soviets at Nuremberg: International Law, Propaganda,
and the Making of the Postwar Order’, (2008) 113 American Historical Review
701; Michael J. Bazyler and Kellyanne Rose Gold, ‘The Judicialization of Inter-
national Atrocity Crimes: The Kharkov Trial of 1943’, (2012) 80 San Diego
International Law Journal 77.
19 Traverso, The New Faces of Fascism, 116–118.
20 Cosmin Cercel, Towards a Jurisprudence of State Communism: Law and the
Failure of Revolution (Abingdon: Routledge, 2018), 146–150.
21 Fraser, Law after Auschwitz, 145.
22 Cosmin Cercel, ‘The Other Otherwise: Law, Historical Trauma and the Severed
Gardens of Justice’, (2014) 8 Pólemos: Journal of Law, Literature and Culture
275.
38 Cosmin Cercel

attempt to articulate and limit the foundational violence of the law. Rather,
the opposite seems to be true. Through its very operation, the legal form
secures the survival of the exercise of unlimited sovereign power. Let us rest
on this point further: since the end of the First World War, an unprece-
dented growth of expedient measures situated at the limits of the legal
system, yet within its boundaries, can be attested against the background of
(and against the) mechanisms meant to supplant and limit the arbitrary
exercise of power.23 This took the form of mechanisms such as the institu-
tion of martial law, of emergency measures of a military, security and
financial nature, of explicit suspensions of fundamental rights,24 as well as
diffuse powers that escape the scrutiny of courts. Sometimes these provisions
found a place even within the very texture of codified legislation, such as in
the case of criminal legislation, continuing to act at the level of principles
informing the legal grammar of polities.25 Last, but not least, it nested
within the very formulation of the mechanisms pledging protection of
human rights but at the same time the primacy of the protection of the legal
order and state sovereignty.26 However, this is not a mere case of a conflict
of values that can make the object a balancing of rights but a fundamental
limit of the normativity in grounding itself.
At this stage the peculiar historical context in which the affirmation of the
primacy of the legal form occurred as well as the subsequent paradoxes it
entails should be emphasised. If the most rigorous theory articulating the law
as a normative category pertaining to the realm of ought is indeed Kelsen’s
Pure Theory of Law,27 one of its often disregarded features in relation to its
intellectual and material origins is its inscription within the same historical
trajectory that has produced the growth of executive power and the series of
suspension of the law. Let us note not only that the pure theory is not only
implicitly connected to the debates related to the application of the infamous
article 48 in the Weimar constitution28 but written within a historical

23 Karl Loewenstein, ‘Autocracy Versus Democracy in Contemporary Europe I’,

(1935) 29 American Political Science Review 571.
24 Karl Loewenstein, ‘Militant Democracy and Fundamental Rights I’, (1937) 31
American Political Science Review 417.
25 Cosmin Cercel, ‘The Enemy Within: Criminal Law and Ideology in Interwar
Romania’, in Stephen Skinner (ed.), Fascism and Criminal Law: History, Theory,
Continuity (Oxford: Hart, 2015), 101–126.
26 Cosmin Cercel, ‘The Law of Blood: Totalitarianism, Criminal Law and the Body
Politic of World War Two Romania, in Stephen Skinner (ed.), Ideology and
Criminal Law: Fascist, National Socialist and Authoritarian Regimes (Oxford:
Hart, 2019).
27 Hans Kelsen, Introduction to the Problems of Legal Theory, Bonnie Litschewski
Paulson and Stanley Paulson transl. (Oxford: Oxford University Press, 1992
[1934]).
28 Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on
the Limits of Constitutional Law (Cambridge: Cambridge University Press, 2015).
 ‘Through a glass, darkly’ 39

sequence that starts with the fall of the Austro-Hungarian Empire and the
reconstruction of state sovereignty in both Western and Central European
polities. The Kelsenian affirmation of law as a system of norms, and of the
pure theory as a way of describing their relation from a standpoint that is
value-free and ‘clean’ from moral, sociological or historical taint,29 appears
thus as a theoretical attempt at preserving the status of legality outside the
interplay of historical forces and political struggles. The peculiar explanation
of the interplay between validity and efficacy of the Grundnorm30 within the
context of revolution is indicative of not only the limits of such a project but
also a specific regime of historicity that marks legal thought. To put it simply,
in a case of a revolution – and Central Europe had witnessed a few in the
wake of the Great War – the Grundnorm has to entertain at least a certain
relation to factual reality.31 As Kelsen writes,

the validity of a legal system governing the behaviour of particular

human beings depends in a certain way, then, on the fact that their real
behaviour corresponds to the legal system – depends in a certain way …
on the efficacy of the system.32

Put otherwise, in order to be valid, the law has to be effective. It is precisely

this scarcely explained relation between efficacy and validity that is both the
Achille’s heel in the liberal concept of law and an important indicator of the
common epistemological assumptions that have connected and informed
opposing camps within the analysis of legality. Carl Schmitt’s insistence on
the importance of the sovereign decision within the pages of Political Theol-
ogy,33 following his analysis developed in both Dictatorship34 and the Value
of the State and the Signification of the Individual,35 is part of an episteme that
had structured the basic frames of the legal mind in a time of crisis. Schmitt’s
insistence on the connection between the exercise of sovereign power and the
exception36 and the distinction between normalcy and disorder37 is not a
mere affirmation of the primacy of politics or of the political over the law.
Read within the intellectual trajectory of his core concepts – state, sovereignty
and the law – the state of exception is the space that opens the affirmation of

29 Kelsen, Introduction, 4–7.

30 Ibid., 58.
31 Ibid., 59.
32 Ibid., 60.
33 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty,
George Schwab transl. London, MIT Press, 1985 [1922]).
34 Carl Schmitt, Dictatorship, Michael Hoelzl and Graham Ward transl. (Cam-
bridge, Polity, 2014 [1921]).
35 Carl Schmitt, La valeur de l’Etat et la signification de l’individu, Sandrine Baume
transl. (Geneva: Librairie Droz, 2003 [1914]).
36 Schmitt, Political Theology, 5.
37 Ibid., 13.
40 Cosmin Cercel

the sovereign body through the operation of the law: ‘The exception reveals
most clearly the essence of state’s authority. The decision parts here from the
legal norm and (…) authority proves that to produce law it need not be based
on law’.38
As such, the apparent liminal character of the exception and of excep-
tional measures within the constitutional body of rules39 is brought to the
fore as the authentic site of sovereign power – that is, indissociably con-
nected to the law and state.40 Let us recall here the medial place of the state
within Schmitt’s initial writings – as the institution able to connect the ideal
realm of normativity to the moving social reality. Accordingly, the state is ‘a
formation within the legal sphere whose meaning nests exclusively in the
task of realizing the law’.41 In so far as the sovereign is the one who decides
over the exception, the sovereign is also the one who decides on the nor-
mality, insofar as ‘for a legal order to make sense, a normal situation must
exist and he is sovereign who decides whether this normal situation actually
exists’.42 The exception is thus the operation that is able to sustain the
normal ordering of society, as ‘the state suspends the law in the exception on
the basis of its right to self-preservation’.43
There should be no uncertainty with regard to the common intellectual
imaginary shared by both Schmitt and Kelsen, which goes beyond their per-
sonal socialisation within the German-language world of legal theory. Refer-
ences to Kelsen are not only a constant presence within the writings of the
Crownjurist but the neo-Kantian sources supporting an understanding of the
law as a normative category – that is, as a matter of form – are the back-
ground against which both the idea of the state as mediation44 and later on
the state of exception as the point of reference of sovereignty are built. As
Schmitt writes, echoing Kelsen’s unresolved nexus between validity and effi-
cacy: ‘there exists no norm that is applicable to chaos’.45
According to Schmitt, the legal form is the background and the map that
enables one to grasp the remnants of authentic sovereignty under the histor-
ical veils raised by the liberal misadventure. One should note at this point not
only the political and theological implications of Schmitt’s writings in the
early years of the interwar period but also their relation to the legal historical
thread followed within the pages of the Dictatorship. Indeed, it is useful to
emphasise how much the conceptualisation of the ‘exception’ owes not only
to a criticism of the liberal categories of legality but also to a historical thesis

38 Ibid.
39 Ibid., 5.
40 Ibid.
41 Schmitt, La valeur de l’Etat, 100.
42 Schmitt, Political Theology, 13.
43 Ibid., 12.
44 Schmitt, La valeur de l’Etat, 119.
45 Schmitt, Political Theology, 13.
 ‘Through a glass, darkly’ 41

of the debasement of the true meaning of sovereignty under the conditions of

the rise of liberalism. That is because, according to Schmitt, what created the
unity of the state was the monarchical absolutism of the 17th and 18th cen-
turies.46 Dictatorship, not unlike the state of exception, was both the trace of
this historical thread – the remnant within the texture of the modern state –
and its ultimate defence against the perceived dissolution grown in the sha-
dows of liberal neutralisation.47 The operation of the exception is thus the
answer to both a political and a jurisprudential conundrum. As Schmitt
writes, ‘dictatorship is a problem of concrete reality without ceasing to be a
legal problem’.48 Dictatorship is thus the locus of sovereignty, as it is the
nexus between Schmitt’s theory and the historical context of the early inter-
war period. To be sure, this defence of sovereignty is written in the echo of the
German revolution49 and the effective state of civil war that had engulfed the
transition from the Empire to the Weimar Republic.50 Let us note at this
stage the similar and connected historical thread that unites both Kelsen’s and
Schmitt’s respective contexts, to which they offer ostensibly different answers.

Deposing the legal form

But not only the Great War and the exceptional civil war context determines
historically the content and form of this intellectual debate. Another source –
even if less discussed in relation to the either the pure theory or the state of
exception, is the 1917 revolution and the emergence of the first proletarian
state, itself contending with the consequences of the war. It is thus at the
antipodes of Schmitt and Kelsen that a third and a fourth possible answer to
the question of the relation between law, politics and social reality are con-
structed. Sharing conceptual and intellectual baggage by writing from within
the margins of the post-Kantian tradition – not unlike Kelsen and Schmitt –
and flirting more with Marxism than either of them, Walter Benjamin seeks
neither to ground legality in an ahistorical realm nor to save sovereignty from
within the disapplying forces of the revolution.51 Rather, his project is to
secure the purity of revolution and violence from the taints of both law and
sovereignty. The implications of this stand lie within the realms of political

46 Schmitt, Dictatorship, 53–67; Schmitt, Political Theology, 47–49.

47 Schmitt, Political Theology, 37–39.
48 Schmitt, Dictatorship, 118.
49 Gopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt
(London: Verso, 2000), 28–47; Pierre Broué, The German Revolution, John
Archer transl. (Leiden: Brill, 2005 [1971]), 89–260.
50 Enzo Traverso, Fire and Blood: The European Civil War 1914–1945, David
Fernbach transl. (London: Verso, 2017 [2007]), 48.
51 Walter Benjamin, ‘Critique of Violence’, in Marcus Bullock and Michael W.
Jennings (eds), Walter Benjamin: Selected Writings. Vol. 1, 1913–1926 (Cam-
bridge: Harvard University Press, 1996 [1921]), 236–252.
42 Cosmin Cercel

theory, jurisprudence and theology – as indeed the heterodox Marxism he is

defending finds its sources within both a reconstruction of historical materi-
alism and a re-reading of Jewish messianism.52 Accordingly, Benjamin’s jur-
isprudential stand takes the particular form of a legal scepticism – in so far as
law is conceived as ‘a prerogative of the kings and nobles, in short of the
mighty; and that, mutatis mutandis, will remain so as long as it exists’.53
While this position finds its roots in a Marxist tradition unearthing the
ways in which the legal form is obscuring the reality of oppression, exploita-
tion and domination, it also goes beyond it by signalling a structural – and
seemingly ahistorical – connivance between the legal form and violence, and
more specifically ‘mythical’ violence – that is, the violence built on the powers
of myth and which necessarily ‘demands sacrifice’.54 In Benjamin’s words, ‘[m]
ythical violence is bloody power over mere life for its own sake’.55 Insofar as
‘lawmaking is power making and, to that extent, an immediate manifestation
of violence’,56 law finds itself on the side of mythical violence,57 a violence
that imposes the law and existing order of things, and which can be deposed
only by divine violence. As the ‘the highest manifestation of violence unal-
loyed by man’,58 divine violence is the one able to overcome the continual
restatement of the law.
Evgeny’s Pashukanis’ defence of a dissolution of the legal form and system
as the conclusion of the revolutionary transformation59 echoes this legal
scepticism. For him, the site of the legal relationship – a form which operates
like commodity does in the realm of economy60 – is to be found in the realm
of private law, constructing from within the grammar and the ideological
framework of bourgeois legality. As he writes, ‘[T]he subject as the bearer and
addressee of all possible demands, and the chain of subjects bound by
demands addressed to one another, is the basic juridic fabric corresponding to
the economic fabric’.61 Constitutional law and public law, conceived as areas
of mere ideology that function according to the principle of expediency,62 are

52 Jacob Taubes, ‘Walter Benjamin: A Modern Marcionite? Scholem’s Benjamin

Interpretation Reexamined’ in Colby Dickinson and Stéphane Symons (eds)
Walter Benjamin and Theology (New York: Fordham University Press, 2016),
164–178.
53 Benjamin, ‘Critique of Violence’, 249.
54 Ibid., 250.
55 Ibid.
56 Ibid., 249.
57 Ibid., 250.
58 Ibid., 252.
59 Evgeny Bronislavovich Pashukanis, ‘The General Theory of Law and Marxism’,
in Piers Beirne and Robert Sharlet (eds), Pashukanis: Selected Writings on Law
and Marxism, Peter B. Maggs transl., (London: Academic Press, 1980), 37–131.
60 Ibid., 69.
61 Ibid., 71.
62 Ibid., 112.
 ‘Through a glass, darkly’ 43

not the place where legal relationships are produced, but the place where the
state is simply imagined as a legal superstructure.63 Accordingly, ‘[t]he state
apparatus actually realizes itself as an impersonal “general will”, as “the
authority of law” etc., to the extent that society appears as a market’.64 What
is indeed able to produce a significant change within the operation of the law,
is a radical transformation at the level of economy, and of the concepts sup-
porting the view of a society as a market and the individual as a legal person.
It is only such a reshuffling that would be able to finally depose the law and
bring about its withering away, thus fulfilling the dictatorship of the proletar-
iat: ‘Liberation (…) would only occur when the general withering away of the
legal superstructure begins’.65
What is important in these theoretical positions developed on the left side
of the political spectrum and within the path opened by the Russian Revo-
lution, is the insistence on law’s ability to taint the content of a revolu-
tionary transformation – that is, the resilience of the legal form as well as its
necessary relation to other spheres, such as economy and politics. In other
words, a mere ‘takeover’ of the sites of power is never enough in changing
the law, nor is it the final point of its deposition. More importantly, the legal
form emerges as being supported by a wider array of relations – moulded by
history and economy – that keep it articulated and alive within the structure
of the polities, regardless of, if not in opposition to, the figure or the body of
the sovereign.66
These theoretical interventions that provided the substance of the jur-
isprudential debates of the interwar period did not disappear either with
Hitler’s rise to power in Germany or with Stalin’s rise to the helm of the
Communist Party of the Soviet Union. To begin with, Schmitt’s state of
exception grounding the sovereign decision was redeemed by historical
experience, both in the eventual application of Article 48 and in the effective
suspension of the Weimar Constitution. His contribution to the legal drama
of the Reichstag fire as well as his theoretical insights from Political Theology
found echo in his damning The Führer Protects the Law.67 Yet this final con-
tribution to the theory of exception and authoritarianism was perhaps part of
a wider trend of exceptional measures and emergencies engulfing the world at
the time.68 For its part, Benjamin’s search for a revolutionary violence able to
depose the law would remain only a sublime objective – neither the reality of

63 Ibid., 73.
64 Ibid., 95.
65 Ibid., 125.
66 Cercel, Towards a Jurisprudence of State Communism, 96.
67 Carl Schmitt, ‘Der Führer schützt das Recht,’ Deutsche Juristen-Zeitung 39, 1
August 1934, 945–950.
68 For the reception of Carl Schmitt’s work in wartime Romania, see Marius Ciş-
migiu, Regimul constituţional român: constituţia de criză şi ordinea politică
(Bucharest: Curentul, 1943).
44 Cosmin Cercel

Soviet Russia nor the revolution and Civil War in Spain would be able to
break the deadlock between law, revolution and violence. On the contrary, the
fascist onslaught with its long thread of security measures, as well as the
Stalinist betrayal, indefinitely postponed both divine justice and the withering
away of law and state. Pashukanis’ death in the purges, as well as the purge of
his work from the theoretical legal canon,69 left no room for a different rela-
tion between law and sovereign power than the one already present in the
structure of imperial states. Last but not least, Kelsen’s Pure Theory might
not have had a great career in the final interwar years, yet it thoroughly
influenced the political theoretical stand of some of the postwar debates,
before becoming the default theoretical position for constitutional lawyers on
the continent. While indeed the conundrum between validity and efficacy
might not have been answered from the standpoint of a pure theory, Kelsen’s
embrace of a liberal democratic stand70 and his advocacy for a connection
between legal form and democracy continues to influence the understanding
of law and politics to this day, while his formalism found quarters in the work
of practical lawyers from both sides of the Iron Curtain.

The paradigm of exception

At the time when Agamben published his first rendition of the state of
exception, within the pages of Homo Sacer,71 the concept of exception seemed
to have disappeared from the ambit of both political theory and, especially,
legal studies. Either relegated to a practice of somewhat antiquarian interest –
regardless of the uses of exceptional measures from Northern Ireland to
Ceauşescu’s Romania – or to a confusion with the derogatory meaning of
dictatorship, the coalescence between law and state violence was effaced
under the new democratic pledges of the law understood as a neutral medium
founded on reason. The end of communism enveloped the violent history of
law within a ‘white mythology’72 as if it ‘has effaced in itself that fabulous
scene which brought it into being, and yet remains, active’,73 This eschatolo-
gical illusion of a now radically different form of politics from the past had
found its opposition in the vague resuscitation of the Schmittian and Benja-
minian tropes that served the critical project of deconstruction.74 With it,
however, the authority of the law was still left within the realm of mystical

69 Piers Beirne and Robert Sharlet, ‘Editors’ introduction’, in Beirne and Sharlet
(eds), Pashukanis 1.
70 See, for instance, Hans Kelsen, ‘Foundations of Democracy’, (1955) 66 Ethics 1.
71 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Daniel Heller-
Roazen transl. (Stanford: Stanford University Press, 1998 [1995]).
72 Jacques Derrida, Marges de la philosophie (Paris: Minuit, 1972), 254.
73 Ibid.
74 Jacques Derrida, Force de loi (Paris: Galilée, 1994).
 ‘Through a glass, darkly’ 45

foundations,75 which prevented a full-fledged critique that would take into

account what is ‘“rotten” in the law’.76
For Agamben the law takes an important place in his project of revisiting
the nexus that ties bare life and politics. On the path opened by Foucault’s
insights into the historical rise of biopolitics and Arendt’s reading of the dis-
location of the public sphere by the irruption of biological life within the
political realm,77 Agamben sought to move beyond the metaphysical struc-
ture that commands such an articulation between the otherwise distinct
spheres of life and politics.78 On this path, the law, understood as essentially
an operation of exception,79 is the structure able to connect the life devoid of
attribute to the machinery of politics:

The ‘sovereign’ structure of the law, its peculiar and original ‘force’, has
the form of a state of exception in which fact and law are indistinguish-
able (…). Life, which is thus obliged, can in the last instance be impli-
cated in the sphere of the law only through the presupposition of its
inclusive exclusion, only in an exceptio.80

By exploring the mysterious figure of the homo sacer, what the Agambenian
project aims at is to identify the secret quilting point between the juridico-poli-
tical institutional model of analysing sovereign power and the biopolitical one,
from which the normativity of the law has been evacuated. The homo sacer, an
ancient institution of Roman law defining those found guilty of crimes and
whose life could have been lawfully taken away, without being sacrificial, exposes
a long series of paradoxes inherent in the structure of the Roman law.81 It unveils
the nexus between crime, punishment and sovereign power as well as the obscure
connection between legal thought and the sphere of religion.82 The sacrality of
the homo sacer marks of a zone of indistinction between sacred and profane,
between politics, law and religion representing an originary political structure
through which sovereign power – in its dual religious and profane guises –
invests the individual body of the subjects. As Agamben writes, ‘[l]ife that cannot
be sacrificed and yet may be killed is sacred life’.83
This paradox is indeed structural, and it reveals law’s core feature – that
of being a system of signification – a langue.84 In its application, the law is

75 Ibid., 84–98.
76 Ibid., 95.
77 Agamben, Homo Sacer, 10.
78 Ibid., 11.
79 Ibid., 19.
80 Ibid., 22.
81 Ibid., 47.
82 Ibid., 47–51.
83 Ibid., 52.
84 Ibid., 22.
46 Cosmin Cercel

always a form of exception, just as the word presupposes a suspension of

language.85 Moreover, each instantiation of the law is a form of excep-
tion. Within this structure of the state of exception, literally of taking-
law-from-the-outside, lies the paradox of the necessary presupposition of
an outside-of-the-law: ‘[l]anguage is the sovereign who, in a permanent
state of exception, declares that there is nothing outside language and
that language is always beyond itself ’.86 Thus, law, as language, pre-
supposes the non-linguistic, the unarticulated, and perhaps the violence
of the ‘real’, in order to institute itself as a part of the symbolic order. By
this presupposition and inclusion of the excess, the distinction between
institution and destitution of the law is supressed. Accordingly, within the
exception there is no meaningful distinction to be made between law-
lessness and legality.
The paradoxes of sovereignty seized within this context are initially
obscured by the philosophical thread that is at the core of this stage of the
Agambenian project. Neither constitutional theory nor legal theory capture
Agamben’s writing within the pages of the first rendition of Homo Sacer, but
the status of the human subject as subject of rights that are emerging within
the conditions of the exception and their undoing operated by the shadowy
presence of biopolitics.87 In this sense, the analysis of the operation of the
exception is itself suspended, and the core of his inquiry is taken on by
the relation between life and sovereign power. Perhaps unsurprisingly, as the
Heideggerian roots of this project would suggest, Agamben is primarily
interested in seizing the philosophical origins and the intellectual traces left
within the unfolding of the history of thought by the nexus between unarti-
culated life and sovereign power.
The exception, as a part of the operation of the law is thus only one of the
forms of this encounter – important as it might be – but not a paradigmatic
one for the history of the Western political subject. Rather, what he proposes
as a paradigm is the camp, as an unmediated locus of production of a life that
is immediately and directly inscribed in the production of sovereignty.88 In his
words, ‘the camp – as the pure, absolute, and impassable biopolitical space
(insofar as it is founded solely on the state of exception) – will appear as the
hidden paradigm of the political space of modernity’.89
From this point on, law and exception, as forms of opening and founding
of the camp, are sidelined by an unrelenting engagement with the breach and
undoing of rights under the encroachment of biopolitics on political
thought.90 Of course, references to either the canonical legal texts enacting

85 Ibid., 20.
86 Ibid.
87 Ibid., 68.
88 Ibid., 72–73.
89 Ibid.
90 Ibid., 75–79.
 ‘Through a glass, darkly’ 47

human rights91 or to constitutional arrangements and theory continue to sign

the argument, yet the law is subsumed to the waves of biopolitics, and it has
become a zone of indistinction between life, nature, history and politics to the
point of being rendered inoperative in the functioning of totalitarian states –
for Agamben, ‘the dimension in which the extermination took place is neither
religion nor law, but biopolitics’.92
Almost ten years later, State of Exception93 revisits the structure of this legal
paradox in an attempt to bring to the fore the normative and structural
operation of the law that is indissolubly linked to the articulation between zoé
and bíos,94 insofar as the state of exception has an ‘immediate biopolitical sig-
nificance’.95 At this time, Agamben returns to the historical and jurisprudential
sources of the conundrum entailed by law’s suspension. If Carl Schmitt plays a
central role in approaching the concept of exception in its politico-legal guise,
Walter Benjamin is also invoked, in order to reconstruct the full thrust of the
interwar debate.96 Kelsen – implicitly97 – and Pashukanis98 also make a mar-
ginal appearance within the analysis of the edges of the exception in marking
the limits of understanding the law as pure normativity and the status of law
after its revolutionary deposition. From this point of view, the second instal-
ment of Homo Sacer is supposed to be a form of denouement, not only by
tying together important legal theoretical questions that have made the sub-
stance of the interwar legal theory but also by sketching a philosophical stand
able to overcome the structural entanglement between law and violence. How-
ever, this denouement is at best postponed, if not effectively sapped from
within, by a gesture that forgets the materiality of the exception and by an
ahistorical position that forces one to disregard law’s history of violence.
The starting point within this instance is the present unfolding exception
that was already legible for Agamben and other astute observers on the trail
left by the war on terror.99 The parallel with the interwar period, although not
marked at that time by the particular ideological inflections that sign our
contemporary unfolding of the exception, was present at the level of the
operation of the law: the constitutional protections offered by liberal democ-
racies were effectively suspended when faced with the excess of anti-legal
violence.100 It is this thread that prompts and marks the style and substance

91 Ibid., 73–78.
92 Ibid., 68.
93 Giorgio Agamben, State of Exception, Kevin Attell transl. (Chicago: University
of Chicago Press, 2005 [2003]).
94 Ibid., 4.
95 Ibid.
96 Ibid., 32–39; 52–64.
97 Ibid., 33–34.
98 Ibid., 63.
99 Ibid., 3–4.
100 Ibid., 4.
48 Cosmin Cercel

of Agamben’s investigation. By means of a historical excursus going back to

the late 18th century,101 we are able to seize the proliferation of the exception
during the interwar years as well as the secret nexus connecting it to the
debasement of the law.
Yet, this excursus takes place from within the postulation of the existence
of the exception at the level of material – that is formless, unarticulated –
constitution of the various legal systems of the Western tradition.102 This
existence of the exception – that becomes readable at the end of the Great
War – is curiously no longer dependent on the exception’s formalisation
within the legal apparatus. Accordingly, the exception is somewhat autono-
mous of the process of legal operation as ‘the history of the institution, at
least since World War One, shows that its development is independent of its
constitutional or legislative formalisation’.103 The uncertain place occupied
by the exception within the law cannot be disputed, and Agamben takes his
time to explain the extent to which the problem of the exception cannot be
reduced to a matter of necessity, and cannot be simply be ascribed to a strict
topographical distinction as an outside of the law.104 The exception is
necessarily nested within the law. However, the slight autonomy of the
exception with regards to the form of law and its presence at the level of
functions enables Agamben to move a step further beyond what historians
would generally credit and describe as modernity.105 The exception is thus
connected to other figures of the law, and legal institutions – such as
Decretum Gratiani106 and the practice of justitium.107 At the same time, the
investigation slips through the railings of the law and history and moves
towards the interstices of theology and anthropology, in a zone of indis-
tinction where the pre-juridical encounters modernity.108 Looked from the
standpoint of its operation, the exception, in its materiality, effectively dis-
closes law’s finitude that renders its force. In other words, ‘[i]t is as if the
suspension of law freed a force or a mystical element, a sort of legal mana
(…), that both the ruling power and its adversaries, the constituted power as
well as the constituent power, seek to appropriate’.109
Law, understood as exception, is always already haunted by its incon-
sistency drawing itself towards its uncertain margins that seem not to have
any discernible historical bounds. Thus, justitium, the suspension of the law

101 Ibid., 5–6; 11–22.

102 Ibid., 10.
103 Ibid. [emphasis added].
104 Ibid., 23–25.
105 Mark Mazower, ‘Foucault, Agamben: Theory and the Nazis’, (2008) 2 Boundary
23, 27.
106 Agamben, State of Exception, 24–25.
107 Ibid., 41–49.
108 Ibid., 65–69.
109 Ibid., 51.
 ‘Through a glass, darkly’ 49

declared ‘usually’110 as a reaction to internal strife (tumultus), is ‘the arche-

type of the modern state of exception’.111 As a standstill of the law, it
emphasises not only the hold that the non-juridical has over legality but also
the inner void at the core of the exception.112 The isolation of such a void is
the unlikely quilting point able to tie the knots between Schmitt’s political
theology and Benjamin’s pure violence. While Schmitt aims to inscribe vio-
lence within the function of the law113 – a task that is perhaps not difficult as
it is only a matter of recuperating and rendering visible law’s historical and
mythical foundations – Benjamin aims at keeping revolutionary violence out
of the reach of the law. As a violence that ‘is lethal without spilling blood’,114
divine violence is the one able to overcome the law. While this reading is
correct, and one can agree with Agamben’s diagnosis on the terms of the
debate,115 less attention seems to be paid by him to the reasons for which
Benjamin’s divine violence should be freed from the shackles of legality. It is,
of course, the question of mediation of violence, but also the very history of
law that taints its becoming.116 In this last instance we can most likely find
within Benjamin’s project the traces of a historical materialism that even
within the midst of the anomie is able to conceive history as a history of class
struggle. Perhaps, at the end of the day, the gigantomachy is not around a
void as Agamben would have it, but around a very specific meaning of the
void at the core of the exception: on one side is the excess of power, while on
the other the very destitution of power. While one could speculate over the
‘metaphysical stakes’117 of this debate, the historical and intellectual horizon
of this debate should not be forgotten. In other words, one should not simply
conflate exception and revolution under the neutralising gaze of an ‘onto-
theo-logical strategy aimed at capturing pure being into the meshes of the
logos’,118 insofar as the ‘white eschatology’ of the exception is still unable to
cover the ideological dividing line traversing these theoretical stands.
Within the exception, what becomes apparent is not only that secret link
that connects legality to its opposite lawlessness and anarchy but also the lack
of grounding of any attempt at instituting legality. Through its operation, the
exception also marks a threshold in which the possibility of a law that is not
applied but only studied119 can be grasped. Such a position of the law, argu-
ably an answer to the question tormenting both early Christians and Marxists

110 Ibid., 41.

111 Ibid.
112 Ibid., 51.
113 Ibid., 54.
114 Benjamin, ‘Critique of Violence’, 250.
115 Agamben, State of Exception, 59.
116 Benjamin, ‘Critique of Violence’, 249.
117 Agamben, State of Exception, 59.
118 Ibid., 60.
119 Ibid., 64.
50 Cosmin Cercel

as to the status of law after its deposition,120 is that of an inoperative leg-

ality.121 Through a play of knowledge, what is brought to the fore as a form
of redeeming the legal form and of overcoming its conundrum, is presumably
a law that is valid without being efficient, the pure normativity that Kelsen
was able to identify beyond the paradox of efficacy122: ‘One day humanity
will play with law just as children play with disused objects, not in order to
restore them to their canonical use but free them from it for good.’123
Such a messianic undertone supporting the possibility of overcoming the
exception and liberating politics from the forces of the law124 – that is, of its
historical ties with sovereign power and violence – is not only obscure in
terms of performance but also unrelentingly optimistic. The study of law as a
disused object able to be freed from its historical ties is neither a new practice
nor an entirely pure one. If one was to be polemical about the nature of this
play, we would perhaps ask whether it is the casuistry and the purely formal
analysis of law in its study within our schools of law from times immemorial
(that go back precisely to the Roman law tradition) to this very day is not
what generates the exception? Put another way, isn’t it the lawyer’s very
inability to think law historically that produces the exception?

The frontispiece of the exception

Something can and should be saved from this project of thinking the excep-
tion as a core feature of modern legality. As such, State of Exception, in its
very failure or suspension of finding a denouement to the legal conundrum of
validity and efficacy – and to the intellectual thread that had become preg-
nantly visible within the interwar period – is able to rightly identify the topoi
of the debate. That is to say, together with Agamben, that the law as such is in
no way safe from the corosive forces of history, and a state of law125 – or a
rule of law – is no longer able to be secured at this historical juncture, if it
ever was. Yet, what is left outside the scope of this inquiry is the material
history of the exception, as well as the historical inscription of the intellectual
genealogy scrutinising its unfolding. That is because, just like the law, the
exception does not take place in a vacuum, but it is part of a history that is
not easily reducible to an interplay between sovereign power, normative
structures and zoe. Such a history includes and cannot be disentangled from
the material history of class struggle in which the legal state of exception
occurs. If the exception, as the inner core of the theory of the state, is indeed
‘the reef on which the revolutions of the twentieth century have been

120 Ibid., 63.

121 Ibid., 64.
122 Ibid. 64; 87.
123 Ibid., 64.
124 Ibid., 88.
125 Ibid., 87.
 ‘Through a glass, darkly’ 51

shipwrecked’,126 and the theory of the state and law was the blind spot of the
Marxist analysis, there is yet the very starting point in Agamben’s project
which has a historical grounding. In other words, it is not by chance that we
witness a proliferation of exception and exceptional measures in the wake of
the October revolution and the end of the Great War. This can and should
probably be read within the context of another Agambenian core concept –
that of stasis and civil war127 – but it does not necessarily warrant such a
conflation between revolution and exception as the paradigm developed by
the Italian philosopher would.
While indeed the exception unveils a structural tension within – of leg-
ality, that is – and it was historically theorised, it also operates as a par-
ticular mechanism within the sphere of politics by doing away with
constitutional protections. The sovereign power, unfettered in the excep-
tion, does more often than not seem tainted by a specific ideological
colour and does have a specific historical and memorial weight. While
indeed the exception unveils a limit of the law – and is structurally nested
within the operation of modern legality – it is hardly ahistorical. By
taking for granted the very premise of the possibility of articulation of law
as normativity – a necessary step needed for the functioning of the
exception – the Agambenian paradigm projects law’s inability to ground
itself at the level of human history. Such a step, on the path opened by
Schmitt, rightly points to the law’s limits, but it does so only by keeping
alive the necessarily formal dimension of law as a pure potency. Accord-
ingly, it displaces the Schmittian criticism of the neo-Kantian presupposi-
tions that gave Kelsen’s theory its standing, but it expands them to the
level of all Western legal history. To be sure, this is a necessary step – even
from within a post-Kantian position – but it needs to be supplanted by a
deeper historical analysis that goes beyond the construction of a paradigm.
Accordingly, the state of exception in Agamben’s rendition has the func-
tion of recalling, if not restating the obvious. As Georg Lukács noted in
his criticism of Schmitt, any legal problem ‘depends whether the compe-
tent legal authority decided it thus or otherwise; but the character, com-
position, etc., of that authority are pre-determined by politico-social and
ultimately economic factors’.128 Such a critique is not to be dismissed as a
mere restatement of crude econocentrism, but ultimately raises the ques-
tion of the outside-of-the-law that finds a place and is rendered visible
within the structure of the exception.

126 Agamben, Homo Sacer, 14.

127 Giorgio Agamben, Stasis: Civil War as a Political Pradigm, Nicholas Heron
transl. (Edinburgh: Edinburgh University Press, 2015), 1–18.
128 Georg Lukács, The Destruction of Reason, Peter Palmer transl. (Atlantic Heights:
Humanities Press, 1981 [1962]), 654.
52 Cosmin Cercel

In his analysis of Hobbes’ Leviathan, Giorgio Agamben focuses on the

peculiarities of the iconography presented on the frontispiece of this book.
His careful analysis of an otherwise over-read and mostly misinterpreted
representation brings Hobbes’ argument under a new light as a profanation, a
work able to reveal the secret of political power by a détournement of theo-
logical topoi.129 Irrespective of the substance of the argument, Agamben
offers a number of important insights into his reading strategy that are useful
for our own purpose of grasping the nature of the exception. Accordingly, the
frontispiece is ‘a door or a threshold that would lead, even in a veiled manner,
into the problematic nucleus of the book’.130 Such a strategy of disclosing
through concealing, specific to the esoteric tradition, appeals to a reader – ‘as
any reader worthy of the name should be – capable of not allowing the par-
ticular details and modalities of exposition to escape them’.131 Yet, the eso-
teric knowledge and its mode of dissemination are somewhat akin to riddles,
mysticism and philosophy, and this is perhaps the heuristic status of Agam-
ben’s paradigm of exception. As he writes,

every esoteric intention inevitably contains a contradiction, which marks

a point of distinction with respect to mysticism and philosophy: if the
concealment is something serious and is not a joke, then it must be
experienced as such and the subject cannot profess to know what he or
she can only oblivious to; if, conversely, it is a joke, in this case the eso-
tericism is less justified.132

Read through such lenses, the state of exception is perhaps the esoteric veil that
covers the status of legality within modernity. As such, it is not only able to
capture the specific tension between validity and efficacy of the legal norm but
also opens the path for a whole series of intellectual attempts at grounding the
law within the unfolding of a time in which ‘all that is solid melts into air’.133
Through the frontispiece of the exception, as painted by Agamben in his gen-
ealogy of the concept, we are able to grasp as if through a glass, darkly, the
operation of the exception as well as its intellectual archè.
However, as is the case with any frontispiece, it is followed by a work that is
yet to be written. This is a work that would take the history of law’s self-erasure
seriously on several levels. First, at a jurisprudential level, by placing at its core
the formal status of legality, that of a structure that is always at wrest with itself
and which, as any symbolic structure, is haunted by a foundational erasure and
thus is never complete. From this point of view, Jacques Lacan’s concept of the

129 Agamben, Stasis, 48–49.

130 Ibid., 21.
131 Ibid., 22.
132 Ibid.
133 Karl Marx and Friedrich Engels, Manifesto of the Communist Party (New York:
International Publishers, 2007 [1847–1848]), 12.
 ‘Through a glass, darkly’ 53

Real in its relation to the Symbolic offers an edifying insight into this operation:
in its initial construction, the Symbolic, as an order of signification that produces
meaning and reality, is carved out through a constant negation of the primeval
matter of the psyche which is the Real.134 This process is not dissimilar to the
ways in which law is historically separating itself from politics, sovereign power
and religion. Yet, in Seminar XI, Lacan veers from a description of the Real as a
primeval traumatic encounter that is not mediated by the Symbolic towards a
notion of the Real as by-product of the very institution of the Symbolic order.135
The analogy with the state of exception is striking: from within the stand-
point of the law, the exception stands for the remainder of the unarticulated
Real, of an outside-of-the-law that cannot be otherwise captured than by
law’s self-erasure. Positing the exception at the core of law’s formal under-
standing is crucial in order to grasp is never-completed, always ungrounded
status. First, then, this jurisprudential stand necessarily calls for an under-
standing of the law as a historical category, insofar as what stays outside of
the articulation of the law is the remainder of historical struggles in which
social forces collide in giving shape of the sphere of legality.
Second, as a matter of historiography, the state of exception forces us to
inscribe legality in a broader timeframe and to refine our uses of concepts that
historians and political theorists borrow from the arsenal of jurisprudence.
Questions such as legitimacy and legality thus become particularly complex and
demand a due analysis with a view to clarify both the agency and the limits of
historical subjects. For instance, if one is to take the paradigm of the exception
seriously, important questions related to the lawless character of authoritarian
regimes do indeed need to be evaluated, just as the very symbolic line between
liberal legality and its authoritarian other needs to be revisited.
But this refinement does not regard only our legal past. On the contrary, such
important questions related to law’s structural inability of grounding itself as a
system of signification does call for a need to revisit our present as a part of a
historical becoming. In simple words, the present effective erasure of legality –
from the proliferation of emergency measures to the minute rewriting of legality
and constitutional practices – should be understood as what it is: a moment in a
historical unfolding of the exception. It is not an attack on liberal legality as
such, but rather an unearthing of its inner limits and of the authoritarian
potential nested at its core. Documenting the history of this process through
which the law positively undermines itself is the work that stays beyond the eso-
teric veil of the exception.

134 Bruce Fink, The Lacanian Subject: Between Language and Jouissance (Princeton,
NJ: Princeton University Press, 1995), 24.
135 Charles Shepherdson, Lacan and the Limits of Language (New York: Fordham
University Press, 2008), 27.
Chapter 3

The other side of the exception

Sovereignty, modernity and international
law
Przemysław Tacik

Introduction
Few philosophical books are remembered by the date of their first pub-
lication; even fewer jurisprudential works earn this honour. Giorgio
Agamben’s Homo Sacer – the founding volume of the project published
in 19951 – triumphed in both categories. It belongs to a highly exclusive
group of texts which do not provide a philosophical reformulation of
legal studies, but rather take both philosophy and jurisprudence to a new
common field in which the legal and the philosophical become indis-
tinguishable. The revolution inaugurated by Agamben’s work – although
in many respects aptly disguised by references to Carl Schmitt, Walter
Benjamin and Hannah Arendt – develops in a philosophical rather than
jurisprudential pace. Its real impact will have become assessable after
decades, not years. In this sense Agamben’s stunning popularity among
legal scholars – sometimes, admittedly, leading to banal application of his
concepts – is not yet representative for the historical meaning of his
thinking. The Agambenian breakthrough requires further development:
the philosopher himself recognises it in his attempts to complete the still
open-ended Homo sacer project.2 Sometimes, however, the conceptual
blow is too powerful to be exhaustively contained in one series and

1 Giorgio Agamben, Homo sacer, Daniel Heller-Roazen transl. (Stanford, CA:

Stanford University Press, 1998) [original edition: Homo Sacer. Il potere sovrano
e la vita nuda (Homo sacer, I) (Segrate: Einaudi, 1995)].
2 Agamben, Homo sacer; Stato di Eccezione. Homo sacer II, 1 (Torino: Bollati
Boringhieri, 2003); Il regno e la gloria. Per una genealogia teologica dell’economia
e del governo. Homo sacer II, 2 (Torino: Bollati Boringhieri, 2009); Stasis. La
guerra civile come paradigma politico. Homo sacer II, 2 (Torino: Bollati Bor-
inghieri, 2015); Il sacramento del linguaggio. Archeologia del giuramento. Homo
sacer II, 3, (Roma-Bari: Laterza, 2008); Opus Dei. Archeologia dell’ufficio. Homo
sacer II, 5 (Torino: Bollati Boringhieri, 2012); Quel che resta di Auschwitz.
L’archivio e il testimone. Homo sacer. III (Torino: Bollati Boringhieri, 1998);
Altissima povertà. Regole monastiche e forma di vita. Homo sacer IV, 1 (Vicenza:
Neri Pozza, 2011); L’uso dei corpi. Homo sacer IV, 2 (Vicenza: Neri Pozza, 2014).
 The other side of the exception 55

demands long-term efforts to realise all its implications. In order to do

justice to the historical significance of Homo sacer it thus seems indis-
pensable to continue the path it traced with loyalty to its vocation, even
if occasionally against the grain of Agamben’s own remarks.
One of the areas in which Agamben’s project remains glaringly under-
developed is international law. There seem to be a few reasons for this.
First, Agamben openly concentrated on state power as well as its ema-
nations or theological/philosophical models. International law is stun-
ningly absent in this approach, as though all the paradoxes and tensions
inherent in the law were limited to the realm under sovereign power, not
the one which extends over it. However, this does not have to be the case,
given that the position of exception is linked to the essence of language
in which all law – including international law – is expressed. Second,
Agamben’s approach is used rather sparingly in the doctrine of interna-
tional law. The adaptation of state-centred reflection on the law, sover-
eignty and exception to this domain demands deeper reformulation of the
Homo sacer perspective and, as such, attracts few theorists. Third and
most important, the manifest lack of theoretisation of international law in
Agamben’s work is not just a result of the philosopher’s own preferences.
As I will attempt to argue, this lack might be read as a symptom which,
once revealed as such, exposes underdevelopments and questionable
assumptions in apparently unrelated areas of his œuvre. Posing questions
about international law touches upon Agamben’s views on historical
continuity and modern specificity. For these reasons, international law is
not just another area of legality to which the theory of sovereignty and
exception might be ‘applied’, but a field that challenges the theory itself
and demands its reconsideration. As soon as we leave the boundaries of
state-centred jurisprudence, not only will Agamben’s theory appear in a
different light, it might also contribute to better understanding of inter-
national law itself.
This chapter will be organised in the following manner. First, I will attempt
to find a category deeper than exception – conflation – that accounts for the
structural paradoxes of Agamben’s thought, such as the tension between
apparent temporal universality of his theory and its effective confinement to
modernity. Then I will use it in order to ask whether the Agambenian
account of historical continuity of sovereignty is justified. As it will appear,
the emergence of international law in early modernity constitutes a stumbling
block for this assumption. Taking into account the international law per-
spective on sovereignty, I will investigate the nature of modern sovereignty
with the aim of extrapolating Agamben’s thought. Finally, I will reinterpret
his understanding of camps in order to find a more in-depth outlook on
international law so that it might be confronted with the impact of Agamben’s
innovativeness.
56 Przemysław Tacik

Underneath the exception: conflation

In order to confront the thought-provoking absence of international law in
Agamben’s work, we need first to scrutinise the foundations of his intellec-
tual edifice in order to understand why it is so firmly riveted to the state-
centred and sub-sovereign vision of the law. Contrary to what might appear
at first sight, the answer is to be found not in one of his hallmark concepts,
the exception, but in its underlying philosophical category: conflation. Ubi-
quitous as it is in Agamben’s writings, it remains almost untouched by his
own reflection even though it gives the rhythm and provides a denouement
of this thinking.
For obvious reasons it is Agamben’s theory of exception – and its particular
application to the state of exception as a legal device – that attracts most
attention in jurisprudence. Focus on the state of exception allows legal scho-
lars to omit the philosophically explosive potential of Agamben’s work and
concentrate on his contribution to understanding one of the well-established
notions of constitutional law. Nonetheless, the concept of exception is much
broader and philosophically charged:

The exception is a kind of exclusion. What is excluded from the general

rule is an individual case. But the most proper characteristic of the
exception is that what is excluded in it is not, on account of being exclu-
ded, absolutely without relation to the rule. On the contrary, what is
excluded in the exception maintains itself in relation to the rule in the
form of the rule’s suspension. The rule applies to the exception in no
longer applying, in withdrawing from it. The state of exception is thus
not the chaos that precedes order but rather the situation that results
from its suspension. In this sense, the exception is truly, according to its
etymological root, taken outside (ex-capere), and not simply excluded.3

The exception is therefore a crossing between generality and individuality,

built not upon the model of proportionality and commensurability between
the two,4 but on their inherent discrepancy, which emerges in suspension of
the rule. In a sense, Agamben reasserts Wittgenstein’s rule paradox as inter-
preted by Saul Kripke5: there is, in fact, no simple determinative relation
between the rule and an individual case. The nature of this creation-through-
withdrawal and, in particular, the degree to which the ‘determinative agency’
is to be ascribed to the rule rather than to the other pole of this relation

3 Ibid., 17–18.
4 In this respect Agamben finds Kant to be ‘on a false track’. Agamben, State of
Exception (Homo sacer II, 1), Kevin Attell transl. (Chicago and London: Uni-
versity of Chicago Press, 2005), 39.
5 Saul A. Kripke, Wittgenstein on Rules and Private Language: An Elementary
Exposition (Cambridge, MA: Harvard University Press, 1982).
 The other side of the exception 57

remains unclear. Moreover, it seems to change over the course of Agamben’s

writings. The above-cited fragment puts stress on the rule creating the excep-
tion. However, quite quickly this imbalance is corrected and both the rule and
the case are given a secondary position to the exception itself, which simul-
taneously links and creates them:

The situation created in the exception has the peculiar characteristic that
it cannot be defined either as a situation of fact or as a situation of right,
but instead institutes a paradoxical threshold of indistinction between the
two [emphasis added]. It is not a fact, since it is only created through the
suspension of the rule. […] In this sense, the sovereign exception is the
fundamental localization (Ortung), which does not limit itself to distin-
guishing what is inside from what is outside but instead traces a threshold
(the state of exception) between the two, on the basis of which outside and
inside, the normal situation and chaos, enter into those complex topological
relations that make the validity of the juridical order possible [emphasis
added].6

The tension between the rule and the fact finds its resolution in a typical
Agambenian manoeuvre: no primacy is given to either poles of the opposi-
tion, but a third, more powerful category is introduced to defuse them. It is
not produced, but it has always been already there. Not accidentally,
Agamben theorises it as a kind of space that ‘precedes’ the elements which
enter it. Its boundaries are comparable to the event horizon in astrophysics.
Whatever two elements overstep them (‘crosses the threshold of indistinc-
tion’ in Agambenian parlance), they lose the very possibility of being dif-
ferentiated. Musing on what they truly are in this area is senseless –
ontology coincides here with epistemology and whatever cannot be attested,
does not exist. In the zone of indistinction the elements conflate. To add one
last twist to the paradox, the conflation functions like a contagious zone
that expands to suspend our knowledge: no question on the primacy
between the elements and the conflation itself might be asked because the
conflation consumes it as well.
I suggest that we understand Agamben’s conflation as a process in
which the difference between two terms or concepts is suspended. The
difference does not disappear; it rather continues itself as a trace that
becomes overwritten with its own insignificance. William Watkin brilliantly
identified the area emerging after conflation, listing synonyms that Agam-
ben uses for it:

Agamben habitually places the reader in what he calls a zone or threshold of

indistinction, inoperativity, indiscernibility, suspension or indifference. He

6 Ibid., 18–19.
58 Przemysław Tacik

uses various terms to name the zone and various other terms to designate its
specific quality, but the structure is always the same.7

Conflation differs therefore from the zone or threshold of indistinction insofar

as it refers to the transition of an opposition from the world of acting differ-
ences to the area where they are suspended. Nonetheless, conflation retro-
actively overwrites itself, suspending the difference between the world of
differences and the zone of indistinction. The latter seems to await the oppo-
sition as an event horizon of a black hole engulfs matter.
The spatial imagery that Agamben resorts to is unsurprising if we take into
account Derrida’s struggles for articulating the neutral category ‘underneath’
binary oppositions. Categories like ‘supplement’, ‘pharmakon’ or ‘hymen’,
meant to capture the neither-nor beyond metaphysics,8 eventually lead to a
spatial category: khôra. It is the ultimately neutral non-concept because it
does not take part in the play of oppositions but merely gives them space as
the all-encompassing receptacle.9 Agamben’s ‘zone of indistinction’, or ‘zone
of indifference’, functions analogically: it receives binary terms and suspends
the question about their mutual relation or primacy.
The notion of ‘conflation’, which produces exception in the heart of the law, is
much more widespread in Agamben’s thinking than the exception itself, even if
implicitly. If his philosophy is viewed from the structural, not material, point of
view, conflation is a basic figure of this thought. It does not seem preposterous to
claim that it is his primary contribution to philosophy at its fundamental level.
The (state of) exception would be then just one of many instances that conflation
accounts for. Given that a thorough exemplification of its usage would demand a
separate paper, let us settle for just some telling applications.
Conflation appears in Agamben’s writings as a process of entering a space
in which multiple categories become indistinguishable.10 In Homo sacer this
space is referred to as a zone of indistinction for ‘the categories whose oppo-
sition founded modern politics (right/left, private/public, absolutism/democ-
racy, etc.)’.11 In the legal context, conflation engulfs ‘exclusion and inclusion,
outside and inside, bios and zoe-, right and fact’,12 as well as ‘nature and
fact’,13 ‘law and fact’,14 ‘law and violence’,15 or constituting power and

7 William Watkin, Agamben and Indifference: A Critical Overview (London:

Rowman & Littlefield, 2014), xi.
8 See Rodolphe Gasché, The Tain of the Mirror. Derrida and the Philosophy of
Reflection (Cambridge, MA: Harvard University Press, 1986), 148–151.
9 Cf. Jacques Derrida, Khôra (Paris: Galilée, 1993), 20–29.
10 See also Watkin, Agamben and Indifference.
11 Agamben, Homo sacer, 4. See also 122.
12 Ibid., 9.
13 Ibid., 21.
14 Agamben, State of Exception, 26.
15 Agamben, Homo sacer, 31, 33.
 The other side of the exception 59

constituted power.16 As to bare life, conflation encompasses the sacrifice and

homicide of Homo sacer17 as well as the life of the sovereign and of Homo
sacer,18 ‘animal and man’,19 public and private life.20 Indistinction might also
absorb reign and government in contemporary democracies ravaged by the
Debordian society of spectacle.21
Yet beyond these familiar conceptualisations that revolve around the idea
of exception, Agamben uses the category of conflation in all areas of his
thinking, including postmetaphysics, aesthetics, theory of language and
theology. Conflation concerns as various oppositions as: mystery and history
(becoming indistinguishable in the end times),22 subject and object (in
adventure),23 justice and salvation (coinciding in Pilate’s judgement on
Jesus),24 the dead and the living (in God’s eternity),25 creation and destruc-
tion (in modern capitalism),26 words and things (in the very construction of
the oath),27 words and effects (in liturgy)28 or pars destruens and pars con-
stituens in philosophical research.29
This brief overview demonstrates that conflation possesses a few key fea-
tures. First, it is a universal mechanism: both a figure of thinking and a real
process. In this respect it resembles Hegel’s logic, but with suspension instead
of Aufhebung. Second, it does not seem to be time-irrelevant, but rather
associated with a particular moment of time. Agamben either hints that it
emerges with the onset of modernity or stresses that it becomes particularly
conspicuous in contemporaneity. Whenever Agamben applies it to the pre-
modern era, it seems that the re-interpretation of pre-modern phenomena has
been made possible only with the use of the concept of conflation, in itself
originating in modernity. Yet indistinction, once applied to pre-modern cate-
gories, dislocates them temporarily: their original, pre-modern placement
conflates with the modern position from which they are grasped. As a result,
they are no longer either pre-modern or modern.

16 Ibid., 41.
17 Ibid., 83.
18 Ibid., 96.
19 Ibid., 105.
20 Agamben, State of Exception, 83.
21 Agamben, Il Regno e la Gloria, 10.
22 Giorgio Agamben, Il mistero del male. Benedetto XVI e la fine dei tempi (Roma e
Bari: Laterza, 2013), 32.
23 Giorgio Agamben, L’avventura (Roma: Nottetempo, 2015), 59–60.
24 Giorgio Agamben, Pilato e Gesù (Roma: Nottetempo, 2013), 63.
25 Giorgio Agamben, Autoritratto nello studio (Milano: Nottetempo, 2017), 166.
26 Giorgio Agamben, Creazione e anarchia. L’opera nell’età della religione capita-
lista (Vicenza: Neri Pozza, 2017), 132.
27 Agamben, The Sacrament, 46.
28 Agamben, Opus Dei, 96–97.
29 Agamben, L’uso dei corpi, 9.
60 Przemysław Tacik

Third, in one of his latest books, Karman, Agamben invents another syno-
nym for conflation. Investigating once again the murky zone between rules and
practice,30 this time embodied in the tension between act and imputability,
Agamben suggests a neutral term for what lies between them: ‘a pure gesture’
(un puro gesto).31 It eludes the opposition between means and ends, becoming
‘unjudgeable’ (ingiudicabile).32 This saving category is an obvious counterpart
to the earlier theorisation of conflation between trial and punishment,33 so well
fathomed by Kafka. This juxtaposition demonstrates that conflation is a uni-
versal and ambivalent category. It might be both recognised in its many incar-
nations as a dangerous process (for instance in blurring the line between law
and violence) and a saving notion. Symptomatically, Agamben seeks the anti-
dote to the evil in the very same conflation, which responds for it.34 In this line
of thinking, he is clearly indebted to the Heideggerian legacy. The chain of
concepts which embody Agambenian liberation: ‘the suspension of the sus-
pension’,35 the Sabbath, the messianic era, letting-be (manifestly borrowed from
Heidegger) is conflation transformed into a redeeming device. Paradoxically,
conflation engulfs itself in its both variations, bringing ultimate demise and
salvation into the zone of indistinction.
If so, the concept of conflation – contrary to its limited application in the
notion of exception – would be strictly modern. It either describes modern
phenomena or, when applied to pre-modern mechanisms, reconstructs them
within the modern field of knowledge. With this recognition the conspicuous
absence of international law in Agamben’s work might be recognised as part
and parcel of his misrepresentation of modernity by the misleading assump-
tion of historical continuity.

Sovereignty and historical continuity

Agamben’s misrecognition of the role of international law is strictly correlated
to his universalising conceptualisation of sovereignty. As long as sovereignty
is conceived as a trans-historical property of power in its relation to the law,

30 This tension, viewed through the lens of the opposition (and conflation) between
form and life, was extensively explored in: Giorgio Agamben, The Highest Pov-
erty. Monastic Rules and Form-of-Life, Adam Kotsko transl. (Stanford CA:
Stanford University Press, 2013), xi-xiii, 26, 62, 84–86, 115, 143–145.
31 Giorgio Agamben, Karman. Breve trattato sull’azione, la colpa e il gesto (Torino:
Bollati Boringhieri, 2017), 136.
32 Ibid.
33 Giorgio Agamben, Il fuoco e il raconto (Roma: Nottetempo, 2014), 18.
34 In this respect, Agamben’s concept of inoperativeness (inoperosità) is a ‘positive’
incarnation of conflation. Building politics and poetics on it (see Agamben,
Creazione e anarchia, 47) are equivalent to Lévinas’ gesture of ethical reversal of
Heideggerianism.
35 Giorgio Agamben, The Open: Man and Animal, Kevin Attell transl. (Stanford,
CA: Stanford University Press, 2004), 92.
 The other side of the exception 61

understanding international law as born from the emptiness that emerged in

early modernity in the over-sovereign space is barred.
Although Agamben’s thinking seems to be deeply indebted to Hei-
degger’s, his consideration of historicity is less self-reflective than his mas-
ter’s – who, beginning with Sein und Zeit, struggled to relativise his own
thought to a particular moment in the historical development of Being.36 As
I demonstrated earlier, the concept of conflation – the philosophical foun-
dation of Agamben’s work – is highly paradoxical if analysed from the point
of view of temporality. It oscillates dialectically between its modern features
and the apparent trans-historical applicability. The philosopher not only
does not take into account this paradox but also seems to surrender to it.
His work is ravaged by the tension between finding historically universal
explanations and acknowledging the ground-breaking cut of modernity.
Nonetheless, Agamben does not explore it in a reflective manner, but dis-
guises it under a falsely comforting image of historical continuity, under-
stood as both (1) unproblematic applicability of concepts born in one epoch
to another and (2) long-lasting influence of conceptual frameworks, not-
withstanding epochal shifts.
This tension is equally recognisable in the conceptualisation of exception.
In the second volume of Homo sacer Agamben clearly recognises the modern
origin of the state of exception as a legal institution, identifying its beginnings
with the French Revolution and focusing on its application in the aftermath
of the First World War.37 Then he re-interprets Schmitt’s conception of
sovereignty, in itself deeply rooted in the discussions and legal reality of the
Weimar Republic and referring to the modern era.38 Finally, he stresses that
the proliferation of exception is a particular signum temporis of our age, tor-
mented by the global civil war.39 All these clues suggest that the state of
exception is a properly modern phenomenon, linked to the construction of
modern sovereignty.
However, Agamben immediately resorts to two strategies that obfuscate the
radicalism of the modern cut. First, he juxtaposes modern concepts and legal
institutions with Roman and medieval ones. The unreflexivity of this step is
discernible in the following fragment of State of Exception:

36 Whether this was successful is another matter. See William D. Blatner, Hei-
degger’s Temporal Idealism (Cambridge: Cambridge University Press, 1999) and
Marlène Zarader, The Unthought Debt. Heidegger and the Hebraic Heritage,
Bettina Bergo transl. (Stanford, CA: Stanford University Press, 2006).
37 Agamben, State of Exception, 11–22.
38 Cf. Carl Schmitt, Political Theology. Four Chapters on the Concept of Sover-
eignty, George Schwab transl. (Cambridge, MA and London: MIT Press, 1985),
16–35.
39 Cf. Giorgio Agamben, Stasis. Civil War as a Political Paradigm, Nicholas Heron
transl. (Edinburgh: Edinburgh University Press, 2015), vi, 1–2.
62 Przemysław Tacik

There is an institution of Roman law that can in some ways be considered

the archetype of the modern Ausnahmezustand, and yet – indeed, perhaps
precisely for this reason – does not seem to have been given sufficient
attention by legal historians and theorists of public law: the iustitium.
Because it allows us to observe the state of exception in its paradigmatic
form, we will use the iustitium here as a miniature model as we attempt to
untangle the aporias that the modern theory of the state of exception
cannot resolve.40

At no point is this assumed continuity, based on a selective affinity between

Ausnahmezustand and iustitium, confronted with the essentially modern char-
acter of the former, which was previously implicitly acknowledged. The Hei-
deggerian legacy in Agamben’s thinking is manifestly at work in the attempt
to always posit a certain historical institution or concept in the lieu of origin,
which is meant to properly explain the contemporary confusion around its
late incarnations. Heidegger’s preference for ancient, especially pre-Socratic
Greece is here replaced by a particular fondness for ancient Rome and the
medieval Christian legacy. Apart from Heidegger, Agamben inherits from a
group of German Weimar or post-Weimar thinkers – Carl Schmitt, Karl
Löwith and Jakob Taubes – who all explored and propounded the ‘theologi-
cal continuity’ theorem. According to them, Western thinking and political
institutions are still determined by the legacy of theological patterns and
concepts of Christianity.41 Notably, Agamben does not confront this pre-
mise42 with the breakthrough of modernity that he himself assumed.43
Nonetheless, the paradoxical nature of the concept of conflation should
attract his attention. If properly reconsidered, it concerns history as well as
conceptual oppositions; thus, it undermines the somewhat ramshackle under-
pinning of Agamben’s historical constructions.

40 Agamben, State of Exception, 41.

41 Schmitt, Political Theology, 36; Jacob Taubes, Occidental Eschatology, David
Ratmoko transl. (Stanford, CA: Stanford University Press, 2009), 13; Karl
Löwith, Meaning in History: The Theological Implications of the Philosophy of
History (Chicago: University of Chicago Press, 1949). See also the critique of
Löwith in: Hans Blumenberg, The Legitimacy of the Modern Age, Robert M.
Wallace transl. (Cambridge, MA and London: MIT Press, 1985), 27–121.
42 Agamben’s profound affinity with this paradigm reaches its peak when the phi-
losopher claims that probably all philosophy of history is constitutively Christian.
See Agamben, Il mistero del male, 15.
43 It is most astonishing in the paradigmatically modern phenomenon of the camp.
Tawia Ansah perspicaciously noted that ‘[f]or Agamben, to effect the transhis-
toricity of the camp, the historical camp must be sedimented and immanentized:
one singular event can be traced back to the beginnings of the philosophical and
theological tradition, to Athens or to Eden, depending upon one’s point of
origin.’ Tawia Ansah, ‘Auschwitz as Nomos of Modern Legal Thought’ (2010) 22
(1) Law and Literature 145.
 The other side of the exception 63

Second, Agamben displays a propensity for conceptual universalism.

Properly modern phenomena, such as the state of exception, are explained
with reference to features of language or humanity, which are posited as
trans-epochal. The most eminent examples concern the anthropological
machine theorised in The Open44 or the features of the human being as a
speaking creature, which are responsible for the trap of normativity, exception
and suspension, as well as for the Western politics.45
The relation between the modern specificity of Agambenian concepts and
his both historical and universal explanations remains almost untouched in
the philosopher’s own reflection. It is all the more intriguing given that some
of the constructed links sound particularly questionable. For example,
Agamben explicitly deduces modern biopolitics46 and capitalism47 from
Christian theology, which sounds like an echolalic variation on Heidegger.
‘Prehistory is more true than history’,48 he claims, arguing for an intellectual
archaeology49 which will demonstrate the arche – both the origin and the
determining principle50 – of our current conceptuality. Nevertheless, by
smoothly passing over the question of historical continuity and universalism
Agamben misreads his own account of the outbreak of modernity and its role
for international law. The concept of conflation, although itself of seemingly
modern origin, engulfs the very possibility of proper historical differentiation.

The outbreak of modernity and the rise of international law

Agamben’s sovereign, modelled after the well-known Schmitt’s definition, is
not only monolithic51 but also analysed from the point of view of its relation
with the order that it tops. Such a sovereign – as the sole decision-maker of
the state of exception – remains a paradoxical point of the legal order, both
founding and destabilising it. What is absent in this vision, however, is the
paradigmatically modern politico-legal area above the sovereigns.

44 Agamben, The Open, 27–30, 80.

45 Giorgio Agamben, Che cos’è la filosofia? (Macerata: Quodlibet, 2016), 25–29, 40;
The Sacrament of Language, 10–11; L’uso dei corpi, 334.
46 Agamben, Il Regno e la Gloria, 13–16.
47 Agamben, Creazione e anarchia, 130.
48 ‘La preistoria è più vera della historia’ [Agamben, Autoritratto nello studio, 154].
49 Agamben, Creazione e anarchia, 9.
50 Ibid., 91–94.
51 There has been considerable criticism of the unidimensionality of Agamben’s
vision of the sovereign which, among others, pointed to the fact that the sover-
eign state is not a sole decision-maker, but an intricate web of institutions whose
power is always more or less balanced. See Adam Ramadan, ‘Spatialising the
refugee camp’, (2013) 38 Transactions of the Institute of British Geographers 65;
Elspeth Guild, ‘Agamben face aux juges. Souveraineté, exception et anti-
terrorisme’, (2003) 51 Cultures et Conflits 130.
64 Przemysław Tacik

International law in its proper sense was born in early modern Europe. In
the Middle Ages the theologico-political structure of the continent was based
on the imagined Christian community which had two pivotal positions at the
top of it. God was imagined as the absolute ruler and keystone of the sym-
bolic order. Between God and the level of state rulers, there was a mezzanine
position, a ruler pro tempore of Europe: this position was an object of com-
petition between the pope and the emperor. Despite its many incoherences
and internal tensions, the Christian community of Europe was imaginable in
terms of totality.
The onset of modernity, however, led to structural displacement in this
order. First, state rulers gradually began to arrogate themselves the role of
absolute sovereigns, which is best epitomised in Jean Bodin’s canonical
theory of early modern sovereignty. In Bodin’s view, the sovereign does not
recognise any power over his position except for God’s; he decrees laws, but
is not subjugated to them.52 In other words, the level of state rulers becomes
the epicentre of politico-legal power and a critical knot between violence
and power.
Second, modern sovereign’s demand for power is localised: it is limited to
the territory of their states. The two traditional aspects of sovereignty (par-
enthetically, criticised by Schmitt in his introduction of the exception-based
definition of the sovereign53) – internal (absolute power over the social life of
the state) and external (independence from external sources of power) –
revolve around the idea of a determined territory. Repelling external claims to
power over the territory and affairs of a modern state founds sovereignty on
the negative power that allows this state to found its legal system on its own
unfounded decision. For the same reason total jurisdiction over state popula-
tion must be exclusive. This negative power guarantees independence of
sovereigns. Modern sovereignty is therefore based on the concept of recog-
nising other sovereigns’ rights and mutual co-existence. As Schmitt noted,
international law constructs the border not in order to exclude, but to recog-
nise the sovereign neighbour.54 This negative aspect of sovereignty is not just
a by-product of the creation of modern states. On the contrary, it is a key
factor in their emergence, indissolubly linked to the positive aspect.
Third, mutual recognition between sovereigns is based on a set of para-
doxes. Each arrogates to himself/herself the total and supreme power, but at
the same time recognises other sovereigns’ equal right, if only spatially sepa-
rated. Recognition emerges in the emptiness that is produced in the space
above the sovereigns. Whereas the Christian community assumed it to be part

52 Jean Bodin, Les six livres de la république (Paris: Fayard, 1985), 191–228,
297–299.
53 Schmitt, Political Theology, 16–35.
54 Carl Schmitt, Der Nomos der Erde im Völkerrecht des Ius Publicum Europaeum
(Köln: Greven, 1950), 22.
 The other side of the exception 65

and parcel of a positively constructed politico-legal order, early modernity

identifies it with a state of nature between equal sovereign individuals. Jean
Bethke Elshtain perspicaciously noted that modern sovereignty is built up via
a negative reference to the supreme position of power, which ceased to exist
with the demise of the medieval symbolic totality of Europe.55 In this sense,
being sovereign means actively rejecting any claim of power over oneself. Pars
in parem non habet imperium is a maxim that founds international law as an
order built primarily upon the concordant will of sovereigns, custom and
general principles of law.
Hegel, a notorious eulogist of the sovereign logic, expressed the basic fra-
mework of international law in a short fragment from The Philosophy of
Right:

International law arises out of the relation to one another of independent

states. Whatever is absolute in this relation receives the form of a com-
mand, because its reality depends upon a distinct sovereign will. … There
is no judge over states, at most only a referee or mediator, and even the
mediatorial function is only an accidental thing, being due to particular
wills.56

A state is not a private person, but in itself a completely independent totality.

Hence, the relation of states to one another is not merely that of morality and
private right. It is often desired that states should be regarded from the
standpoint of private right and morality. However, the position of private
persons is such that they have over them a law court, which realises what is
intrinsically right. A relation between states ought also to be intrinsically
right, and in mundane affairs that which is intrinsically right ought to have
power. But as against the state there is no power to decide what is intrinsically
right and to realise this decision. Hence, we must here remain by the absolute
command. States in their relation to one another are independent and look
upon the stipulations that they make one with another as provisional.57
Despite profound transformations of international law after the Second
World War – which led to the creation of a new international order in which
war is generally illegal58 – this branch of law is still ravaged by ineffectiveness
and self-doubt which has no counterpart in other branches. As Hegel noticed,
international law is born in the inter-sovereign void. It has no arch-sovereign,
no court of highest instance whose jurisdiction would not stem from states’

55 Jean Bethke Elshtain, Sovereignty. God, State, and Self (New York: Basic Books,
2008), 77–158.
56 Georg Wilhelm Friedrich Hegel, The Philosophy of Right, S. W. Dyde transl.
(Kitchener: Batoche Books, 2001), 262, 264.
57 Ibid., 262–263.
58 Ian Brownlie, Principles of Public International Law (Oxford: Oxford University
Press, 2008), 729–747.
66 Przemysław Tacik

consent, and no universal system of sanctions. As such, it is a total and per-

manent zone of indifferentiability between law and fact. If norms of interna-
tional law stem generally from the will of sovereigns, their consent might be
withdrawn with the effect of deactivating the norm. Even though con-
temporary international law often prohibits renunciation of treaties,59 the very
construction of sovereignty is aimed at providing the ultimate possibility to
repeal one’s own decision. In such cases, notorious ineffectiveness of interna-
tional law blurs the division between rule and application, making the former
often just an argument in a dispute settled by factual confrontations of power.
Among all branches of law Nietzsche’s remark on Heraclitus is perhaps most
pertinent to international law: ‘the judges themselves seemed to be striving in
the contest and the contestants seemed to be judging them’.60
Consequently, international law is a notorious field of paradoxes which still
give rise to numerous volumes attesting to its problematic character or even,
as in the famous case of Hans Kelsen, identifying it with ‘primitive law’.61
Nevertheless, from the point of view of Agamben’s approach to jurisprudence
it is more than problematic: it constitutes the other side of exception without
which the theory of sovereignty is wanting. The inherent void of international
law matches the zone of exception that the sovereign creates internally. In this
light, the sovereign is nothing but an empty place of naked self-grounding and
self-justifying power which exerts its influence both internally (over the legal
order that it both founds and suspends) and externally (in the empty space of
inter-sovereign relations).

Modern sovereignty: displacing Agamben

It seems therefore that Agamben’s approach to the relation between sover-
eignty and exception requires further development, which would relate it to
the question of modernity’s uniqueness. Modern sovereignty is perhaps not
just yet another incarnation of the same concept, but a distinct category that
should be interpreted within its own politico-legal order rather than

59 See ibid., 620–626.

60 Friedrich Nietzsche, Philosophy in the Tragic Age of the Greeks, Marianne
Cowan transl. (Washington: Regnery, 1962), 57.
61 ‘International law, as coercive order, shows the same character as national law, i.
e., the law of a state, but differs from it and shows a certain similarity with the
law of primitive, i.e., stateless society in that international law (as a general law
that binds all states) does not establish special organs for the creation and appli-
cation of its norms. It is still in a state of far-reaching decentralization. It is only
at the beginning of a development which national law has already completed.’
Hans Kelsen, Pure Theory of Law, Max Knight transl. (Clark, NJ: The Lawbook
Exchange, 2005), 323. See also Hans Kelsen, Principles of International Law, R.
W. Tucker transl. (New York: Holt, Rinehart & Winston, 1967). On Kelsen’s
evolution of views on international law see: François Rigaux, ‘Hans Kelsen on
International Law’, (1998) 9 European Journal of International Law 325.
 The other side of the exception 67

compared, somewhat artificially, to its previous models. Agamben’s theory

captures the specificity of modern sovereignty – primarily due to its roots in
Schmitt’s definition and the use of the category of conflation, but then extra-
polates and mystifies its historical continuity.
Seen from this perspective, modern sovereignty presents a more complex
phenomenon than the monolithic locus of decision on the exception. It is
always displaced, imagined as being somewhere else but practised here and
now – always in the name, on behalf, officially temporarily and exceptionally,
but in truth permanently and without true justification. In this sense, Agam-
ben’s assumption about modernity (or, more often, late modernity) as an
expanding space of exception should be viewed more broadly: modernity is
an epoch structurally reigned by a displaced power which always seems pro-
visional but in fact remains unassailable. Exception is only one of its
manifestations.
The perspective of international law – as a specifically modern phenom-
enon – demonstrates that Agamben’s view is limited. The assumption of
continuity does not let him notice the truly modern shift in the functioning of
sovereignty. Just as the state transforms itself from early modern absolute
monarchy, in which the monarch embodies sovereignty, to the proper modern
state in which the so-called ‘nation’ becomes the sovereign, so does interna-
tional law pass from the concentration on state power to highlighting the role
of the population. The modern state seems to be fully under the command of
its nation, which is claimed to be sovereign – internally and in external rela-
tions. But this nation cannot exist in international relations without a state
that simultaneously determines its character, boundaries (through the institu-
tion of citizenship), language and biological features.62 Even though modern
sovereignty belongs to the nation, it is exerted – on its behalf – by the state,
which in theory is nothing and in practice everything. It seems to be nothing
but a small displacement between population and state,63 yet in truth it con-
centrates exceptional power and tends to spiral into a furious attempt to
finally make nation and state overlap, as exemplified in the practice of the
Nazi state. Naturally, this practice seems to be in stark contrast with con-
temporary functioning of states that are committed to protect their popula-
tion and respect human rights. But in truth it is perhaps only now – after the
Second World War and the subsequent evolution of states – that we might
understand modern sovereignty.
What seems pivotal in its functioning is the fact that it presents itself as a
vanishing mediating point between the nation as the reigning sovereign and
the governed population. In Il Regno e la Gloria Agamben explores the rift
between reign and government consisting of displacement between the

62 See Eric J. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth,
Reality (Cambridge: Cambridge University Press, 1990).
63 Cf. Agamben, Stasis, 36–40.
68 Przemysław Tacik

nominal locus of power and its executive centre. But this rift is in fact the
basic paradox of the modern state in which the population is the nominal
sovereign, whereas everyday government is performed in its name, but with
full effectiveness.64 Claude Lefort convincingly demonstrated that modern
democracy is built upon the emptiness of the locus of power, which is always
occupied temporarily.65 Extrapolating Agamben allows us to conclude that
the paradox of sovereignty – and its split into nominal reign and factual
government – is built upon the negativity which rules the inter-sovereign
space, making it a domain of permanent conflation between law and fact.

The exceptional internationality of camps

In the final part of this chapter, I am going to reconsider the phenomenon of
Nazi camps, trying to extrapolate Agamben’s thought66 into new areas, in
which the international dimension would be as important as the internal one.
As Foucault noted in his Collège de France lectures,67 early modern states
were concerned primarily with territory, whose inhabitants more or less
shared the fate of their land. At the end of 18th century, however, the para-
digm changed and states began to concentrate on population, viewed as a
biological matter, which needed training and correction.68 In international
law, this trend started to be noticeable much later. But when it finally
appeared, it did not replace previous international law with a completely new
one, just as – on the national level – sovereignty did not disappear but was
handed by the monarch to the nation. Contemporary international law is a
compound of early modern international grid of sovereigns and a new
dimension of population. Just as modern sovereignty is an empty place both
dividing and uniting state and nation, so the international law must coincide
two contradictory dimensions: of sovereign states and of populations.
This contradiction is visible in multiple paradoxes. Once we grant to
population the right to self-determination, it collides with state sovereignty
and the inviolability of its territory – and makes this right (outside the context
of decolonisation) notoriously ineffective and often just declaratory.69
Another example concerns human rights: international law forbids genocide
and crimes against humanity but relies on the power of the main perpetrators

64 Cf. Agamben, Il Regno e la Gloria, 303–313.

65 Claude Lefort, On Modern Democracy in: Democracy and Political Theory, David
Macey transl. (Minneapolis, MN: University of Minnesota Press, 1988), 17–20.
66 See Giorgio Agamben, Remnants of Auschwitz. The Witness and the Archive,
Daniel Heller-Roazen transl. (Cambridge, MA: MIT Press, 2002).
67 Michel Foucault, ‘Society Must Be Defended’. Lectures at the Collège de France,
1975–1976, François Ewald transl. (New York: Picador, 2003), 35.
68 Ibid., 239–265.
69 See Jörg Fisch, The Right of Self-Determination of Peoples: The Domestication of
an Illusion, Anita Mage transl. (Cambridge: Cambridge University Press, 2015).
 The other side of the exception 69

of these crimes – states – whose cooperation with international bodies is the

primary condition of human rights protection. Thus, contemporary interna-
tional law is in constant tension between sovereign rights of a state and rights
of the population. These two contradictory principles are held together, at
great expense, by the whole system of international law based on sovereignty.
This dualism should not be perceived as a transitional stage from full state
sovereignty to future government of humankind. On the contrary, a Hegelian
conclusion seems more pertinent: if they coexist in tension, but still function,
they must be parts of the same politico-legal device, which carries out its
power – also biopolitical power – despite having no ground.
In this context, the phenomenon of Nazi camps provides an example of
extrapolated logic of purely modern sovereignty.70 The camps were the defi-
nitive places in which the German state carried out the envisaged purification
of the German population. Fencing off the special territory concentrated
those who were to be excluded from the Volk and in this sense produced an
extra-national space, populated by the de facto nationless. The outbreak of
the Second World War prompted the Nazis to disregard citizenship altogether
and apply universal race politics that generally took no account of indivi-
duals’ legal bond with their states.
In this sense, camps constituted a zone of the state of exception in not
only domestic but also international law. Within their territory, not only
were international conventions suspended, but the mere recognition of other
states as entities that might claim the right to protect their citizens. Nazi
Germany happened to desist from detaining foreign citizens or to release
them if it feared retaliation. However, within the territory of the camp such
considerations were already of no account. In this regard, the German state
acted as if any rights of other states to their population were suspended. It
was clearly manifested by a conflict between the Vichy government and the
Third Reich over the deportation of French Jews. Initially, the Vichy gov-
ernment collaborated in deporting Jews without French citizenship and
opposed the Nazis when it came to French citizens.71 Then, however, the
Third Reich disregarded any autonomy left to the Vichy and moved to the
deportation of all people whom the Nuremberg laws defined as Jewish.
Therefore, in forcing its direct rule over bare life, the Third Reich exceeded
the usual rights of a sovereign to its population. Its power seemed to over-
take the power of any other state, regardless of the territory. In this light we
can understand Hannah Arendt’s thesis that the Nazis regarded external
relations in internal, police terms.72 The Third Reich put itself in the

70 Cf. Bülent Diken and Carsten Bagge Laustsen, ‘The Camp’, (2006) 88 (4) Geo-
grafiska Annaler. Series B, Human Geography 446.
71 Raul Hilberg, The Destruction of European Jews (New York and London:
Holmes & Meier, 1985), vol. II, 609–659.
72 ‘For it is evident that those who regard the whole earth as their future territory
will stress the organ of domestic violence and will rule conquered territory with
70 Przemysław Tacik

position of a universal police power, for which there were no borders. By

suspending recognition, Nazi Germany actually put itself in the position of
a pan-sovereign, which maintains relations not with any intermediary poli-
tical power, but with bare life itself.73
From the point of view of international law, it would be easy to understand
the Third Reich as a persistent negator of international norms that arrogated
to itself absolute sovereignty. Nonetheless, it did not undermine the triad:
exception-based international law–sovereign state–population. It rather
reconfigured and thus made visible the complex and unobvious relation
between the two zones of exception, under and above sovereign power:
international law and bare life. The sovereign withdrawal of consent to
international obligations, later pushed to the extreme forms of practical sus-
pension of international law, was a strict corollary to extending absolute
biopower of human beings under Nazi control. In a thought-provoking
manner the suspension of recognition on the international plane corre-
sponded to creation of a practically a-national zone within the camps, popu-
lated by people of numerous ethnicities and languages.74 By usurping
universal biopower, Nazi Germany suspended to a certain extent the premise
of international law: the correspondence between states and populations. In
this sense, camps were proto-national spaces of bare life, which escaped the
primal division of the modern world into nationalities.75 Interestingly, the
post-war system of human rights protection based on international law –
established after the return of this division – is based on establishing a specific

police methods and personnel rather than with the army. Thus, the Nazis used
their SS troops, essentially a police force, for the rule and even the conquest of
foreign territories, with the ultimate aim of an amalgamation of the army and the
police under the leadership of the SS.’ Hannah Arendt, The Origins of Totalitar-
ianism (San Diego: A Harvest Book, 1979), xxxvi.
73 See also Agamben, The Open, 76.
74 Primo Levi noted the effect it produced: ‘The confusion of languages is a funda-
mental component of the manner of living here: one is surrounded by a perpetual
Babel, in which everyone shouts orders and threats in languages never heard
before, and woe betide whoever fails to grasp the meaning.’ Primo Levi, If This Is
a Man…, Stuart Woolf transl. (New York: Orion Press, 1959), 36.
75 To a certain degree, the Third Reich succeeded to export this model to other
countries, thereby undermining the basic principles of international law. As
Hannah Arendt noted, ‘the increasing groups of stateless in the nontotalitarian
countries led to a form of lawlessness, organized by the police, which practically
resulted in a co-ordination of the free world with the legislation of the totalitarian
countries. That concentration camps were ultimately provided for the same
groups in all countries, even though there were considerable differences in the
treatment of their inmates, was all the more characteristic as the selection of the
groups was left exclusively to the initiative of the totalitarian regimes: if the Nazis
put a person in a concentration camp and if he made a successful escape, say, to
Holland, the Dutch would put him in an internment camp.’ Arendt, The Origins
of Totalitarianism, 288.
 The other side of the exception 71

alliance between the two zones of exception, international and sub-sovereign.

Based on mutual commitments of states, some post-war human rights
instruments (especially the European Convention on Human Rights) built an
edifice of objective obligations of states which are meant to safeguard rights
of individuals.76 Yet this objective system is based on obliteration of the pos-
sibility of states to withdraw their consent. Internationally guaranteed human
rights are therefore built upon the same disguise of exception.
Consequently, Agamben’s theory needs to be developed in order to
encompass two sides of the sovereign. Both are based on exceptions: national
law on the possibility of being suspended through a sovereign decision and
international law on unilateral withdrawal. As human rights constitute a cri-
tical knot between the two, their legal status is feeble and conditional. Per-
haps then their universalism should be treated as a mediating counterpart of
the sovereign exception.

Conclusion
The conspicuous absence of international law in Agamben’s work seems
strictly correlated with his misrecognition of the specificity of modernity.
Consequently, the Agambenian approach to jurisprudence combines pro-
found perspicacity with surprising blind spots. It is only with understanding
the paradoxical nature of international law that two zones of exception might
be discerned in their mutual entanglement.
Contemporary human rights law conceals a mystified biopolitical device,
which might easily dispel the universalism of protection and give way to re-
uniting the two zones of exception in one territory of the camp. The nation
state, based on a paradoxical difference between the nation and the state,
which will never overlap, will always be tempted to spiral into the definitive
attempt to identify them. In the post-war era nation states not only still exist
but the world population has been trapped in their cooperative exertion of
power. They carry out universal police, but neatly distributed into national
instances. Parallel coexistence of two principles of international law – of
sovereign states and of populations – constitutes a permanent biopolitical
device. A device which, pushed to the extreme in the camps, leaves as a
remainder and a reminder humanity itself. If an ideal nation state governs
over the nation in the name of the nation, the phenomenon of Nazi camps
reveals its hidden zone of exception. In the camp the sovereign governs not
over a nation, but over a remainder of humanity; and not on behalf of the

76 As famously stated by the ECtHR in the Ireland v. the UK case (judgment from
18 January 1978, app. no. 5310/71), ‘Unlike international treaties of the classic
kind, the Convention comprises more than mere reciprocal engagements between
contracting States. It creates, over and above a network of mutual, bilateral
undertakings, objective obligations, which, in the words of the Preamble, benefit
from a ‘collective enforcement’ (§ 239).
72 Przemysław Tacik

nation, but on no one’s behalf. This is the zone of exception, in which the
suspension of international law conflates with the suspension of domestic
legal norms.
Agamben’s seduction with the Heideggerian paradigm in which danger and
salvation conflate profoundly mystifies this complex relation.77 The remedy
for the modern zone of indistinction cannot reside in its reinterpretation as
the messianic era, in which law is suspended: this is nothing but extrapolation
of the paradigmatically modern device imprinted in the construction of the
nation state. If any remedy can be sought, it must be located outside moder-
nity. Therefore, Agamben’s propensity to universalise and de-historicise only
perpetuates what it denounces. The messianic era of suspension is nothing
that awaits the entire history, but a disastrous temptation at the crossroads
between international and domestic law. What can await us, however, is the
true end of modernity: an event whose scope and sense must elude every
modern eye.

77 Agamben shares with Heidegger many fundamental determinations of thinking.

One which seems particularly pernicious is the mystifying cult of passivity, par-
enthetically privately professed also by Carl Schmitt. See Klaus Figge, Dieter
Groch, ‘Solange das Imperium da ist’: Carl Schmitt im Gespräch 1971 (Berlin:
Duncker & Humblot, 2010), 54.
Chapter 4

Minor law
Notes towards a revolutionary
jurisprudence
Tormod Otter Johansen

Introduction
A characteristic specific to contemporary Western society is its autonomous
sphere of legal rules and the order set up to deal with those rules, which
includes legislators, courts, and the police. However, this social sphere of law
is no longer just a part of society. Instead it now seems to encroach upon and
act as the hegemonic structure for all parts of society. Juridical argumenta-
tion, legislation, and rights discourse is the dominant mode of political
thinking and acting today, from economic processes to the family, from reli-
gion to solidarity.
This chapter interrogates two of the most radical attempts at thinking
about law beyond the horizon of this hegemony. The first attempt is
made by Evgeny Pashukanis, who argues that law as such will be extin-
guished in a future society. The second is that of Giorgio Agamben, who
argues that law will continue, but that it will take on a radically different
role, emptied of force and no longer married to sovereign power.
Informed by their arguments, I attempt to sketch out a third path: that
law could shift from its hegemonic position and become what could be
called minor law. This minor law would not be non-violent, nor would it
be without coercive force, but it would exist in a qualitatively different
position than law does today.
If law is moved into a minor position it will also be put in an excep-
tional position. The trajectory of modern society is one where law has
increasingly become the dominant form of social organisation. It has
embedded itself in social life as the normal structure conflict resolution
and governing. Agamben’s claim is that law and the exception to law, in
declarations of state of exception, camps, etc., have reached an apex where
the norm and the exception are indistinguishable.1 Whether or not one
agrees that law and its exception are no longer possible to distinguish, it is

1 Giorgio Agamben, State of Exception (Chicago: University of Chicago Press,

2005), 87.
74 Tormod Otter Johansen

significant that even deviations from legal normality are stated in legal
language. When torture, camps, drone strikes, invasions and other acts
with specious legal basis are legitimised today, it is done through legal
argument.2 Nothing, even the violent actions of the most powerful actors
in the world, escapes legal language.
The wager in this chapter is that beyond the hegemony of the legal, and
beyond the permanent state of exception that Agamben has argued we live in,
lies the possibility of a world where law and legal processes again become true
exceptions. True exceptions in the sense that legal rules and procedures
become actually rare and, even more importantly, that most social interaction
will be conducted without laws and legal rules being relevant. When laws,
courts and jurists are engaged it will when absolutely necessary, similar to
how the state of exception in its original form was a rare and truly excep-
tional phenomena.
I claim that there exists a third alternative between the ontological
overcoming of law in the Benjaminian-Agambenian notion of a coming
world where law is no longer in force, or married with violence, but only
studied; and the irrelevance of law in communism that Pashukanis sees as
the end goal of revolution. The third alternative is that law might not be
overcome or left by the wayside of history, but that it can take on a new
minor position next to other social forms and cease to be the major form
of organising social relations it is today. This third way is not the reformist
socialist approach of gaining state power to use the state and its legal
order to effect a more just and egalitarian order.3 It is presupposed here
that the major shift a communist revolution entails, if possible and actu-
ally realised, would be an overall reduction in coercion. This is at the core
of communist thought and the promise that the Marxist tradition con-
tinuously reaffirms.4
Pashukanis’s main claim is that law and legal relations will disappear and
be replaced by technical regulations to coordinate human action and moral
rules that will be voluntarily followed, instead of criminal and other forms
of law.
In Agamben’s philosophy of a coming community, a world beyond the
present is sketched where law will still continue to exist,5 but it will be
released from all power and force and therefore, with the Judaic law of
Halacha as a template, only studied. For Agamben, following Benjamin,

2 Note the infamous ‘Torture memos’ by John Yoo, prepared in absolute secret to
give legal legitimation to CIA torture.
3 Whether such a path is open at all is debatable, but that is not the path I inves-
tigate in the following.
4 Cf. Michael Head, Marxism, Revolution and Law: The Lively Debates of Early
Soviet Russia (Saarbrücken, Germany: VDM Verlag Dr. Müller, 2010), 19.
5 Giorgio Agamben, The Coming Community (Minneapolis, MN: University of
Minnesota Press, 1993).
 Minor law 75

law will still exist, yet it will not be entwined with violence and coercion,
and it will likely be followed voluntarily. While any straightforward com-
parison and critique of these two thinkers necessarily does violence to
their work and legacies, the reason for this study is not to disprove the
validity or value in their respective philosophical positions. Rather, it is
focused on sketching out the possibility of a third way between the dis-
appearance of law and the continuation of law without force. This is possi-
ble due to the value of Pashukanis’s and Agamben’s contributions. Even if
law and the juridical, both in theory and in praxis, have been amply stu-
died and critiqued in the Marxist tradition, these studies have mostly
focused on inquiring into, and critiquing the role of, legal norms and
institutions in the present social order, and the role of law in creating and
maintaining capitalism.6
This study’s purpose is to connect Agamben with Pashukanis, partly
through the idiosyncratic but still openly Marxist thinker, Benjamin. Agam-
ben might not be a Marxist, but he is a thinker working and writing in rela-
tion to this tradition. Not least his important positioning early in Homo
Sacer, where he criticizes keeping the state as the ‘fundamental horizon’ when
the ‘weakness of anarchist and Marxian critiques of the State’ was to not
have investigated the State as its originating structure as such. Agamben is
clearly situated in an antagonistic position vis-à-vis the state, and therefore on
the side of the anarchist and Marxian tradition:

But one ends up identifying with an enemy whose structure one does not
understand, and the theory of the State (and in particular of the state of
exception, which is to say, of the dictatorship of the proletariat as the
transitional phase leading to the stateless society) is the reef on which the
revolutions of our century have been shipwrecked.7

There is a general lack of studies on law and the juridical in relation to the
future aspect and goal of Marxist thought: revolution and suspension of the
current capitalist order. Here the singular contribution from Pashukanis
stands out, even though it is embedded in his specific Soviet context, and was

6 And here I place Agamben in this tradition as well. (See especially Daniel
McLoughlin, ‘Introduction: Agamben and Radical Politics’, in McLoughlin (ed.),
Agamben and Radical Politics (Edinburgh: Edinburgh University Press, 2016), 5,
and the edited volume it introduces as a whole. McLoughlin points out that the
shift in Agamben’s work towards economy and government partly makes up for
the critique he has received in not adequately regarding the issues that are the
main focus of the Marxist tradition, Daniel McLoughlin, ‘Rethinking Agamben:
Ontology and the Coming Politics’, (2014) 25(3) Law and Critique 323.
7 Giorgio Agamben, Homo Sacer : Sovereign Power and Bare Life (Stanford, CA:
Stanford University Press, 1998), 11.
76 Tormod Otter Johansen

later swept away in the catastrophe of the Stalinist era.8 Pashukanis is unique
in that he specifically addresses the question of law and revolution in relation
to communism from a juridical perspective. This gives this theme more depth
than it receives in the peripheral comments from Marx and Engels, as well as
compared to the sweeping fragments in Lenin’s work. The greatest lack is still
that this approach and Pashukanis’s theory was not picked up and developed
afterwards. Unfortunately, the questions of law in revolution, and after revo-
lution, fell silent for decades.
While this central theme of law and revolution from a legal theoretical
perspective is central to jurisprudential thought in a Marxist tradition, it is
still in its infancy.9 The notion that this is appropriate, since we shouldn’t
worry about questions regarding the organisation of social life beyond the
boundary of revolution, is here rejected. It might be that any attempt to
contribute to a field we may call revolutionary jurisprudence, with the aim of
studying the role of law in and beyond revolution, also necessarily consists
of speculation. But speculation is different from programmatism that
attempts to prescribe future action. The possible futility and harmfulness of
theories of future actions should not scare us away from proper speculation.
Speculation is an act of thinking beyond the present by way of looking at
what is already here.
On the path of minor law, many, perhaps even most, laws will wither away
because they will be unnecessary and able to be replaced with other forms of
social coordination that do not involve violence and coercion. This is a
result of the overall reduction in coercion necessary in a world without wage
labour, markets and private property. Some laws might still exist, concerning
violence against persons or for the protection of children. These can possi-
bly, but not necessarily, be coupled with coercive force, with violence. This
would still entail a radical shift from the contemporary situation where legal
regulation is a hegemonic type of social organisation and continues to
expand to encompass attempts to solve all problems in human life. To turn
this trend around would mean that law would not disappear, but would be
subordinate and put in a minority position vis-à-vis voluntary and non-
coercive forms of social organisation.

8 See Head, Marxism, Revolution and Law: The Lively Debates of Early Soviet
Russia, chapter 8. The rising interest in Pashukanis’s thought, not least in inter-
national law, during the latter decades should be noted: see China Miéville,
Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill,
2005).
9 Cosmin Cercel, Towards a Jurisprudence of State Communism: Law and the
Failure of Revolution (Abingdon: Routledge, 2018), 50.
 Minor law 77

Law without coercion

Daniel Loick suggests that it is possible in theory, and perhaps in practice, to
think that law can continue to exist in the future without being conjoined with
sovereign power and violence. Law would then be compatible with a “radi-
cally democratic society” where law is not enforced through coercion and
instead “takes on the character of a voluntary and therefore an-archic asso-
ciation”. Law would take the form of a communal agreement and still
“coordinate collective action and the cooperation of the whole society”.10
Loick’s critical project is, among other things, a damning critique of the
moral legitimacy of law as such.11 However, it still constitutes a careful
attempt to reconstruct a meaningful role for law beyond the horizon of state
power, the latter being a reality and assumption we seem almost incapable of
reaching past today.
One question is whether or not the law that would subsist in a post-sover-
eign world would be law at all. The main example of a non-sovereign body of
law in Loick’s text is the Judaic law of Halacha, which is upheld in the sense
that it is voluntarily transferred, studied, interpreted and followed by Jewish
people.12 A critique of this empirical example could be made, vulgarly, by
referring to both the violent historical effects of Jewish law inside commu-
nities and families and the partial application of its laws in the contemporary
state of Israel.13 But Loick’s theoretical point concerns the actual realisation
of law without coercion, where the Jewish tradition surely provides many such
examples. Judaic law in this mode is not connected to a sovereign state power,
which enforces the law through violence or the threat of violence.
In other words, Halacha has functioned in a recognisably legal fashion,
concerning rules of conduct and adjudicating different matters of life and
action inside participating communities. In that sense, it is juridical, just like
common, civil or international law. But it has also not always been conjoined
with sovereign power, with a state that enforces it. Rather, it once functioned
as an integrated, if not immanent, aspect of Jewish communal life.
The example of Halacha is therefore apt for the purposes of Loick’s project
since it amounts to a sort of rehabilitation of law as a legitimate force in
social life, after it has suffered through a strong critique of its violent illegi-
timacy. His wager seems to be that law with violence is not good, but perhaps
law without violence could be. The attempt by Loick is centred on a saving or

10 Daniel Loick, A Critique of Sovereignty, Amanda DeMarco transl. (London:

Rowman & Littlefield, 2019), 216.
11 Loick points to the irony of the attempts to legitimate violence, Loick, 71ff.
12 Loick, 194f. This is a central example to Agamben as well, not least inspired by
the work of Benjamin.
13 Loick also defends against such critiques in Daniel Loick, ‘Law without Vio-
lence’, in Christoph Menke (ed.) Law and Violence: Christoph Menke in Dialogue
(Manchester: Manchester University Press, 2018), 104.
78 Tormod Otter Johansen

redemption of law, so that it can still prevail as an important, though not

coercive nor violent, form of social organisation. I am sceptical of Loick’s
solution. My suggestion in the final section of this chapter will be that law
might need to be retained, and that it will then still be violent and coercive,
but that it will nevertheless exist in a different position and state compared to
our present situation.
This chapter will not discuss Loick’s attempt further, but will look at two
more radical approaches to the future of law. For, if one alternative is to save
law from violence (and Loick is not the first to attempt this), another alter-
native is to say that law, if it is to function as a means of social organisation,
can only do so as a violent force. In other words, if we want to leave violent
sovereign law behind we need to leave law behind as a social force as such.
This wager is even more radical than Loick’s. Whether it is more naive or
realistic than Loick remains to be seen.
Both Pashukanis and Agamben, from their differing theoretical and his-
torical perspectives, have formulated theories on the overcoming of the violent
reality of law in our present societies. But these hypothetical overcomings of
law have been formulated as requiring not just a new role for law in social
organisation as with Loick, but rather the end of law as a social instrument.14
Let us now turn to Pashukanis’s intervention in the Marxist tradition.

The apex of bourgeois law and its end

This analysis will not amount to a comprehensive discussion of Pashukanis’s
theory of law, but will instead focus on the question of law in communism.15 To
be able to discuss this aspect of his theory, what we could call the speculative
moment, we need to concisely describe his theory of law and then explain how it
lends itself to the idea that law will be extinguished in a future society.
The basic premise of Pashukanis’s theory is that law as such is based on eco-
nomic relations. But he was critical of the Marxist attempts up until his time to
regard law as a simple instrument of class rule. Instead of focusing only on this
aspect of state-mediated coercion, Pashukanis offered a theory that took as its
starting point what he considered the simplest legal relation, that of a contract
regulating the exchange of commodities. This gave rise to the designation
“commodity theory of law”, a phrase Pashukanis approved of.16 In the case of a

14 Loick refers extensively to Agamben as an important interlocutor in his work.

Pashukanis does not figure in the text, although other thinkers in the Marxist
tradition do.
15 For a more thorough account see Michael Head, Evgeny Pashukanis: A Critical
Reappraisal (Abingdon: Routledge, 2007). Also the use of Pashukanis by Mié-
ville, Between Equal Rights: A Marxist Theory of International Law.
16 It was Andrey Vyshinsky’s invention. See Head, Evgeny Pashukanis: A Critical
Reappraisal, 179.
 Minor law 79

worker and employer, the exchange is that of work against salary. This is the true
content of the legal relation according to Pashukanis:

Law in its general definitions, law as a form, does not exist in the heads
and the theories of learned jurists. It has a parallel, real history which
unfolds not as a set of ideas, but as a specific set of relations which men
enter into not by conscious choice, but because the relations of produc-
tion compel them to do so. Man becomes a legal subject by virtue of the
same necessity which transforms the product of nature into a commodity
complete with the enigmatic property of value.17

Pashukanis’s notion of law centres on what he perceives to be the peculiar

characteristic that distinguishes it “from every other social order in that it
comprises isolated, private subjects.”18 Persons have claims to rights and
assert them against others. This is different from other forms of “reg-
ulatory rules” of moral, aesthetic or utilitarian nature. “For Pashukanis,
private law was the ‘fundamental, primary level of law’.”19 It was the
ultimate basis for all other forms of law, including family law, criminal law
and constitutional law.
This also leads him to regarding everything other than private law in its
pure form as either a twisted form of private law thinking or as something
other than law. He disregarded public law as a secondary and derivative
phenomena. “The system of civil law is therefore characterised by simplicity,
clarity and completeness, while the theories of public law are replete with
constructs that are rigid, artificial and grotesquely one-sided.”20 The distinc-
tion of legal relations, as different from other social relations, is therefore a
result of the development of the capitalist economical order. The legal rela-
tion of private interests has at its core, and it reaches its apex in, bourgeois-
capitalist society.21
But while the intricacies of Pashukanis’s general theory of law are interest-
ing in themselves, we here need to turn to what it implied for law in a future
communist society. He does not offer any elaborate theory of law in com-
munism, since his main conclusion is that it will be extinguished:

17 Evgeny Pashukanis, The General Theory of Law and Marxism, 1980, available at
www.marxists.org/archive/pashukanis/1924/law/.
18 Ibid., chap. 3.
19 Head, Evgeny Pashukanis: A Critical Reappraisal, 179.
20 Pashukanis, The General Theory of Law and Marxism, 1980, chap. 3.
21 ‘Far from being a natural or eternal institution of human society, law was a
peculiar form that arose from definite commodity exchange relations that had
arisen historically at a certain stage of economic and social development and
would die away once that stage had passed.’ Head, Evgeny Pashukanis: A Critical
Reappraisal, 173.
80 Tormod Otter Johansen

Marx therefore envisioned the transition to developed communism, not

as a transition to new forms of law, but as the withering away of the legal
form in general, as the liberation from this inheritance of the bourgeois
age which the bourgeoisie was itself condemned to endure.

While this formed the end goal of revolution, the intervening period of soci-
alism might still need law because it would retain exchange in the sphere of
distribution— the buying and selling of goods would still prevail. These are at
the same time bourgeois and capitalist aspects of the socialist transition state,
under the dictatorship of the proletariat. Were class relations to be finally
abolished, laws and legal relations would no longer be needed or, perhaps,
even possible because private exchange would no longer take place.
Pashukanis imagines the end of law as a necessary outcome of the end of
bourgeois class society. Law as a form of social organisation has reached its
peak in capitalist society, where it has acquired its purest form. The demise of
bourgeoisie society also means the “withering away of law in general, i.e. the
gradual disappearance of the juridic element in human relationships”.22 The
Pashukanian path is therefore a promise of the realisation of communism as
an end of all law. This leaves law no role, not even as a nonviolent, non-
coercive form of organisation. In its place, there will still exist “regulation”,
but Pashukanis sharply distinguishes these technical rules from law.
Concerning other forms of social organisation, he simply rejects them as
being legal at all. Military units are subordinated to the will of the comman-
der; the Jesuit order is comprised of members fulfiling the will of the leader.
These forms of hierarchical social organisation therefore have “nothing in
common with the legal form”. Similarly, fully realised communism would be
a state of things where no private interests needed to assert their claims
against others. Therefore, the legal form would no longer be of any use. The
social organisation would then not be legal in nature. Instead of the govern-
ment of persons there would be the administration of things, as Engels for-
mulated it.23 In Pashukanis, this even amounts to a destruction of ethics,
since moral obligation only makes sense in a class society where the right of
one implies the obligation of another.24
It is an important discussion whether Pashukanis’s concept of law, or rather
the legal form, is too narrow. His dismissal of public law and state power as

22 Pashukanis, The General Theory of Law and Marxism, 1980, chap. 3.

23 Karl Marx and Friedrich Engels, Collected Works. Vol. 25, Anti-Dühring; Dia-
lectics of Nature (London: Lawrence & Wishart, 1987). See also Cercel, Towards
a Jurisprudence of State Communism, 92.
24 ‘Pure utilitarianism, striving to disperse the metaphysical haze which surrounds
ethical doctrines, leads to conceptualizing good and evil from the perspective of
harm and benefit. Thereby, of course, it simply destroys ethics, or rather tries to
destroy and transcend them.’ Pashukanis, The General Theory of Law and
Marxism, 1980, chap. 6.
 Minor law 81

more or less irrelevant for law as such, especially given the transitional Soviet
state, are problematic. An integral part of his law-transcending theory is a con-
ceptualization of the use that the proletariat must make of the legal form in a
transitional socialist phase. Law together with other aspects of bourgeois society,
such as morality and the state, will play a role before communism can be rea-
lised.25 The question of whether his conception of law or the legal form as
restricted to only those relations that are founded in exchange – and equally,
whether every form of law can be derived from such a concept of private law –
can definitely be discussed and critiqued.26 Further, whether the distinction
between the “law” of bourgeois society and the “regulation” of socialist society
holds water is key to interpreting the value of his theory. But for the purposes of
this text, it is not necessary to develop these aspects further. Pashukanis’s work
stands as a singular contribution in Marxist theory and in legal theory in general
in that it tries to account jurisprudentially for the argument that law could be
extinguished. It might be argued that the possibility, or in Pashukanis’s case the
promise, of the extinction of law is not more than a postulate in the theory. That
might be too harsh since there is a somewhat developed argument for why that
can and must be the case, at least inside the framework of Marxist thought. But
even if it mainly functions as a postulate of the theory, this still amounts to quite
a step compared to most theories of law that cannot even consider the end of law
as a possibility.27 We will now turn to a similarly radical theory, but one which
surprisingly combines a retained role for law in a coming society at the same
time as this role is completely transformed on an ontological level.

Destituent power and inoperativity

Law and its future is one of the many recurring and fragmentarily addressed
themes in Agamben’s oeuvre. The nexus of law and violent sovereign power
that is at the core of the modern state is a central question not only in the
whole Homo Sacer series but also in Agamben’s previous and ancillary texts.

25 Pashukanis, chap. 6.
26 ‘Pashukanis’ derivation of the legal form from the commodity form barred the
possibility of grappling with pre-capitalist and even post-capitalist varieties of law
and right.’ Igor Shoikhedbrod, ‘Estranged Bedfellows: Why Pashukanis Still
Charms Legal Formalists’, Legal Form, 15 June 2018, available at https://lega
lform.blog/2018/06/15/estranged-bedfellows-why-pashukanis-still-charms-legal-for
malists-igor-shoikhedbrod/.
27 In another study, I aim to pick up the threads of the notion that law could end
and develop them in a philosophical enquiry into what such an idea might actu-
ally mean. I would hesitate to mention a work in progress in print on the chance
it doesn’t materialise. And is it worth the reader’s attention to mention it? Inside
the discipline of law, the Scandinavian legal realism of the Uppsala School, cer-
tain radical neoliberals and anarchists on both the right and the left seem to be
where thought connected to this idea might be found. The other great well of
thought on the end of law is of course the theology of the Abrahamic religions.
82 Tormod Otter Johansen

In 2013, Agamben had reason to comment on his own attempts in a lecture

titled “What is a destituent power?”28
He describes the intention of the Homo Sacer project and its archeology of
politics as the attempt to shift “the very site of politics itself” and thereby move it
from the place where Aristotle, Hobbes and Marx had it situated. In section six of
the text, Agamben focuses on the concept of inoperativity, “an operation that
deactivates and renders works (of economy, of religion, of language, etc.) inop-
erative”. Inoperativity means the possibility to think of the human “as a being of
pure potentiality (potenza), that no identity and no work could exhaust”.29 This is
in stark contrast to the modern epoch, which is unable to think of inoperativity
except as the negation of work, of operativity. Inoperativity has still been con-
tained in different forms of exceptional activities such as the feast, which suspends
the productivity of the everyday.

But the feast is defined not only by what in it is not done, but primarily
by the fact that what is done—which in itself is not unlike what one does
every day—becomes undone, is rendered inoperative, liberated and sus-
pended from its ‘economy’, from the reasons and purposes that define it
during the weekdays (and not doing, in this sense, is only an extreme case
of this suspension). If one eats, it is not done for the sake of being fed; if
one gets dressed, it is not done for the sake of being covered up or taking
shelter from the cold; if one wakes up, it is not done for the sake of
working; if one walks, it is not done for the sake of going someplace; if
one speaks, it is not done for the sake of communicating information; if
one exchanges objects, it is not done for the sake of selling or buying.30

Inoperativity, then, stands for the possibility of doing what we always do, rather
than something else, but released from the economy in which it is usually caught.
Agamben describes this potential for making things inoperative as a destitution.
And furthermore, that this destitution could “furnish a paradigm for thinking
inoperativity as a model of politics”. The feast also contains other examples of
inoperative activities that Agamben mentions here and in other places: dance as
the inoperative use of the body, masks as the neutralisation of the face, and, not
least, the poem as the deactivation of the communicative function of language in
order to put it to a new use. “What the poem accomplishes for the potentiality of
speaking, politics and philosophy must accomplish for the power of acting.”
Here we are closing in on the future for law and the juridical. In contrast to
the constituent power that tries to establish a new order, “a violence that

28 It might be noted that this concise text has the potential to function as a prole-
gomena to the Homo Sacer project and Agamben’s thought as a whole.
29 Giorgio Agamben, ‘What Is a Destituent Power?’, transl. Stephanie Wakefield,
(2014) 32(1) Environment and Planning D: Society and Space 69.
30 Giorgio Agamben, Nudities (Stanford, CA: Stanford University Press, 2010), 69.
 Minor law 83

establishes and constitutes the new law”, Agamben suggests that we should aim
to think of a destituent power whose definition is the task of the coming politics.
Here Agamben chooses to develop the question of what destitution could mean
by grappling with the seminal text for the question of the future of law, Benja-
min’s “Critique of violence”.31 Benjamin interrogates what a breaking of the
sovereign law and its violence could mean, which is a new historical epoch based
“on the destitution (Entsetzung) of law with all the powers on which it depends,
and as they depend on it, therefore ultimately on the destitution of state vio-
lence”.32 Benjamin finds an example of such a destitution of law in the prole-
tarian general strike. This strike does not use the violence available in the legal
categories of the present relation between labourers and capitalists, but rather
inaugurates a new reality where law is completely transformed. This destitution
therefore would mean something close to the extinction of law that Pashukanis
suggests. Benjamin calls for a divine violence to end the mythical violence of the
sovereign power of the state and the current order.
But Agamben is even more aligned in his next example. Paul, in Cor-
inthians 15:24, argues that the relation between the messiah and the law is not
only that he will make law, together with all authority and power, inoperative.
The messiah will also conserve the law through this inoperative action. This
Aufhebung then preserves the law as much as it makes it inoperative by
‘deactivating its action with regard to sin’.33
In the remainder of his text Agamben connects this to his notion of a form-of-
life, “a life that can never be separated from its form, a life in which it is never
possible to isolate something like a bare life”, in other words, a life that is not
caught in the violent grip of law bound up in sovereign power.34 What might this
mean specifically for law and the juridical?35

31 This is also the central text for Loick, A Critique of Sovereignty. See also Loick,
‘Law without Violence’.
32 Agamben, ‘What Is a Destituent Power?’, 70. Translated as ‘suspension’ or ‘abo-
lition’ in other versions, see Walter Benjamin, ‘Critique of Violence’, in Peter
Demetz (ed.), Reflections: Essays, Aphorisms, Autobiographical Writings (New
York: Harcourt Brace Jovanovich, 1978), 300. Also Walter Benjamin, ‘Critique of
Violence’, in Marcus Bullock and Michael W. Jennings (eds), Walter Benjamin:
Selected Writings. Vol. 1, 1913–1926 (Cambridge: Harvard University Press,
2004), 251.
33 Agamben, ‘What Is a Destituent Power?’, 71.
34 This also forms the explicit and central theme of the final volume in the Homo
Sacer series, Giorgio Agamben, The Use of Bodies (Stanford, CA: Stanford Uni-
versity Press, 2015).
35 Even though these questions are by necessity intertwined, and concern a common core.
A clear example of this is the quote Steven DeCaroli has rescued from an impromptu
discussion in Greece, where Agamben connects the need of the form-of-life with the
need to avoid the constitution of a new law: ‘We have to stop thinking of any revolu-
tionary action as directed toward the constitution of a new juridical order. Benjamin
calls this pure violence, which is a violence that will never constitute a new juridical
order. You depose without restoring another. If you are really, strongly and clearly able
84 Tormod Otter Johansen

To expand on that we need to turn to another text, the second instalment

in the Homo Sacer series, State of Exception. Here Agamben attempts to
investigate the question Benjamin raises, which Agamben points out both
primitive Christianity and the Marxist tradition have also formulated:
“What becomes of the law after its messianic fulfillment?” Agamben refers
directly – although without any actual explication – to Pashukanis and the
Soviet debate as another formulation of the same question: “And what
becomes of the law in a society without classes? (This is precisely the debate
between Vyshinsky and Pashukanis.)”36 In his attempt to answer this,
Agamben turns to another, perhaps even more general, example of inop-
erative use, namely play:

One day humanity will play with law just as children play with disused
objects, not in order to restore them to their canonical use but to free
them from it for good. What is found after the law is not a more proper
and original use value that precedes the law but a new use that is born
only after it. And use, which has been contaminated by law, must also be
freed from its own value. This liberation is the task of study, or of play.
And this studious play is the passage that allows us to arrive at that jus-
tice that one of Benjamin’s posthumous fragments defines as a state of the
world in which the world appears as a good that absolutely cannot be
appropriated or made juridical.37

The law is thereby rescued from extinction; it is retained and even bears the pro-
mise of justice. Agamben points out in his reading of Benjamin that it is not this
activity that gives justice, rather it opens the possibility that we might arrive at
justice through the opening of a gate, as Benjamin writes. “The law—no longer
practiced but studied—is not justice, but only the gate that leads to it. What
opens a passage toward justice is not the erasure of law, but its deactivation and
inactivity—that is, another use of law.”38 Catherine Mills argues that the specific
choice of play is a way for Agamben to choose a middle path between endless
deferral, as in deconstruction, and eschatology, which purports the end of time as
such.39 The other alternative, that of letting law become extinct, as Pashukanis
suggests, would for Agamben threaten the rise of a new violent and sovereign law.
Agamben’s project has a much grander objective than the specific aspect
of the future of juridical structures and law I focus on. His main theme

to demonstrate the illegitimacy of the political order, in a way you are deposing it.’
Agamben, quoted in Steven DeCaroli, ‘What Is a Form-of-Life?: Giorgio Agamben
and the Practice of Poverty’, in McGloughlin (ed.), Agamben and Radical Politics, 226.
36 Agamben, State of Exception, 63.
37 Ibid., 64.
38 Ibid.
39 Catherine Mills, ‘Playing with Law: Agamben and Derrida on Postjuridical Jus-
tice’, (2008) 107(1) South Atlantic Quarterly 30.
 Minor law 85

concerns the consequences of our ontological status and the way we com-
port ourselves to existence as such, towards Being in the wake of Heidegger.
But the fact that both legal concepts, institutions and the often enigmatic
“law” itself plays such a recurring role in Agamben’s texts also points
towards the question of the future or end of law as fundamental in his phi-
losophical and ontological work.
I interpret Agamben’s account as a possible description of or argument
for the possibility of a change of the juridical through and beyond a revo-
lution, even if it would be of a different kind than the Marxist and anarchist
revolutionary programs and attempts from which he distances himself.40
The question of whether Agamben himself is a representative or adheres to
the possibility of a communist revolution is here in a way suspended. In that
sense, this text does not try to interpret his often enigmatic stance on issues
of political change in general and communism in particular. Instead, it tries
to use his post-juridical thought for the purposes of revolutionary
jurisprudence.
Agamben is, among other things, inspired by Benjamin’s formulations on
the “study of law” as a future use of law, the same template as Halacha, the
Judaic law that is the object of tradition and study. This activity of studying is
not described as primarily a practical tool for the communicative need of the
community to choose and legitimate collective action. Instead, law will still
exist in a sense similar to the Jewish example, in that it is studied, but without
any coercive power of other humans. As we have seen, Agamben even
describes this activity as playing, where the law is left as a discarded object
from a previous era, suitable for use as a toy. He likens law to many other
artifacts and activities from history that have been “profaned” – in other
words, put to a new use beyond their previous roles in religion, warfare or
law. This implies an even more extreme future for law than it being just non-
violent. It no longer fulfills any practical or utilitarian function, but is instead
released from any function beyond its use as an object of study, or play.
We now play with religious symbols, with left-over things and with pro-
faned rituals. Even these rituals in themselves contain elements of play at
their core.41 But what would it even mean to play with law as a disused
object? Aren’t law and the juridical anathema to playfulness or play? Perhaps,
this is conceivable because of the very possibility that law could be freed from
the apparatus of teleological action and become the object of study and play.
Even though the ontological shift that the coming community, the new forms-

40 He does that explicitly, see footnote 3 above.

41 In Karman Agamben attempts to locate the activity or the means without end.
His main example, established in a typical eclectic reading and Indo-European
etymology is that of dance, the acting that has no end that therefore ‘never settles
into a crimen, into a culpable and imputable act’. Giorgio Agamben, Karman: A
Brief Treatise on Action, Guilt, and Gesture, Adam Kotsko transl. (Stanford, CA:
Stanford University Press, 2018), 82.
86 Tormod Otter Johansen

of-life, or the inoperative destituent power must act on every apparatus that
our present world contains and is structured around, law is the most extreme
case. The catastrophe is, in Jessica Whyte’s terms, most acute in law and
therefore it harbours the greatest potential for redemption.42 If we can play
with law, or study it without it being applied, we can destitute anything and
everything.
The problem with Agamben’s suggestion that law could subsist after its
connection with sovereign violence is severed is perhaps simply that it seems
too hopeful, too messianic. This is not a strong argument against it, since the
structure of a messianic argument implies that not only major change but also
the most radical change thinkable is possible.
In any case, to develop the theme of law beyond revolution that I have
presented with the help of Pashukanis and Agamben, I will now sketch
another configuration of law in a post-revolutionary situation.

Minor law: beyond the hegemony of law

For Pashukanis’s central examples, private law transactions such as payments
or contract fulfilment, it is at least plausible that they would be exhausted in a
world without private property. Similarly, the coming community outlined by
Agamben is a world where legal contestation of rights loses its meaning, in
the sense that legal relations would not organise the relations between the
humans living in such a community.
While Pashukanis theorises inside the framework of a radical transforma-
tion of society, he still operates on an ontic level. Agamben suggests that a
transition freeing humans from sovereign power would be an ontological
shift, and at the same time it might not take the form of an all-encompassing
social event, but rather exist as a promise in every situation.
In the framework of this chapter it can be posited that we might find our-
selves, or that we might be able to realise, a world where sovereign, violent
legal power does not hold the hegemonic position as the main form or
enforcer of social organisation. In other words, where the guarantor of the
social forms of property, individual rights, wage labour, criminal law, market
relations and public administration is no longer the judicial system coupled
with the police. It seems obvious that most of these institutions would either
disappear, as might be the case with the private ownership of means of pro-
duction, wage labour and markets, or be radically transformed, as in the case
of the heterogeneous activities of education, care and other functions that
public administration now fulfills. Michael Stolleis has succinctly formulated
this crucial aspect of state theory, whether thinking inside a framework of
reforms of the current social order or from a revolutionary perspective:

42 Jessica Whyte, Catastrophe and Redemption: The Political Thought of Giorgio

Agamben (Albany, NY: State University of New York Press, 2013).
 Minor law 87

What our ancestors thought about [the state] and how they shaped it is
something we must understand at least in outline in order to decide what
it is we ourselves want to do in the state and with the state. If we decide
that we want to have as little as possible to do with the state and refuse to
become engaged on its behalf, we must answer the questions of who is to
protect us against violence; who is to be responsible for the services
necessary for living and for the conveniences we take for granted; who
will maintain transportation and communication systems; who will
finance universities, libraries, museums, and much else.43

The case of criminal law, but even more so the role of social law in the pro-
tection of children and other vulnerable persons, can function as a specific
focal point, since it seems to be one of the most problematic aspects of
thinking law beyond sovereign power. The case against all law has to face the
case of a child being severely mistreated. Even though this one case cannot be
a general argument for the legitimacy of juridical structures, it is challenging
to not see the need for societal responsibility of some sort. If the care of a
child needs to be taken on by the community through coercive force, it
necessarily implies the protection of rights, fair procedure and, in the end,
institutional violence as a necessary means. Leaving the same matter to a
simply moral organ, with no qualified recourse to force, does not seem more
appetising to most modern senses. This is Lenin’s position on the protection
of people in a nutshell:

We are not utopians, and do not in the least deny the possibility and
inevitability of excesses on the part of individual persons, or the need to
stop such excesses. In the first place, however, no special machine, no
special apparatus of suppression, is needed for this: this will be done by
the armed people themselves, as simply and as readily as any crowd of
civilized people, even in modern society, interferes to put a stop to a
scuffle or to prevent a woman from being assaulted.44

I do not find this attitude reassuring.

The general organisation of social life could probably survive on technical
rules or regulations and voluntary acts of following these structures. This is in
an important sense the implicit promise of communism, that the production
in the economy and social interaction would not need to rely on wage labour,
with its inherently coercive nature, or forced labour in any other form. Some
crimes will implicitly disappear, such as private property crimes, although

43 Michael Stolleis, Public Law in Germany: A Historical Introduction from the 16th to
the 21st Century, Thomas Dunlap transl. (Oxford: Oxford University Press, 2017), 9.
44 Vladimir Lenin, The State and Revolution, 1999 [1918], Lenin Internet Archive,
available at https://www.marxists.org/archive/lenin/works/1917/staterev/, chap. 1.
88 Tormod Otter Johansen

probably not crimes committed towards individual property, acts of sabotage

or the theft of common resources.
What should also be considered is the contingent nature of social struc-
tures and the potential for a multitude of different forms of social, juridical
and quasi-juridical forms of organisation. The width of possible ways of
human ordering, social organisation and dispute resolution cannot be eval-
uated in any depth here. It can however be claimed without exaggeration
that many actual and possible forms of such social order exist, and have
existed, where no law or legal order is present in the sense it is in con-
temporary Western society.
Simon Roberts suggests in his book Order and Dispute that the possible
forms of, and variation in, types of ordering structures for human social
conduct is great indeed. The anthropological literature contains a wide variety
of social structures for ordering social life and resolving disputes.45 That such
a plethora of non-legal forms of coordination and dispute resolution exist,
and have existed, makes it seems unnecessary and even naive to posit legal
orders and law as necessary components of human society. Whether large and
even global societal orders require law is another question, but it does not
seem a priori necessary that it is the case. This opens up the possibility to go
beyond a binary choice between society with law, with a legal order and jur-
idical structures, and societies without. Rather, a multitude of different com-
binations of legal, quasi-legal and non-legal forms for ordering and dispute
resolution are possible.
Pashukanis suggests a complete extinction of the juridical. Agamben in
turn suggests that law can survive without power, as an object of study or
play. And as we saw in the introduction, Loick suggests that it can exist as a
voluntary form of social organisation. I suggest that another possible config-
uration of the legal and non-legal is that the former could be extinguished in
part, profaned in part (made the object of study, play or voluntary commit-
ment) and developed or transformed in part. This tripartite structure will per-
haps on the outset look similar to contemporary societies, in that we live with
all three aspects of ordering and dispute resolution norms already. We resort
to the legal order and its violent guarantees, we act inside voluntary or non-
legal normative orders – etiquette and decency are the classical examples –
and we all know that legal rules and forms are sometimes extinguished, such
as formal inequality between the sexes or legal slavery. These extinguished
laws also form an important background for the legitimacy of the present
legal order, as both its precursor and its other, so to speak.

45 ‘Despite the wide range of organizational forms which may be found in small-
scale societies, the mechanisms for maintaining continuity and handling disputes
tend almost universally to be directly embedded in everyday life, unsupported by
a differentiated legal system.’ Simon Roberts, Order and Dispute: An Introduction
to Legal Anthropology, 2nd ed. (New Orleans, LA: Quid Pro Books, 2013), 15.
 Minor law 89

But the difference I have alluded to is that a post-revolutionary situation

where the state no longer forms the sovereign nexus of power would amount
to a situation where both proportions and the hegemony of these normative
orders is radically shifted. A shift from the present hegemony of law would
still amount to a radical shift. To go from a hegemonic and ever growing
judicialisation and its swelling body of law to a situation where law only sur-
vives in a minority position would be qualitatively different. Would law, in a
minor position, hold the promise of an emergence of new and more manifold
forms of social organisation?
It might not only mean the pragmatic and utilitarian decision to keep the,
by then, archaic form of legal violence, as a last resort against certain
crimes. It could be that the new relative position of criminal law, social law
for the protection of children, etcetera, might be kept, and would also qua-
litatively change these spheres of legal violence and rationality. In our pre-
sent situation the choice of a non-legal or nonviolent form of dispute
resolution or problem solution is seen as an exception to the normal course
of things.46 If emissions need to be reduced, children protected or the con-
sumer business expanded, the first call is for legislation. Or if not immediate
legislation, the threat that if other measures are not sufficient, legislation
will surely follow. Even in personal life and in civil society the legal hege-
mony prevails, where every political or social goal is communicated through
the language of rights or the legal responsibilities of the state. Conflicts with
neighbours are not always brought to court, but the threat of legal action is
implicitly or explicitly in the background.47
But it is possible to imagine the profanation of now violently guaranteed
rules of administrative activity into mere technical rules, followed voluntarily
by the participants in a joint venture. These rules now give the director gen-
eral or local bureau chief the mandate to decide what someone in the work-
place should do. These decisions are backed up by the threat of disciplinary
action or termination of employment, and in the extreme, by the general laws
of criminal liability. While the coercive aspects are relatively specific, they
could perhaps be severed from the more technical and practical “rules” that
organise the common endeavour.
This is different from criminal laws that directly have only a coercive or
violent element. If these elements were severed from the criminal justice
system, it is hard to see what would remain. Perhaps one could instead
imagine alternative or more transformed forms of activities, such as
reconciliation procedures. These share some of the same aims as criminal
justice – revealing truths about past events, morally condemning certain
actions, providing some sort of resolution for the parties involved – but

46 A historical reversal of the situation.

47 David Graeber, The Utopia of Rules: On Technology, Stupidity, and the Secret
Joys of Bureaucracy (New York: Melville House Publishing, 2015), 32.
90 Tormod Otter Johansen

without the main outcome of a criminal procedure, namely retribution in

form of a punishment. Reconciliation procedures look more different than
criminal justice when compared to other legally bound activities, such as
the heterogeneous forms of public or private administration or enterprises,
after purging the coercive element. On the other hand, it is hard to know
what schools, workshops, factories, hospitals, theatres or public transport
would look like after the abolition of wage labour and coercive dis-
ciplinary systems. Maybe the descendants of our courts will be materially
and aesthetically more similar to their forerunners than the universities
and dental clinics.
It is possible to imagine juridical reasoning, and a process that in most
regards is similar to the adjudication of a judge, without it being coupled with
violent enforcing. This is not least the modus operandi of the academic jurist
when in a dogmatic mode, or when an advocate general presents her sug-
gested judgment to the court.
I therefore argue that law might still be needed, though not in the non-
violent form Loick imagines, but rather in its specifically violent and coercive
form.
This might still leave some areas where violent law is deemed socially
necessary. But even when these minor, although important, areas are left
inside a legal order with courts, police and perhaps even prisons as enforcers,
we are still in a qualitatively different situation. Law might be contained, at
least in a political situation where law as violent coercion is no longer deemed
necessary or seen as the only option to enforce the political will of the com-
munity. Law will then be a true exception.
The profanation of law will therefore follow a broadly similar pattern to
the profanation of the religious. Many social patterns, rites and different
types of liturgical action from pre-modern times are now either secularised
into political forms within the state or left as minority and private forms of
activity within religious communities. But this does not mean that religion
as such is over. Even though Agamben’s profanation thesis is correct, it does
not mean, and he doesn’t seem to mean, that an era of religion is over.
Rather it is a shift of emphasis or primacy. Instead of being both primary
and suffused into every form of moral, scientific or legal argumentation,
religious belief and practices are either transformed into profaned alter-
natives, like the religious rite becoming a children’s game or Christian ethics
becoming human rights, or they simply take a minority position alongside
the now hegemonic secular forms of state ideology and practice.48 This does
not form a sequential order of distinct eras, of course, but rather over-
lapping structures, shifting throughout history. Whether religion as an
explicit political signifier is on the rise is an empirical question, and the “re-

48 Consider the a priori commitment to deism in natural science up until modern

times. This is a similar dynamic in the fields of ethics or law.
 Minor law 91

sacralisation” of politics could then be a reversal of the profanation of ear-

lier religious forms of political and social order.
The path I sketch suggests neither sudden nor gradual shifts. It does require
that radical changes happen, but the question of transformative periods, or
rather immediate communisation, is not given. However, it seems that con-
sidering the Soviet example in the light of the theoretical works of Pashuka-
nis, there is at least a question of the danger of using law and state violence in
a transformative period as a tool for effecting the social change that is the end
goal. To put it in juridical terms: could a court develop into a nonviolent
institution gradually, or could a police force gradually become noncoercive?49
Perhaps, but in institutions that both use violence as a means at their core and
constitute the bedrock of state power through their wielding of the monopoly
on violence, it seems hard to imagine. The transformation of a school that
now has the legal right to demand pupils to attend, as just one aspect of the
violence infused in that particular institution, into a voluntary enterprise
where attendance is not forced, does not seem out of reach.50
The profanation of law does then mean that law would start to decline in
importance, and that successively fewer and fewer spheres of human activity
would be ordered through law backed by coercion and violence. This might
seem in the abstract to be a minor shift, just another choice of coordinating
structure or organisation. But considering the trajectory contemporary society
is on it would actually amount to a significant change. If any contemporary
examples of social activities that have become less juridified can be put for-
ward, I dare to say that they are the exceptions that prove the rule. We live in
the epoch of law and whether we are at its peak or its penultimate moment we
still do not know.

49 I have learned anecdotally that the Kurdish Rojavan government police force
Asayish has the aim that all citizens should be provided with police training, with
the ultimate goal of dissolving the police force and replacing it with self-managed
security by the citizens themselves. Dissolving the police by making everyone a
potential police officer.
50 The interconnected aspect of schooling to the reproduction of the work force and
the indoctrination of work ethic and societal ideology are still problematic and
critical factors. Compare to Ivan Illich, Deschooling Society (London: Marion
Boyars, 2002).
Chapter 5

The exception of the norm in the

Third Reich
(Re)reading the Nazi constitutional state of
exception
Simon Lavis

Introduction: permanent (Nazi) state of exception?

In historiography and jurisprudence, Nazi Germany is the place where the
exception remains the exception and the extreme situation of the Holocaust,
precisely because of its emblematic status within the Third Reich, is the very
thing that alienates Nazi Germany from the Rechtsstaat and the rule of law.
However, focusing deliberations about the state of exception on the aporia of
the Holocaust risks reinforcing the perception that the Holocaust, and there-
fore Nazism as a whole, exists outside of the ‘normal’ legal system as a
manifestation of lawlessness – a site of ‘non-law’. This, in turn, asserts a point
of rupture between Nazi ‘law’ and ‘normal’ law, which is philosophically
problematic and does not fully capture the historical nature of the Nazi state.1
Instead, to understand the move from law in the ‘ordinary’ Nazi state to ‘law’
as genocide it is necessary to interrogate the juxtaposition of the abyss and
the legal normal.
The boundary between law and non-law, the norm and exception, is
represented in a number of ways in the Nazi state and surrounding litera-
ture. It is a temporal boundary between pre-Nazi law in the Rechtsstaat,
under the Weimar Constitution, and Nazi rule following the takeover of
power, which is commonly characterised as lawless, particularly in influen-
tial studies.2 It is a spatial boundary between sites and institutions where the
normative, legal state continued to operate, and those, such as the camp
system, used to implement the Holocaust, where arbitrary, prerogative
power is considered to have dominated.3 It is also a theoretical boundary

1 Simon Lavis, ‘The Distorted Jurisprudential Discourse of Nazi Law: Uncovering

the “Rupture Thesis” in the Anglo-American Legal Academy’, (2018) 31(4)
International Journal for the Semiotics of Law 745.
2 See, for example, Franz Neumann, Behemoth: The Structure and Practice of
National Socialism 1933–1944, 2nd ed. (London: Frank Cass & Co., 1967).
3 See Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship
(New York: Octagon Books, 1969 [1942]), although Fraenkel did characterise the
prerogative state as part of the broader legal system.
 The exception of the norm in the Third Reich 93

between what constitutes valid law and what does not.4 The state of excep-
tion, as the juridical response to a state of emergency, involves crossing the
threshold between normal and exceptional legal situations, lawfulness and
lawlessness, and so its examination has potential to illuminate this proble-
matic zone in the history of Nazi legality. This chapter, therefore, is con-
cerned with how contemporary theories of the state of exception may be
used to interrogate and understand the boundary between the two sides of
law in the Third Reich. In particular, it seeks to revisit Giorgio Agamben’s
work on the state of exception to establish what of value it can offer histor-
ians and theorists of law in Nazi Germany; how it can help us to read the
juridical aporia of the Third Reich.
The Third Reich is intimately connected to Agamben’s Homo sacer project
and specifically his study of the state of exception.5 Agamben relies heavily on
the Nazi use of the state of exception to support his claims of a ‘zone of
indistinction’ between fact and law. He locates this zone spatially in the ‘camp’,
and specifically the Nazi concentration camp, reading Auschwitz as the para-
digmatic example: ‘precisely the place in which the state of exception coincides
perfectly with the rule and the extreme situation becomes the very paradigm of
everyday life’,6 and ‘the hidden paradigm of the political space of modernity’.7
Agamben is also heavily influenced by Carl Schmitt’s writing on the state of
exception, where Schmitt notoriously became a supporter of and implicated in
the Nazi regime from its takeover of power in 1933.8
These connections invite a re-examination of the role of the exception in
the Nazi legal system because of the history-theory nexus at play in both
historical and jurisprudential narratives of Nazi law and Agamben’s own
theory. First, prevailing narratives of rupture and exceptionalism within
scholarship about Nazi law, including the portrayal of the Third Reich as a
fundamentally lawless state,9 and difficulties with properly framing Nazi law

4 See the Hart-Fuller debate: H. L. A. Hart, ‘Positivism and the Separation of Law
and Morals’ (1958) 71(4) Harvard Law Review 593; and Lon Fuller, ‘Positivism
and Fidelity to Law: A Reply to Professor Hart’, (1958) 71(4) Harvard Law
Review 630.
5 See especially the initial trilogy: Giorgio Agamben, Homo Sacer: Sovereign Power and
Bare Life, Daniel Heller-Roazan transl. (Stanford: Stanford University Press, 1998);
Remnants of Auschwitz: The Witness and the Archive, Daniel Heller-Roazan transl.
(New York: Zone Books, 1999); and State of Exception, Kevin Attell transl. (Chicago,
IL: University of Chicago Press, 2005).
6 Agamben, Remnants of Auschwitz, 113.
7 Richard Ek, ‘Giorgio Agamben and the Spatialities of the Camp: An Introduc-
tion’, (2006) 88 Geografiska Annaler: Series B, Human Geography 363, 368.
8 See, for example, Carl Schmitt, ‘The Führer Protects the Law: On Adolf Hitler’s
Reichstag Address of 13 July 1934’ in Anson Rabinach, Sander Gilman (eds),
The Third Reich Sourcebook (Berkeley, CA: University of California Press, 2013).
9 See David Fraser, Law after Auschwitz: Towards a Jurisprudence of the Holo-
caust (Durham, NC: Carolina Academic Press, 2005); Simon Lavis, ‘Nazi Law
as Non-law in Academic Discourse’ in Stephen Skinner (ed.), Ideology and
94 Simon Lavis

as a legal-theoretical enterprise, raise questions about whether Agamben’s

notion of a ‘zone of indistinction’ is an aid or a hindrance to a better under-
standing of Nazi legality. Does the positing of a theoretical, juridical space-
between help to clarify the effective interpretation of the Nazi use of law or
only douse it further in confusion? Second, Agamben’s treatment of the his-
toriography of the Third Reich (and of history in general) has been heavily
criticised, raising questions concerning how helpful the Nazi example is for
supporting Agemben’s theory, and (again) how useful this model of the state
of exception is for interpreting Nazi law.
This chapter evaluates how, notwithstanding criticisms, Agamben’s state of
exception helps us to interpret the empirical realities of exceptionality in the
Nazi context that animates his concept. In light of this line of inquiry, it will
make the argument that, while many of the criticisms of Agamben’s treatment
of Nazi history and instrumentalisation of the ‘Auschwitz’ paradigm are
valid, his state of exception theory does help in two specific ways to further
our understanding of the Nazi legal system. First, the collapse of the oppo-
sitions between law and fact into a zone of indistinction draws attention to
the point where the two elements of Ernst Fraenkel’s dual state collide,
enabling us to develop our understanding of how the normative and pre-
rogative states co-existed and were entwined in the Third Reich. The moment
of political decision-making that is inherent in every legal decision, addressing
which and how normative legal rules apply to a given set of facts, crucially is
a moment of exception simultaneously within and without the law, which
collapses the distinction between the exception and the (legal) rule. This
moment was exploited in the Third Reich as increasing discretion was carved
out by the decision-maker in each instance, to the point where the legal norm
pursuant to which prerogative decisions were taken was itself determined by
its discretionary form. Discretion, it might be argued, was the defining feature
of the prerogative state, but this was enabled in law by the fundamental norm
of the Führerprinzip (leader principle), and Agamben’s theory assists us in
elucidating the connection between prerogative power and its normative, jur-
idical underpinnings.
Second, the state of exception helps to give legal-theoretical form to Ian
Kershaw’s influential explanatory historical concept ‘working towards the
Führer’.10 The historical reality of the Führerprinzip as the controlling norm
of Nazi rule, and dynamic policy radicalisation based on a dualistic relation-
ship between the leadership and the lower ranks of the Nazi movement,
which is effectively encapsulated by Kershaw’s concept, can be understood
juridically as the dispersed exercise of sovereign power. While Agamben’s

Criminal Law: Fascist, National Socialist and Authoritarian Regimes (London:

Hart, 2019).
10 Ian Kershaw, ‘“Working Towards the Führer.” Reflections on the Nature of the
Hitler Dictatorship’, (1993) 2(2) Contemporary European History 103.
 The exception of the norm in the Third Reich 95

state of exception, adapted from Schmitt, problematically envisages a unified

sovereign, this focus on sovereign power may be modified with reference to
the exception-from-below11: the idea that sovereign decision-making can be
understood as dispersed among a wide range of lower-level actors within the
system. In Nazi Germany, despite the symbolic and concrete significance of
Hitler as Führer, it is now well established that in many spheres the dynamic
momentum of the system was enabled by a willingness and structural capacity
for ‘working towards the Führer’. This is illustrated by the example of the
development over time and space of the concentration camp system, which
was as reliant on local initiative and energy from below as it was on direct
instruction from above.12 This both exposes the problem with focusing atten-
tion in relation to the exception on a single sovereign decision-maker and
further blurs the lines between the exception and the norm, such that in the
Third Reich it becomes very difficult to tell the difference between the two.
Through this, it is possible to obtain a clearer idea of how decisions, which
may otherwise appear to persist outside of the legal system, could be seen to
take juridical form in the Third Reich.
In order to advance its arguments, the next section of this chapter will
briefly examine the juridical aspects of the Nazi takeover and consolida-
tion of power to reveal the historical construction of the Nazi exception
and explore how the theory of the state of exception has been used to
interpret this. Following that, it will set out some of the criticisms of
Agamben’s theory of the state of exception, particularly in terms of its use
of Nazi history, with a view to evaluating the validity of these criticisms
and isolating those features of his theory it may be fruitful to explore
further. It will then consider in more detail two ways the state of exception
may be applied to the Third Reich in a way that is theoretically useful and
takes into account the historical nature of the Nazi state. First Agamben’s
zone of indistinction will be used to interrogate Fraenkel’s dual state
model of the Third Reich. Then the usefulness of the notion of sovereignty
as dispersed rather than singular and unified, with reference to Kershaw’s
idea of ‘working towards the Führer’, will be considered. Finally, it will
conclude by returning to the theory of the state of exception to determine
what may be salvaged from it in light of the foregoing discussions.
The idea of this research is certainly not to legitimise the Nazi regime, nor
give any credence to the often outrageous norms, principles and outcomes
that came to characterise its legal system and extra-legal conduct, but to

11 Roxanne Doty, ‘States of Exception on the Mexico–U.S. Border: Security,

“Decisions,” and Civilian Border Patrols’, (2007) 1 International Political Sociol-
ogy 113.
12 See Jane Caplan, Nikolaus Wachsmann (eds), Concentration Camps in Nazi Ger-
many: The New Histories (London: Routledge, 2010).
96 Simon Lavis

achieve two things. First, to understand better how and why Nazi law
achieved contemporary legitimacy inside and outside of the Third Reich
taking into account the necessary degree of consensus now accepted by his-
torians to have been essential for the survival of the regime, alongside the
undeniable terror and coercion.13 Second, to explore further how to theorise
the relationship between Fraenkel’s observed normative and prerogative states
in the Third Reich within a legal schema – to try to understand the nature of
Nazi authority as law. This is not, as has been said, to lend Nazism any value
that might be associated with the law, or at least the rule of law (which the
Nazis certainly rejected), but to try to understand how law operates in the
transformation of regimes such as Nazi Germany.

Constructing the Nazi exception

The history of the Nazi invocation of the exception is, initially at least, a
straightforward one to tell. The constitutional story of the Nazi takeover and
consolidation of power in Germany from 1933, pursuant to the provisions of
the Weimar Constitution, has been narrated many times by historians and is
fairly well understood, so what follows is only a very brief account of how the
exception initially took legal form in the historical circumstances of the Nazi
consolidation of power.
Article 48 of the persisting Weimar Constitution gave the Reich president
broad powers to ‘take such measures as are necessary to restore public safety
and order’, including temporarily suspending fundamental civil rights, ‘if the
public safety and order in the German Reich are considerably disturbed or
endangered’.14 By the time Hitler ascended to the role of Reich chancellor on
30 January 1933 (appointed by the president pursuant to Article 53 of the
Constitution), Article 48 had already been increasingly used by President Paul
von Hindenburg between 1930 and 1932 to rule by legislative decree in the
face of majority opposition in the Reichstag parliament to successive, short-
lived governments (also propagated by the president’s Article 25 power to
dissolve the Reichstag for new elections). Once Hitler had persuaded Hin-
denburg to grant a further dissolution of the Reichstag for new elections in
order to secure majority support for his new government, emergency powers
were used to issue the Decree for the Protection of the German People on 4
February 1933. This law was used to constrain the press and ban opposition
meetings ahead of the forthcoming election,15 which took place on 5 March
1933. Subsequently, the more notorious Reichstag Fire Decree (Decree for the

13 See Nathan Stoltzfus, Hitler’s Compromises: Coercion and Consensus in Nazi

Germany (New Haven, CT: Yale University Press, 2016).
14 Article 48, Weimar Constitution. The Constitution of the German Reich / August
11, 1919 / Translation of Document 2050-PS / Office of U.S. Chief of Counsel.
15 Ian Kershaw, Hitler 1889–1936: Hubris (London: Allen Lane, 1998), 439.
 The exception of the norm in the Third Reich 97

Protection of the People and State of 28 February 1933) utilised the Article
48 emergency provisions to suspend indefinitely key basic rights enshrined in
the constitution. It also enabled the Reich government to override the powers
of the German states (Länder). This decree is considered foundational to the
constitution of the Third Reich. Michael Bazyler notes that it ‘was never
abolished during Nazi rule. In effect, Hitler ruled for the next twelve years
under what amounted to martial law’.16 In Ian Kershaw’s view, this ‘hastily
constructed emergency decree amounted to the charter of the Third Reich’.17
Subsequently, however, on 24 March 1933, the passage of the Law to
Remove the Distress of the People and the State (the Enabling Act) amen-
ded the Weimar Constitution to allow laws to be passed by the executive
government without engaging the legislature, including laws that deviated
from the constitution itself (within certain limits), thereby dissolving the
distinction between administrative measures and ordinary law.18 This was
not passed using the Article 48 emergency powers or previously enacted
emergency legislation, but pursuant to the otherwise ordinary Article 76
constitutional amendment powers, requiring a two-thirds majority of the
Reichstag to assent to amend the constitution. It was, therefore, not strictly
a formal part of the state of exception, but was made possible by the factual
consequences of previous emergency legislation; for example, the impact of
the 4 and 28 February decrees on the composition of the Reichstag follow-
ing the March 1933 election.
The Enabling Act explicitly left the powers of the Reich president untouched
(Article 2), but this obstacle to total power was removed on the event of Hin-
denburg’s death on 2 August 1934, with the passage of the Law Concerning the
Head of State of the German Reich, dated 1 August 1934. This combined the
offices of chancellor and president and made Hitler the Führer and Reich
chancellor, including supreme commander of the armed forces. This law, of
formally questionable constitutional status, was affirmed by plebiscite on 19
August 1934.19 It was an exception within the exception to the extent that it fell
outside of the provisions of both Article 48 and the Enabling Act. It was

16 Michael Bazyler, Holocaust, Genocide, and the Law: A Quest for Justice in a
Post-Holocaust World (Oxford: OUP, 2016), 6. [Emphasis added]. Martial law
generally refers to the control of the state by military – as opposed to civilian –
forces in an emergency; the suspension of the law to ensure a return to the law. In
English law, ‘neither more nor less than the will of the general who commands
the army. In fact, martial law meant no law at all’; Duke of Wellington, 1851,
quoted in Leon Radzinowicz, A History of English Criminal Law and its Admin-
istration from 1750. Volume 4: Grappling for Control (London: Stevens & Sons,
1968), 143–144.
17 Kershaw, Hubris, 459.
18 Peter Caldwell, ‘National Socialism and Constitutional Law: Carl Schmitt, Otto
Koellreutter, and the Debate over the Nature of the Nazi State, 1933–1937’,
(1994) 16 Cardozo L. Rev. 399, 413.
19 Kershaw, Hubris, 524–525.
98 Simon Lavis

arguably, therefore, in Schmittian terms a moment of constituent power.20 At

this point Hitler was ‘institutionally unchallengeable, backed by the “big bat-
talions” adored by much of the population. He had secured total power.’21
From this brief account we see that both legally constructed normative and
emergency executive powers were utilised by President Hindenburg under
Hitler’s influence, and subsequently by Hitler himself, in a way that led to the
undermining of the Weimar Constitution and the Nazi consolidation of
power. In terms of the theory of the exception, there are different ways of
understanding the significance of the use of emergency powers in this period,
depending on whether one adopts a conventional, Schmittian or Agambenian
view of the relationship between law and fact.
A conventional approach, which upholds the distinction between the law
and the exception and emphasises the former as the normal situation, and
represents the orthodox interpretation of the Nazi state, sees the initiation of
the exception as the undermining of the legal and constitutional order.
According to this, the Nazis exploited the Article 48 emergency powers to
consolidate their grip on power, constructing a permanent state of exception
through the use of increasingly quasi-legal and extra-legal measures. While
shadows of the pre-existing legal system remained, much of Nazi rule in areas
that mattered most to the leadership (e.g. racial policy) took place within an
essentially lawless prerogative state. It was situation of fact unrelated to the
law; Bazyler’s twelve years of martial law.22 The state of emergency, initially
constituted by legal provisions was abused to enable the regime to act on the
basis of an enduring suspension of the legal order. On this interpretation, the
Reichstag Fire Decree was Kershaw’s ‘charter for the Third Reich’ precisely
because it suspended key aspects of the constitution, but was not a constitu-
tion as the constitution itself was now in abeyance.
A Schmittian approach, by contrast, holds that norm and exception main-
tain a relationship to one another. It places more emphases on the primacy
and juridical significance of the exception in making possible the normal
constitution, and the importance of the sovereign who is not subject to but
stands in relation to the normative legal order because of its power to decide
on the existence, scope and nature of the exception.23 In this way, ‘Schmitt’s
understanding of the state of exception is not quite a legal black hole, a jur-
idically produced void. Rather, it is a space beyond law, a space which is
revealed when law recedes, leaving the state, represented by the sovereign, to
act’.24 In Schmitt’s writing the constitutional exception can take two forms:

20 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty,

George Schwab transl. (Chicago, IL: University of Chicago Press, 2005 [1922]).
21 Kershaw, Hubris, 524–526.
22 See fn 16 above.
23 See Schmitt, Political Theology.
24 David Dyzenhaus, ‘Schmitt v. Dicey: Are States of Emergency Inside or Outside
the Legal Order?’, (2006) 27(5) Cardozo Law Review 2005, 2015.
 The exception of the norm in the Third Reich 99

commissarial dictatorship and sovereign dictatorship, and in both instantia-

tions ‘the juridical order is preserved even when the law itself is suspended’.25
In a commissarial dictatorship,

although the commissarial dictator acts outside the law, their actions
retain a connection to the legal order in two ways: the existing constitu-
tion is not abolished but temporarily suspended; and the terms of its
suspension are regulated by ‘norms of the realisation of law’.26

Here the constitution is suspended in order to preserve the constitution; the

law ‘remains in force and is regulated by “techno-practical rules” that derive
from that legal order’.27
In a sovereign dictatorship, ‘the state of exception signifies the exercise of
“constituent power”: in effect, it is a moment where no constitution or law
applies other than the sovereign decision itself ’.28 It is

a revolutionary organization that aims to overthrow the existing legal order

and produce the conditions in which a new constitution can be created. A
sovereign dictatorship thus acts ‘outside’ the norms of the law because, by
definition, it cannot be regulated by an existing constitution.29

In this form a connection to the juridical order persists because ‘the law exists
in the “minimal form” of an actually existent constituent power, which has
not yet achieved a formal existence as a constituted legal system’.30
The Article 48 provisions in the Weimar Constitution naturally make no
mention of using the emergency measures to reshape the constitution itself,
referring instead to the restoration of public safety and order and the temporary
suspension of selected fundamental rights. However, whatever the intentions of
President Hindenburg in invoking Article 48 in February 1933 (and on prior
occasions), Hitler made it clear that the Nazis intended to use constitutional
methods to obtain power, not to restore the constitution, but rather to achieve
the aim of entirely re-constituting the state to conform to the Nazi vision.31

25 Stephen Humphreys, ‘Legalizing Lawlessness: On Giorgio Agamben’s State of

Exception’, (2006) 17(3) EJIL 677, 680.
26 McLoughlin, ‘The Fiction of Sovereignty and the Real State of Exception:
Giorgio Agamben’s Critique of Carl Schmitt’, (2016) 12(3) Law, Culture and the
Humanities 509, 514–515.
27 Ibid., 515.
28 Humphreys, ‘Legalizing Lawlessness’, 680.
29 McLoughlin, ‘The Fiction of Sovereignty’, 515.
30 Ibid.
31 See Hitler, September 1930, quoted in Jeremy Noakes, Geoffrey Pridham, Nazism
1919–1945, Volume 1: The Rise to Power 1919–1934 (Exeter: University of Exeter
Press, 1998), 90. See also Peter Caldwell, ‘National Socialism and Constitutional
Law’, 399.
100 Simon Lavis

Schmitt’s distinction between the commissarial and sovereign forms of

exceptional dictatorship is not straightforward to apply to the facts of the
Nazi takeover as, while constitutional emergency measures were used to
create the exception, a largely ordinary law was used to begin to construct a
new, Nazi constitution. The Reichstag Fire Decree appears, on the face of it,
to be a commissarial instrument; a temporary delegation of extraordinary
power to defend the state against acts of violence and restore public safety
and order, using the extant constitutional state of emergency powers. The
Nazis’ explicit intentions in relation to the state and constitution, and their
apparent manufacturing of the attack on the Reichstag building that imme-
diately brought about the decree, however, suggest it was used by Hitler as a
step towards sovereign dictatorship, allowing the conditions to be created in
which a new constitution could be forged. Nevertheless, this decree was the
instrument that suspended much of the constitution, but not, legally at least,
the instrument pursuant to which the state was shaped according to the
Nazi vision.
The March 1933 Enabling Act represents a clearer manifestation of
sovereign dictatorship, even though it was passed using the ordinary con-
stitutional amendment powers and with the consent of the legislature, albeit
somewhat neutered in its opposition by violence, intimidation and the
impact of preceding, exceptional legal measures. This instrument changed
the way ordinary positive laws could be made and largely exempted them
from pre-existing constitutional limitations, thereby underpinning a new
Nazi constitutional framework for the state. Once subsequent laws are taken
into account, including the Law Against the Founding of New Parties of 14
July 1933 (passed using the cabinet’s Enabling Act powers), which made
Germany a single-party state, and the aforementioned Law Concerning the
Head of State of the German Reich, the Nazi exception may be more clearly
viewed as a sovereign dictatorship, as total power under a new constitu-
tional order was achieved. It is not, however, a simple case of the sovereign
exploiting the powers bestowed by a commissarial exception to establish a
sovereign dictatorship, both because the emergency powers were not directly
used to fashion a new constitutional order and, if there was one locus of
sovereign power, until August 1934 it was President Hindenburg rather than
Chancellor Hitler.
The temptation, which also leads to the description of the Reichstag Fire
Decree as a charter of the Third Reich, is to view the twelve years of Nazi
rule as an extended and exploited form of commissarial exception; an excep-
tion initially constituted by the law, which goes rogue. According to this
model, because the Nazis ruled largely by individual decrees and no new
codified constitution was promulgated, the legal basis of the Nazi state was
the suspension of the existing constitutional order: the removal of rights and
liberties and the undermining of the independent authority of the Länder. It
was the instrumental, ad hoc and decisionistic rule of the sovereign Führer,
 The exception of the norm in the Third Reich 101

lacking any coherent constitutional basis or underlying legal principles.32 This

rule, for some, becomes so arbitrary and far removed from legal justification
that it was essentially lawless. However, this view is problematized not only by
the Nazis’ own constitutional and ideological logic and attempts by Schmitt
and others to rationalise the nature of the Nazi constitution, but also the
normative content of Nazi laws and their continuing use up to and including
in the Holocaust.33
A preferred Schmittian jurisprudential interpretation is to see the con-
stitutive legal measures from the Enabling Act to the August 1934 law as an
effective charter for the Third Reich. On this reading, the Nazis tore down the
constituted power represented in the Weimar Constitution, and exercised the
(allegedly but questionably supported) constituent power of the polity in a
moment in which only the sovereign decision of the Führer existed, which
then took shape in the form of a new Führer order. Nevertheless, this inter-
pretation presents a number of challenges. First, it requires us to take Nazi
(legal) ideology seriously, to assert that the Nazi leadership had in mind more
than the instrumental wielding of absolute political power under the cover of
a pseudo-legal cloak; that there was some form of coherence between ideol-
ogy and legal principle. Second, even accepting this, the Nazi legal ideology,
in the form of the Führerprinzip, rendered supreme the actions of the Führer
as the direct manifestation of the völkisch will of the people, so it is a chal-
lenge to differentiate meaningfully in the Nazi context between arbitrary
decisionism and a newly constituted state. This also makes it difficult to con-
ceptualise Nazi rule theoretically with respect to the state of exception. In
either case, however, Schmitt’s approach emphasises the juridical nature of the
exercise of sovereign power in the realm of the exception, which always per-
sists in relation to a normal constitutional order, countering the view that it is
a legal black hole, an essentially lawless space.
Agamben’s approach to the exception addresses directly the challenge pre-
sented by the realisation that the Nazi exception is not entirely constituted by
the suspension of the ordinary law, nor does it explicitly create a new con-
stitutional order, and nor is it entirely lawless; so it does not conform neatly
to either conventional or Schmittian models of the state of emergency.
Agamben builds on Schmitt’s insights into the role of the sovereign and the
juridical nature of exceptional power, but interrogates more closely the border

32 See Neumann Behemoth. Cf. Simon Lavis, ‘Nazi Law as Pure Instrument: Nat-
ural Law, (Extra-) Legal Terror, and the Neglect of Ideology’ in Michał Gałȩdek
and Anna Klimaszewska (eds), Modernisation, National Identity, and Legal
Instrumentalism: Studies in Comparative Legal History. Volume II: Public Law
(Leiden: Brill, 2019).
33 See David Fraser, ‘Criminal Law in Auschwitz: Positivism, Natural Law and the
Career of SS Lawyer Konrad Morgen’ in Stephen Skinner (ed.), Ideology and
Criminal Law: Fascist, National Socialist and Authoritarian Regimes (London:
Hart, 2019).
102 Simon Lavis

between the norm and the exception and finds both the conventional and
Schmittian interpretations ultimately unsatisfactory for illuminating this
boundary. He questions how the legal order can contain a lacuna unrelated to
law, but also how the suspension of the law can be contained within it. This
leads to his determination that ‘the state of exception is neither external nor
internal to the juridical order, and the problem of defining it concerns pre-
cisely a threshold, or a zone of indifference, where inside and outside do not
exclude one another but rather blur with each other’.34
For Agamben it is the very case of Nazi Germany that illuminates the zone
of indifference between the inside and outside of the law and renders Schmitt’s
analysis of the exception inadequate because it confounds the categories of
commissarial and sovereign dictatorship and the way Schmitt conceptualises
the relationship between the rule and the exception. Agamben asserts that in
1933, ‘Germany found itself technically in a situation of sovereign dictator-
ship, which should have led to the definitive abolition of the Weimar Con-
stitution and the establishment of a new constitution’,35 but this did not
occur. Instead, the Nazi regime ‘allowed the existing constitution … to subsist
and … placed beside the legal constitution a second structure, often not leg-
ally formalized, that could exist alongside the other because of the state of
exception’,36 thereby conflating the rule and exception: ‘this confusion
between the exception and the rule was precisely what the Third Reich had
concretely brought about, and the obstinacy with which Hitler pursued the
organization of his “dual state” without promulgating a new constitution is
proof of it’.37
According to Agamben, Schmitt’s theory does not account for this situa-
tion; ‘the machine can no longer function … the rule, which now coincides
with what it lives by, devours itself ’38. As McLoughlin states:

By indefinitely suspending the law, the Nazi party produced a ‘normal’

constitutional structure characterized by the profound legal indetermi-
nacy of the emergency situation … . Once emergency and normality,
exception and law, are rendered absolutely undecidable, the sovereign is
‘no longer capable of performing the task that Political Theology
assigned to it’: that of distinguishing between exception and law on the
basis of a distinction between emergency and normality.39

In light of this, Agamben collapses the distinction between law and exception
and eschews the relationship between the legal and extra-legal in the

34 Agamben, State of Exception, 23.

35 Ibid., 58.
36 Ibid., 48 [Emphasis added].
37 Ibid., 58.
38 Ibid.
39 McLoughlin, ‘The Fiction of Sovereignty’, 518.
 The exception of the norm in the Third Reich 103

exception, so ‘[e]very fiction of a nexus between violence and law disappears

here; there is nothing but a zone of anomie, in which a violence without any
juridical form acts’.40 Agamben, with reference to Walter Benjamin, shifts the
focus slightly away from the law, as ‘while Schmitt harnesses the power of the
exception back to the juridical order, Benjamin releases that power into a new
politics beyond law and beyond the state’,41 but with purportedly much more
radical implications for both law and politics than are propounded by the
conventional approach.

Agamben’s Nazi problem

There is ostensibly an opportunity with Agamben’s focus on interrogating the
border between norm and exception for enhancing our legal theoretical and
legal historical understanding of the role of the exception in the Third Reich,
and consequently of Nazi law and its implications for the modern state.
However, Agamben is not without his detractors in this area. Indeed, sig-
nificant disciplinary and methodological differences mean that major histor-
ians of Nazi Germany have not engaged with Agamben’s philosophical
writings or, where they have, it is often via a single intervention about Rem-
nants of Auschwitz. Nevertheless, there are some scholars who have critiqued
Agamben’s work. This section will outline and address some key criticisms of
Agamben’s representation and treatment of the Third Reich in his writing.
We have seen that Agamben’s chief concern with Schmitt’s theory of the
exception is that his efforts ‘amount to a denial of the existence of an
extralegal reality: the existing “juridical order” becomes total’.42 Agamben
uses the Third Reich to explain and illustrate the challenge Schmitt faces;
the blurring of fact and law in Nazi Germany: ‘Not only is the law issued by
the Führer definable neither as rule nor as exception and neither as law nor
as fact. There is more: in this law, the formation of a rule … and the
execution of a rule … are no longer distinguishable moments’.43 So, for
Agamben, in this situation the fiction on which the relationship between the
law and the exception is based becomes unsustainable, with catastrophic
consequences. The state of exception

is founded on the essential fiction according to which anomie … is still

related to the juridical order and the power to suspend the norm has an
immediate hold on life. As long as the two elements remain correlated yet
conceptually, temporally, and subjectively distinct … their dialectic–
though founded on a fiction–can nevertheless function in some way. But

40 Agamben, State of Exception, 59.

41 Catherine Mills, The Philosophy of Agamben (London: Routledge, 2014), 66.
42 Humphreys, ‘Legalizing Lawlessness’, 682.
43 Agamben, Homo Sacer, 98.
104 Simon Lavis

when they tend to coincide in a single person, when the state of excep-
tion, in which they are bound and blurred together, becomes the rule,
then the juridico-political system transforms itself into a killing
machine.44

Agamben, famously, makes a leap from the operation of the exception in the
mass killings in the camp system of the Holocaust to a claim that ‘the voluntary
creation of a permanent state of emergency … has become one of the essential
practices of contemporary states, including so-called democratic ones’.45 His-
torians and theorists, however, have questioned both Agamben’s elucidation of
the Nazi exception and his conceptualisation of modern state practice in this
way. Often, for scholars of the Third Reich, Agamben’s use of Auschwitz as
paradigmatic of the camp system and the ‘nomos of the modern’ is the focus of
criticism. He is accused, among other things, of using poetic, abstract and non-
concrete writing, adopting an unhistorical or ahistorical methodology focused
on etymology rather than evidence, fetishising law and sovereignty, and simul-
taneously exceptionalising and universalising the Holocaust. There is only scope
here to recapitulate briefly the most relevant of these criticisms.
A key framing of many of his detractors include that Agamben’s version of
the Nazi state and Auschwitz is both un-historical and un-legal. For the
former, in the two senses that it is meta-historical – it does not work in his-
torical time – and it is not an accurate description of the relevant history. For
the latter, in the two senses that it does not correctly capture how law works,
and it is not an accurate description of the relevant law. For example, Heike
Schotten argues that ‘Agamben indulges in a kind of “Holocaust exception-
alism” wherein the Holocaust is both the center and the apex of politics,
political events, and political history (if not also of political “evil,” a term
that proliferates in Holocaust exceptionalist discourses)’,46 thereby simulta-
neously exceptionalising and universalising the Holocaust in unhistorical
ways. Alison Ross has highlighted the extent to which Agamben appears to
focus on defending his ideas rather than explaining events: ‘as political theory
Agamben’s work founders because his core fidelity is not to explain complex
events but to defend concepts with dubious explanatory value’.47 This indi-
cates, for Ross, ‘perhaps that his theory is too speculative, too ready to forgo
the task of analyzing actual practices and institutions in its “philosophical”
attachment to articulate the “ultimate” or the “fundamental”’.48 Esther
Marion goes further down the same path, to claim that ‘Agamben’s

44 Agamben, State of Exception, 86.

45 Ibid., 2.
46 C. Heike Schotten, ‘Against Totalitarianism: Agamben, Foucault, and the Politics
of Critique’, (2015) 20 Foucault Studies 155, 178.
47 Alison Ross, ‘Agamben’s Political Paradigm of the Camp: Its Features and Rea-
sons’, (2012) 19(3) Constellations 422, 425.
48 Ibid., 431.
 The exception of the norm in the Third Reich 105

analysis … effaces the very historical constitution of this aporia, which he

structurally appropriates for assimilation into his philosophical discourse’.49
Mark Mazower highlights a number of objections to Agamben’s analysis in
relation to the historical specificities of Nazism, while also questioning his
selection of Auschwitz as a privileged historical paradigm.50 For example,

Agamben does not really talk about extermination. He invokes the

emblematic power of Auschwitz—its ‘uniqueness’—yet his accounts of
camp life come back again and again to life in the concentration camps,
not the death camps, and his remarks about ‘indeterminate life’ only
make sense in the context of the former.51

Mazower also highlights Agamben’s reductionist tendencies when using the

history of the camp system, for example that ‘the idea that the camps were
designed to be a deliberate experiment in metaphysical domination can be
regarded as nothing more than a gross simplification’.52
The historian (although not ordinarily of Nazi Germany) Ichiro Takayoshi
has gone further than most, systematically critiquing the factual basis of
Agamben’s analysis, with reference to Homo Sacer. Takayoshi asserts that
Agamben’s use of three key Nazi examples – the euthanasia programme,
camp system and Nazi law – is flawed on a historical level,53 which under-
mines his more profound philosophical claims. With regard to the state of
exception, Takayoshi invokes Fraenkel’s dual state to argue that the

vapor of indistinguishability [between exception and norm] is dispelled

once one reformulates this assertion as follows: during the Nazi rule, the
state of exception … was prolonged, and in this very limited, literal sense,
routinized (but never normalized). Vital components of the Weimar con-
stitution were gradually dismantled and Nazi legal theoreticians
employed juridical casuistry to construct a new theory of state. Never-
theless, the fact remains that the Rechtsstaat was never abrogated.54

This was because ‘Hitler had an instinctive aversion to any legal constraints
on his freedom of action and thus showed no desire for “normalizing” the

49 Esther Marion, ‘The Nazi Genocide and the Writing of the Holocaust Aporia:
Ethics and Remnants of Auschwitz’, (2006) 121(4) MLN 1009, 1009.
50 Mark Mazower, ‘Foucault, Agamben: Theory and the Nazis’, (2008) 35(1)
Boundary 2, 23, 31.
51 Ibid., 29.
52 Ibid., 31
53 Ichiro Takayoshi, ‘Can Philosophy Explain Nazi Violence? Giorgio Agamben
and the Problem of the “Historico-Philosophical” Method’, (2011) 13(1–2) Jour-
nal of Genocide Research 47, 50–59.
54 Ibid., 56.
106 Simon Lavis

exception … preferring instead to disregard the old legal system wherever

expedient’.55 In this system, the norm continued to exist alongside the ‘sphere
of lawlessness’ that constituted the prerogative state, while Hitler as sovereign
‘exercised the jurisdiction over jurisdictions and decided on the eligibility of
its subjects for membership in the völkisch community’.56 Ultimately, then,
law and exception did not become indistinguishable but ‘became even more
sharply partitioned from each other. For the German state had every reason
to be invested in policing the border between the two, in the manipulation of
which lay one main source of Nazi violence’.57
This insistence on the clear distinction between law and lawlessness in the
Third Reich is a fundamental feature of Takayoshi’s critique of Agamben’s
merger of the two into a hybrid of fact and law. He contends that when
Agamben takes his analysis of Nazi law into the camps, he ‘is ascribing his
far-fetched characterization … which barely does full justice to the Führer
law, to the camp, which was not merely distinct from legalized terror but
found itself often in a complex mode of rivalry with the legal system’.58 This
general criticism is perhaps most tellingly employed in relation to the concrete
example of the euthanasia programme, where Takayoshi asserts that

the Third Reich, in the state of exception, did not strip the incurably ill of
legal protection and kill them lawfully. A group of individuals possessing
no legal authority broke the domestic law and murdered at least five
thousand chronically ill children and over one hundred thousand adult
psychiatry patients … . Hitler could have issued a law, prescribing that
the mentally and physically disabled be put to death because they posed a
dead burden on the state (Ballastexistenzen). Instead of turning the
incurably ill into ‘homo sacer’, however, Hitler chose to launch a clan-
destine operation. Drawing on the work of Lothar Gruchmann, Ian
Kershaw notes that ‘Even according to the legal theories of the time,
Hitler’s mandate could not be regarded as a formal Führer decree and
did not, therefore, possess the character of law’. In this regard, there is an
illuminating contrast between the ‘euthanasia action’ and the forced
sterilization: the latter was a ‘public procedure based on expert tribunals’
and the former was a covert, illegal operation.59

In the case of the euthanasia programme, then, ‘Hitler took great care to sidestep
the normal administrative and legislative branches of the Reich government’, to
commit a crime that ‘violated the domestic law of the Third Reich, however

55 Ibid.
56 Ibid.
57 Ibid., 56.
58 Ibid., 59. Cf. Fraser, ‘Criminal Law in Auschwitz’ in terms of the legal con-
tinuities between ‘legalised’ terror and the Holocaust.
59 Takayoshi, ‘Can philosophy explain Nazi violence?’, 52.
 The exception of the norm in the Third Reich 107

perverted it had already been’.60 Takayoshi is also highly critical of Agamben’s

interpretation and application of Schmitt’s writings, primarily because of
Agamben’s tendency to take Schmitt’s claims at face value, thereby ‘assume[ing]
that their writings are accurate, reliable substitutes for the political and legal
reality’.61 So, if ‘Schmitt wrote that fact and law became indistinguishable in the
Third Reich, Agamben takes this statement to be the objective description of the
historical situations, ruling out the possibility that Schmitt, like many other Nazi
jurists, had vested interests in concealing the reality where law was, to their
embarrassment, still distinguishable from fact’.62
The historical examples Takayoshi uses to question Agamben’s arguments are
convincing in so far as they are grounded in some sound historiographical evi-
dence. Fraenkel’s dual state, which implies the never complete destruction of the
pre-existing, normative constitutional order of the state coupled with an always
ad hoc, prerogative approach to new administrative orders and decrees, provides
a good analytical account of the operation of the Nazi state. The description of a
complex, sometimes conflictual relationship between the SS-run camp system
and the regular legal system is a fair one, although the extent to which this can
be used to support a clear differentiation between legal and extra-legal terror,
normative and prerogative states is less certain. The example of the euthanasia
programme does show that the Nazis sometimes chose not to propagate regular
laws in certain areas, and indeed acted in breach of the existing legal framework,
although this raises questions about what precisely constituted ‘law’ in the Nazi
state. Finally, there is a good case for treating Schmitt’s statements about Nazi
law with extreme caution, given his association with the regime.63
However, the historical situation in the Third Reich does not provide as
clear-cut a rebuttal of Agamben’s argument as Takayoshi asserts. The endor-
sement of the conventional state of exception narrative is problematic in light
of the ideological imperatives driving the new legal regime. This makes it
possible to see some commonality across the alleged chasm between legal and
extra-legal terror, the latter of which is seen to be the sole domain within
which the camps operated. It calls into question whether deliberately hiding
the euthanasia programme orders behind unusual instruments even for the
Nazis, for fear of adverse public response, necessarily meant it fell outside of
the broader legal norms of the system. In this context, Takayoshi’s critique
elides Agamben’s claim about the undecidability of facts and norms, which
meant that actions taken in the formalistically extra-legal sphere, but in the
service of Nazi ideology, were unpunishable within the legal system and so
not against the law in any meaningful sense.

60 Ibid., 53.
61 Ibid., 59.
62 Ibid.
63 See, for example, Benjamin A. Schupmann, Carl Schmitt’s State and Constitu-
tional Theory: A Critical Analysis (Oxford: OUP, 2017).
108 Simon Lavis

Re-reading the Nazi Constitutional State

The idea that the exception, particularly as exemplified in Nazi Germany,
cannot have juridical form represents a paradigm of law, and more
importantly lawlessness, which disrupts and obfuscates our understanding
of Nazi legality.64 While the criticisms discussed in the previous section
expose significant problems with his use of Nazi Germany and ‘Ausch-
witz’ to support his project, by narrowing the scope of the inquiry con-
siderably Agamben’s evaluation of the state of exception can help to
overcome the conundrum of a system of rule that appears to be at once
both lawful (law-full) and lawless (law-less).65 This section focuses on two
ways in which, notwithstanding the weaknesses identified, Agamben’s
approach may be used to better understand the role of law in the Nazi
regime, both of which are based to an extent on his willingness to take
Nazi legal ideology seriously. Perhaps it should not be taken as literally
as Agamben, who occasionally appears to accept too readily Schmitt’s
sometimes self-serving juridical justifications for the nature of Nazi rule
after his conversion to the National Socialist cause, but seriously enough
to interpret Nazi law as something more than a pure and cynical instru-
ment of power and terror.66
The first is to use Agamben’s idea of a ‘zone of indistinction’ to interrogate
and advance Fraenkel’s ‘dual state’ model of Nazi rule, which remains the
pre-eminent and most enduring conceptualisation of Nazism as a legal
regime,67 but which arguably provides an incomplete legal-theoretical account
of the Nazi state. The second is to use a refinement of the connection between
sovereignty and the state of exception, which is advanced by Agamben based
on Schmitt’s writings, to try to make jurisprudential sense of key legal and
functional concepts that were at the heart of the regime: the Führerprinzip
and ‘working towards the Führer’.

64 See fn 9 above.
65 Michael Stolleis, ‘Law and Lawyers Preparing the Holocaust’, (2007) 3 Annual
Review of Law and Social Science 213. See also Simon Lavis, ‘The Conundrum of
Nazi Law: An Historiographical Challenge to the Anglo-American Jur-
isprudential Representation of the Nazi Past’ (PhD, University of Nottingham,
2015 [unpublished]), available at http://eprints.nottingham.ac.uk/29061/1/Thesis_
Final_April%202015_Hardbound%20Final_4118996.pdf
66 See Lavis, ‘Nazi Law as Pure Instrument’.
67 Fraenkel, The Dual State. For a compelling recent attempt to revive Fraenkel’s
dual state theory for legal and political theory in relation to the Third Reich and
beyond, see Jens Meierhenrich, The Remnants of the Rechtsstaat: An Ethno-
graphy of Nazi Law (Oxford: OUP, 2018).
 The exception of the norm in the Third Reich 109

Excepting the dual state

Agamben’s willingness to interrogate the distinction between law and law-
lessness in relation to the exception is helpful for problematising the influential
‘criminal state’ or ‘rupture thesis’ narrative around the Third Reich68 and for
understanding the relationship and delineation between legal and extra-legal
measures in the Nazi regime. The question Agamben aims to address is how to
understand a system where form and force of law become confused; where the
formal requirements of law are hollowed out to the extent that formality has
little meaning, but does not simply become the force of law absent its form
because the validity of law in the system depends on something beyond or
other than formal requirements. Applied to the Third Reich, this relates to the
extent to which the pre-existing constitutional norms of the Weimar Republic
continued to be in force (variously with and without application), while the
new, Nazi law was, arguably, in places in application without always being
normatively in force.69
The relevance and usefulness of this aspect of Agamben’s work is best
illustrated with reference to Fraenkel’s dual state. This model recognised
the parallel operation of both a residue of the pre-existing legal regime –
the normative state – and the new, arbitrary regime – the prerogative
state – representing ‘a division between the existing constitutional structure
and a system of extraordinary administrative and executive powers that
operated outside or in contradiction to the established norms’.70 Fraenkel
rejected Franz Neumann’s signification of the Nazi state as lawless71 and
instead incorporated both elements of the state within the conceptual
realm of ‘law’. However, notwithstanding his consideration of the doctrine
of ‘communal natural law’,72 which, he argued, ‘is not in conflict with the
arbitrary regime of the Prerogative State. Rather it presupposes its exis-
tence, for only the community and nothing but the community is of
value’,73 Fraenkel does distinguish between the operation of legal norms
and the assertion of prerogative political power, essentially placing the two
states on separate juridical footings. There is some attempt to account for

68 Frederick DeCoste, ‘Hitler’s Conscience, Redemptive Political Emotions, and the

Politics of Fear’, (2012) 3 Passions in Context 1, 6–7; David Fraser, ‘Evil Law,
Evil Lawyers: From the Justice Case to the Torture Memos’, (2012) 3.2 Jur-
isprudence 391; David Fraser, ‘(De)Constructing the Nazi State: Criminal Orga-
nizations and the Constitutional Theory of the International Military Tribunal’,
(2016–2017) 39 Loy. L.A. Int’l & Comp. L. Rev. 117. See also Lavis, ‘The Dis-
torted Jurisprudential Discourse of Nazi Law’.
69 Agamben, State of Exception, 36.
70 Richard Overy, The Dictators: Hitler’s Germany, Stalin’s Russia (London: Pen-
guin, 2005), 62.
71 Neumann, Behemoth.
72 Fraenkel, The Dual State, ch 3 of Part II.
73 Ibid., 141.
110 Simon Lavis

both the role of elements of Nazi ideology in Nazi legality and its pre-
sence within the overall system of the prerogative state – a sphere of gov-
ernance ostensibly outside the legal realm – but a distinction is drawn
across the boundary separating the two states, between law and politics:

since martial law has become permanent in Germany, exceptions to

the normal law are continually made. It must be presumed that all
spheres of life are subjected to regulation by law. Whether the decision
in an individual case is made in accordance with the law or with
‘expediency’ is entirely in the hands of those in whom sovereign power
is vested.74

However, too much of a difference is arguably constructed between the two

systems, whereas they were not always functionally easily to differentiate,
increasingly united by an ideology which permeated the legal system as a
whole. As Michael Stolleis has made clear, ‘it is a myth that some areas [of
law] remained entirely untouched by the political claims of the system’,75
while it has been observed that ‘the more closely we look at the mechanisms
of the Führerstaat, the more categories such as “normative” and “prerogative
state” … tend to lose their obvious meanings’.76 Fraser’s research into the role
of law in the Holocaust, in the camp system, leads him to suggest an addition
to the dual state that recognises the normativity underpinning the prerogative
state as well as the mutual presence of both states with the structures engaged
in the Holocaust.77
To return to Agamben, the focus on the borderland between legal and
extra-legal provides the means to question such fine distinctions and may, in
this case, encourage the drawing of the boundary between law and politics
beyond the confines of the dual state, wherein both portions belong to a
unified legal realm. The ideology of the regime was seen to inform a nor-
mativity underpinning the normative and prerogative states by the Nazis.
For example:

The law itself is nothing other than the expression of the communal order
in which the people live and which derives from the Führer. The Führer
law makes concrete the unwritten principles of the völkisch communal
life. It is therefore impossible to measure the laws of the Führer against a

74 Ibid., 57.
75 Stolleis, ‘Law and Lawyers Preparing the Holocaust’, 216.
76 Thomas Schaarschmidt, ‘Mobilizing German Society for War: The National
Socialist Gaue’ in Martina Steber and Bernhard Gotto (eds), Visions of Commu-
nity in Nazi Germany: Social Engineering and Private Lives (Oxford: OUP, 2014),
102.
77 Fraser, ‘Criminal Law in Auschwitz’, 35.
 The exception of the norm in the Third Reich 111

higher concept of the law because every Führer law is a direct expression
of this völkisch concept of the law.78

While the Nazi’s own legal justifications for the effectively absolute power of
the Führer should be treated with care, incorporating the regime’s ideology
helps us to move past a key obstacle presented by the parallel existence of
both old and new systems: did the Nazis found a new constitutional order or
act entirely within an (increasingly expansive) suspension of the existing
order? An argument for the latter is that the Nazis did not formally institute a
new constitution or sets of legal codes in their ideological image. However, as
Peter Caldwell has asserted, ‘Nazism was not a movement of opportunism
without coherent principles—rather, its very principle was a kind of constitu-
tional opportunism’,79 and so ‘Nazi anticonstitutionalism … was not merely
an example of “pragmatism” or a “lack of principles,” but rather an essential
part of the National Socialist world view, manifested in real institutions as
well as theory’.80
The result of this is perhaps better seen as a functionally hybrid – rather
than a dual – system with an at times thin, but significant, connection to law
across all of its façets. Decrees, orders, commands and other measures
implemented by the regime, including those which infringed some of the
basic principles of the rule of law such as non-retroactivity of criminal law,
are not, it may be argued, ordinary legal rules. Nevertheless, those decrees,
orders, commands and other measures were from early on the basic, ordin-
ary norms of the Nazi legal system; i.e. they had full legal force, were pos-
ited correctly according to the (formally sparse) rules of the system, and
persisted as commonplace rather than exceptional elements of the system.
By recognising the conflation of law and non-law in the wake of the Nazi
institution of the state of exception, and acknowledging it as a deliberate,
ideological position capable of constituting a juridical order, Agamben’s
‘zone of indistinction’ may paradoxically be treated as an invitation to study
further the legal-historical constitution of the Nazi order, even while he
attempts to escape from the jurisprudential hegemony over life that this
implies, and in spite of the flaws in his representation of Nazi history.

The multi-levelled sovereignty of the Führerprinzip

Kershaw used the phrase ‘working towards the Führer’, borrowed from a 21
February 1934 speech by Werner Willikens, state secretary in the Prussian

78 Ernst Rudolf Huber, quoted in Jeremy Noakes, Geoffrey Pridham, Nazism 1919–
1945, Volume 2: State, Economy and Society 1933–1939 (Exeter: University of
Exeter Press, 1998), 282.
79 Caldwell, ‘National Socialism and Constitutional Law’, fn 6, 400–401.
80 Ibid., 400.
112 Simon Lavis

Agriculture Ministry, to capture how the relationship between Hitler as

Führer and the people of Nazi Germany operated. As such, it both explains
the cumulative radicalisation that the regime engendered and encapsulates
the functional nature of an administration that appears at once both extre-
mely autocratic and polycratic.81 As an explanatory concept for the Nazi
state, it has proved hugely influential among historians, and has advanced
academic understanding of the regime enormously.82 The crux of the
explanatory power of the concept is in describing the interplay between the
different levels of hierarchy and engagement with the administration, in
driving the regime forward and contributing to its radicalisation. Its
achievement in doing so is in not diminishing the importance of the central
focal point of Hitler’s leadership while maintaining a prominent role for
Nazi ideology. As Kershaw explains:

Through ‘working towards the Führer’, initiatives were taken, pressures

created, legislation instigated – all in ways which fell into line with what
were taken to be Hitler’s aims, and without the dictator necessarily having
to dictate. The result was continuing radicalization of policy in a direc-
tion which brought Hitler’s own ideological imperatives more plainly into
view as practicable policy options.83

Therefore, ‘working towards the Führer’ brings to the fore an important

aspect of the way the regime operated that raises doubts about the abso-
lute, decisionistic sovereignty of Hitler. Yes, Hitler had the power and
authority to take any decisions he wished, but this did not mean he took
all decisions. Indeed, although it placed Hitler at the apex of the hierarchy,
the leader principle – according to Peter Caldwell one of the two key
tenets of Nazi rule84 – empowered leaders at all levels to make indepen-
dent decisions that were binding on those below them: ‘each member of
the hierarchy owed absolute obedience to those above and exercised
authority over those below’.85
Consequently, the Führerprinzip does not exclusively refer to the absolute
sovereignty of Hitler, and the idea of ‘working towards the Führer’ suggests a

81 Ian Kershaw ‘“Working Towards the Führer”’ in Kershaw, Hubris (see page 529
for the origin of the phrase).
82 See, for example, Anthony McElligott and Tim Kirk (eds), Working towards the
Führer: Essays in Honour of Sir Ian Kershaw (Manchester: Manchester Uni-
versity Press, 2004). See also Dan Stone, Histories of the Holocaust (Oxford:
OUP, 2010), at page 55.
83 Kershaw, Hubris, 530.
84 The other being ‘the principle of the essential unity of Artgleichheit (unity of
species, type, or race) of the German Volk’, Caldwell, ‘National Socialism and
Constitutional Law’, 408.
85 Joseph W. Bendersky, A Concise History of Nazi Germany, 4th ed. (Maryland:
Rowman & Littlefield, 2014), 39.
 The exception of the norm in the Third Reich 113

much more dispersed and devolved model of sovereignty than envisaged by

Agamben. An example of this elsewhere is found in Roxanne Doty’s appli-
cation of Schmitt’s theory of sovereignty to civilian border patrol groups on
the southern border of the United States of America. Doty seeks, with refer-
ence to such groups, to explore and problematise Schmitt’s concepts of
sovereign and the decision, questioning ‘where and who is “the sovereign”
and what does it mean to “decide”?’86
Agamben’s claim, taking a lead from Schmitt, is that ‘the defining char-
acteristic of sovereignty is that the sovereign determines when law is applic-
able and what it applies to, and, in doing so, must also create the conditions
necessary for law to operate since the law presupposes normal order for its
operation’.87 Doty, however, asks whether the functions of the sovereign
decision go beyond this, as this view of the decision suggests ‘the moment of
actual policy-making is the moment that brings into being the political when
in actuality the political preexists any ultimate moment of decision on the
part of political leaders or elites’, because of the role of social forces in pre-
empting and shaping official decision making.88 Sovereignty is not therefore a
single, unified entity, but ‘is ethereal and hovers unsteadily around us, not
firmly anchored, not solely public or private, legal or extra-legal’,89 and
sovereign decisions are best understood in accordance with this more dis-
persed notion of sovereignty:

Decisions disseminate across many landscapes and are held together by

numerous fragile threads, which both presuppose and produce the enemy.
These threads consist of beliefs, values, and unquestioned presuppositions
found in the many facets of the movement as well as across the social
field more generally.
… [W]idely dispersed utterances constitute a myriad of decisions and
can come from what, on first glance, may seem irrelevant or peripheral,
perhaps even fringe.90

One of the historiographical challenges for Agamben’s adoption of both

Schmitt’s unified theory of sovereignty and his juridical justification of the
Führer state is to overemphasise the totalitarian and monolithic nature of the
Nazi regime, locating Hitler at the centre of all decision-making. Doty’s ver-
sion of sovereignty fits better with a Nazi administration in which those lower
down, and sometimes outside of, the state hierarchy were empowered to take
decisions that contributed to, and sometimes translated into, official legal and

86 Doty, ‘States of Exception’, 116.

87 Mills, The Philosophy of Agamben, 61–62.
88 Doty, ‘States of Exception’, 116.
89 Ibid., 132.
90 Ibid., 130.
114 Simon Lavis

policy measures, and which operated in a polycratic way with a dynamic

relationship persisting between different levels in the hierarchy. Indeed,
because of the totalising aims of the Nazis with respect to state and society
and the content of the leadership principle, the role of civilians in the Third
Reich in contributing to sovereign decision-making was, potentially, formally
and practically more authoritative and officially sanctioned than Doty’s civi-
lian border patrol groups, especially when initiatives found favour with the
Nazi leadership.
This application of sovereignty to the Third Reich builds on the funda-
mental tenets of Agamben’s (and Schmitt’s) analysis of sovereignty and the
exception but in a way that better represents the historical and legal nature of
the Nazi regime. In doing so it provides a way to disarm an important theo-
retical criticism of Agamben, that his notion of sovereignty is too monolithic,
while showing how the notion of a sovereign power that exists within and
across the norm-exception dichotomy may be grounded in a real historical
situation. From a historical perspective, it demonstrates the legal relevance
and significance of the Führerprinzip and ‘working towards the Führer’ as key
concepts for understanding the operation of the Nazi state. Linking back to
the dual state and the zone of indistinction, it also highlights the intrinsic
juridical continuities across the two state spheres revealed by Fraenkel’s ana-
lysis that again divert our attention to the point of amalgamation of norm
and exception.

Conclusion: the exception of the norm

Despite the merits of some of the criticisms of Agamben’s work, not least in
its treatment of history, it is the thesis of this chapter that aspects of his state
of exception do have something important to contribute to the legal and his-
torical interpretation of law in Nazi Germany. The component that connects
the two elements of Agamben’s state of exception theory recovered in the
preceding section, and which leads us inexorably to a focus on the point of
convergence between the norm and the exception, is ideology. In terms of the
limits of the dual state model when confronted with Agamben’s zone of
indistinction, the ethical norms of the regime applied across the supposed
boundaries between normative and prerogative states; between what histor-
ians of the Third Reich refer to as legal terror and extra-legal terror. The
Nazis, therefore, did not simply instrumentalise the law on the site of the
suspension of the constitution but endorsed a grotesque philosophy that was
not able, or intended, to be captured within the confines of a new, formal
constitution. The laws – old laws, new laws, laws in force without application,
laws applied without being in force – all operated in the service of the ideol-
ogy, making it, from this perspective, difficult to draw a clear distinction
between rule and exception.
 The exception of the norm in the Third Reich 115

In terms of the mutually enforcing ideas of dispersed sovereignty and

‘working towards the Führer’, it is the ideological tenets at the heart of the
regime and its law, such as the Führerprinzip, which animated the basic
method of operation that drove the regime’s radicalisation. Equally, not being
a juridical concept, when paired with Agamben’s notion of sovereignty, the
legal significance of ‘working towards the Führer’ is illuminated as it encom-
passes the implications of norms that operated inside both the conventionally
normal and exceptional (legal and extra-legal) realms regardless of the
formal, legal status of those norms. In doing so it highlights the zone of
indistinction, the space between rule and exception, because on these terms
there is again no way to distinguish between the two that is compatible with
the fundamental tenets of the system. This is where Agamben’s assertion
about the undecidability of fact and norm resonates most.
The challenge with following Agamben down this path is twofold. First,
how far can we, and should we, go along with Nazi ideology? Taking Nazi
ideology seriously as a means of understanding the Third Reich, as so many
historians are now willing to do, means also taking seriously its juridical
manifestations as a means of understanding both the important role norms
and normativity played in Nazi Germany91 and the implications of this for
legal theory beyond the Nazi past. However, it is equally important to be
careful not to simply reflect Nazi propaganda, exemplified by some of
Schmitt’s own attempted justifications of Nazi rule.92 Identifying the point
where representing the actual significance of ideology to the functioning of
the regime ends and over-emphasising the importance of aspects of Nazi
rule that were a propaganda exercise begins is not straightforward.93
Nevertheless, it is hoped that generally, and in this chapter, this problem can
be overcome by making appropriate efforts to found jurisprudential claims
in historical research.
Second, this approach confounds conventional historiography and legal
theory. It is evident that the Nazi use of law does not fit neatly within the
formal exception. However, Agamben goes further to argue that the excep-
tion is contained within any application of the law, in the moment of poli-
tical discretion that initially separates and subsequently joins the legal norm
to be applied to the facts subject to its application. This again draws our
focus to the zone of indistinction between law and fact in a way that is per-
tinent to Nazi law. The gap that exists between factual situations and legal
norms in the Third Reich was often much larger than we would usually
expect in a legal system, and the legal norm often much less formally

91 Herlinde Pauer-Studer and J. David Velleman, ‘Distortions of Normativity’,

(2011) 14 Ethical Theory and Moral Practice 329.
92 See, again, Schmitt, ‘The Führer Protects the Law’.
93 See Ian Kershaw, ‘Volksgemeinschaft: Potential and Limitations of the Concept’
in Steber and Gotto, Visions of Community.
116 Simon Lavis

constituted, indeed sometimes reducible to the perceived will of the Führer.

Consequently, in Nazi Germany, the zone of indistinction is particularly
exposed and the very thing used to argue that the regime was lawless, par-
ticularly in the prerogative state where the Holocaust took place, is also the
thing that may be used to argue that the regime was law-full – full of legal
norms.94 The combination of a stark distinction between the forms of Nazi
laws and ‘ordinary’ laws and the extent of apparently arbitrary decision-
making involved in bridging the gap needed to apply certain norms to par-
ticular facts is simultaneously indicative of a law/non-law divide and evi-
dence for the convergence of the two. As such it exposes the root of the
complex juridical relationship between exception and norm, which requires
further interrogation in relation to both the Third Reich and other contexts.

94 Fraser, Law after Auschwitz.

Part 2

Histories of exception
Chapter 6

‘Norm’ and ‘exception’

From the Weimar Republic to the Nazi
state form
Dimitrios Kivotidis

Introduction
In this chapter, I aim to examine the unity between ‘norm’ and ‘exception’ as
different forms of exercise of public power. I argue that both ‘norm’ and
‘exception’ are essential forms for the reproduction of bourgeois rule and that
the change from one form to the other is contingent upon the intensification
of socio-economic antagonisms (which manifest themselves in both class and
intra-class conflicts). This argument is pursued based on an examination of
the transition from the Weimar Republic to the Nazi state form, as reflected
in the work of Carl Schmitt.
Schmitt’s work will be assessed as a unified whole in its socio-economic
and political context. This methodological choice will allow us to raise
another theoretical point on the succession of different forms of state.
During the interwar period in Germany, two major changes took place:
one relating to the structure of the state and the other to the theory of the
state. The bourgeois state underwent a process of deep crisis and trans-
formation as it had to confront the antagonism of the first workers’ state
and the internal threat of the revolutionary working-class movement, as
well as the socio-economic contradictions of capitalism that reached their
peak at the economic crisis of 1929. These processes were bound to be
reflected in the theory of the state, and the work of Carl Schmitt is a key
example of this phenomenon.
The fundamental differences and nuances between the ‘normal’ and the
‘exceptional’ forms of exercise of public power is the point of departure of
this analysis. The Weimar Republic is not the same as the Nazi state. This
is precisely the point: they correspond to different levels of intensification
of social antagonisms. The German Revolution of 1919 was defeated, but
the German working-class struggle won vital concessions in the form of
civil, political and social rights, which were enshrined in the Weimar
Constitution. These concessions were embodied in the form of the welfare
state and were abolished in the form of the Nazi state. However, in order
to comprehend why these concessions were so easily abolished we have to
120 Dimitrios Kivotidis

figure out what is common to the two forms. What relations were repro-
duced by both the Weimar and the Nazi state? What social movements
were prevented by both?
It is argued that Schmitt’s theory of the state, reflecting a specific state
form, responded to specific socio-economic conditions of intensified class and
intra-class struggle that necessitated the change in the form of exercise of
public power. To this end, the dualisms found in Schmitt’s work (i.e. ‘com-
missarial’ and ‘sovereign dictatorship’, the ‘quantitative’ and the ‘qualitative
total state’) will be examined alongside an analysis of the socio-economic
reasons that necessitated the transition from the ‘quantitative-Weimar’ form
to the ‘qualitative-Nazi’ form. These reasons include, but are not limited to,
the need to reproduce the capitalist relations in the face of socio-economic
and political crisis, as well as the need to facilitate the conditions for intensi-
fied exploitation, which would restore the profitability of German capital by
crushing the labour movement and organisations.
In pursuing these arguments, the chapter is structured as follows: the ana-
lysis of Schmitt’s theoretical framework begins with the conceptual pair of
‘sovereign’ and ‘commissarial’ dictatorship. Part I examines the commonal-
ities and differences between the two. A discussion of the common origin of
both normal and exceptional forms in the legitimating concept of the ‘people’
is followed by an examination of the difference between the two, i.e. the ‘effi-
ciency’ in making the political decision against the ‘enemy’. In Part II, the
principle of ‘efficiency’ is examined in a move from the ‘political’ to the
‘social’ and the ‘economic’. This is achieved by examining another one of
Schmitt’s dualisms, between the ‘quantitative’ and the ‘qualitative total state’.
A careful look at Schmitt’s economic model reveals the reasons behind the
transition from one form to the other: the reproduction of capitalist power,
property and productive relations, as well as the facilitation of conditions for
intensified exploitation of labour. The similarities and differences between the
‘quantitative-Weimar’ and ‘qualitative-Nazi’ forms are examined with refer-
ence to the class and intra-class antagonisms and contradictions of interwar
Germany. Furthering this line of reasoning, Part III examines the prominent
role of plebiscitary legitimacy in the ‘qualitative-Nazi state’, as well as the
‘leadership principle’ as it appeared not only in the field of public law but also
in that of labour relations.

‘Sovereign’ and ‘commissarial’ dictatorship

I will begin the analysis with the first dualism, which is crucial for grasping
the transition from one form (normal-Weimar) to the other (Nazi-excep-
tional): ‘sovereign’ and ‘commissarial dictatorship’. These two kinds of dic-
tatorship are both based on the concept of the ‘people’. But, whereas in
‘commissarial dictatorship’ the deputies of the people, acting within the
already constituted order, seek to preserve this order by suspending certain
 ‘Norm’ and ‘exception’ 121

legal provisions, in ‘sovereign dictatorship’ the people’s role as a legislator and

as a dictator coincides in order to found a new constitution. The exercise of
the people’s constituent power is the distinguishing element of sovereign dic-
tatorship. Here is how Schmitt describes the relationship between ‘sovereign’
and ‘commissarial dictatorship’:

The legislator is nothing but right that is not yet constituted; the dictator
is nothing but constituted power. When a relationship emerges that
makes it possible to give the legislator the power of a dictator, to create a
dictatorial legislator and constitutional dictator, then the commissary
dictatorship has become a sovereign dictatorship. This relationship will
come about through an idea that is, in its substance, a consequence of
Rousseau’s contrat social, although he does not name as a separate
power: le pouvoir constituant.1

Two issues follow directly from the above. First, the relationship between
dictatorship (i.e. exceptional use of power) and the law is always there and
never questioned in both dictatorial forms. On the one hand, in ‘commis-
sarial dictatorship’ it is the exercise of power unrestrained from law that
safeguards the law itself. On the other, ‘sovereign dictatorship’ does not
appeal to an existing constitution, but to one that is still to come. This is
why the concept of ‘constituent power of the people’ is crucial here; because
the ‘people’ as the carrier of this power relates it to the constitution-to-come
as foundational to it.
This brings us to the second issue, i.e. the ideological function of the ‘people’.
Both forms of dictatorship are based on the idea of the ‘sovereign people’. It is
the ‘people’ that institutes the state with its constitution-making power on the
basis of its ‘political unity’, we read in Schmitt’s Constitutional Theory.2 And it
is in the interest of the ‘people’, i.e. it is in the ‘general interest’, that this con-
stitutional order is suspended for exceptional power to safeguard it. However,
the ‘people’, this classless and metaphysical subject, is a fiction. The concept of
the ‘people’ is an illusory concept, albeit one with very actual effects in a social
formation, precisely because it impedes the conceptualisation of society in its
contradictory movement by obscuring the conflicting social interests behind the
‘oneness’ of ‘popular sovereignty’. The ‘people’ as a whole cannot be sovereign
because society is divided; the ‘people’ stands in for a whole, which consists of
classes with conflicting interests, which cancel the possibility of a ‘general
interest’, expressed in a ‘general will’. ‘Sovereign’ and ‘commissarial’ dictator-
ship, normal and exceptional forms, are based on the idea of the ‘people’ (and
the accompanying concepts of general will and general interest) as a legitimat-
ing fiction of class rule.

1 Carl Schmitt, Dictatorship (London: Polity Press, 2013), 111.

2 Carl Schmitt, Constitutional Theory (London: Duke University Press, 2008).
122 Dimitrios Kivotidis

Where does this leave us concerning the nature of the Nazi state? Was it a
‘permanent state of exception’? Was it a sovereign or a commissarial dicta-
torship? In order to answer this question we have to look at Schmitt’s cele-
bratory essay on the Nazi state, his 1933 State, Movement, People. There,
Schmitt refutes the argument that

the National-Socialist public law has only the value of a temporary,

interim measure against the background of the earlier constitution, and
that a simple bill passed by the Reichstag might again abolish the new
constitutional legislation entirely and return to the Weimar Constitution.3

He argues instead that there are two issues to be taken into account with
regard to the Enabling Act (or ‘law of empowerment’, i.e. the enabled
amendment of the Weimar Constitution that gave the German executive the
power to enact laws without the involvement of the Reichstag) of 24 March
1933. The first one consists of the fact that the elections of March 1933 ‘were
in fact a popular referendum, a plebiscite, by which the German people has
acknowledged Adolf Hitler, the leader of the National-Socialist Movement, as
the political leader of the German people’.4 According to Schmitt, the
‘people’ appears here to give ordinary elections the character of plebiscite.
The ‘pouvoir constituent’ and the ‘will of the people’ are invoked here by
Schmitt to found the Nazi state. And this invocation points towards the con-
cept of sovereign dictatorship with regard to the emergence of the Nazi state.
On the other hand, Schmitt emphasises the importance of the fact that this
transition should take place legally.5 The Enabling Act came into legal exis-
tence in conformity with Article 76 of the Weimar Constitution, which
required a two-thirds majority for laws amending the Constitution, but that

does not mean that one may still nowadays consider the Weimar Con-
stitution as the foundation of the present-day State structure, but only
that the law represents a bridge from the old to the new State, from the
old base to the new base.6

Here, therefore, the change to the exceptional form is accommodated within

the normal-parliamentary form. The Nazi state form combines the elements
of norm and exception and is a perfect example of the unity of and con-
tinuity between these forms. This unity is captured by Ernst Fraenkel’s
concept of the ‘dual state’. Fraenkel’s central argument was that the Nazi

3 Carl Schmitt, State, Movement, People: The Triadic Structure of the Political
Unity (Washington, DC: Plutarch Press, 2001), 5.
4 Ibid.
5 Ibid., 6.
6 Ibid.
 ‘Norm’ and ‘exception’ 123

state consists of two constituent and equally necessary elements, namely a

state of exception and arbitrariness, which he calls ‘prerogative state’, and a
state of legal normality, which he calls ‘normative state’. He argues that the
‘prerogative state’ is the result of a process through which the National
Socialists ‘were able to transform the constitutional and temporary dicta-
torship (intended to restore public order) into an unconstitutional and per-
manent dictatorship and to provide the framework of the National Socialist
state with unlimited power’.7 However, the limits of this ‘prerogative state’
are set out by the reproduction of the ‘normative state’, whose existence as a
‘normative state’ was essential because it protected the institutions of private
property, contract and private enterprise, which were still the basis of the
German social formation.8
Norm and exception are united in the source of authority of the Nazi
state form too. The fact that the Reichstag voted its own disempowerment
with the Enabling Act of 1933 is proof of this. Legality becomes its own
legitimation since the transfer of power is carried out in accordance to the
laws in force at the time of the transfer, which provide it with the neces-
sary legitimation and grant it legal validity. One could argue that the two
legal instruments used to consolidate the rule of the Nazi party – i.e. the
‘Decree for the Protection of the People and the State’ of 28 February
1933, passed under the emergency provision of Article 48 of the Weimar
Constitution (otherwise known as the ‘Reichstag Fire Decree’), and the
‘Enabling Act’ of 24 March 1933 – correspond to the different types of
dictatorship, the former being an instance of commissarial while the latter
an instance of sovereign dictatorship. Both, however, facilitated the con-
solidation of Nazi rule in intricate relation with the notion of the
‘people’ – the former protecting the ‘people’, the latter being an expression
of the ‘people’s’ constituent power.
Consequently, ‘commissarial dictatorship’ and ‘sovereign dictatorship’ show
their indissolubility at this point, something evident in Schmitt’s famous defi-
nition of sovereignty. They are indissoluble because they refer to different
processes of legitimating the exercise of public power. ‘Sovereign dictatorship’
refers primarily to the idea of the ‘people’, of a constituent power as the law-
positing, establishing power of the legal rule. ‘Commissarial dictatorship’
refers primarily to the idea of ‘general interest’ which the dictator promotes.
However, the dictator in this case acts according to a strict mandate on behalf
of the people. Consequently, the ideological function of the people and its role
in the reproduction of a regime of power, property and productive relations is
central for both Schmittian types of dictatorship.

7 Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship

(Clark, NJ: The Lawbook Exchange, 2010), 5.
8 Ibid., 86.
124 Dimitrios Kivotidis

We end up with a prima facie paradoxical conclusion that the source of

legitimacy of the Nazi state was the law itself, but at the same time the
source of the new constitution has to be the ‘people’. The validity of the new
constitutional order does not derive from the old Weimar Constitution,
which is now superseded, but from the constituent power of the German
‘people’. This paradox is resolved only if we take into account the common
basis of both norm and exception, commissarial and sovereign dictatorship,
on the same legitimating mechanism of ‘peoplehood’. The conflict between
the antithetical conceptualisations of law – as a normative and as a volun-
taristic phenomenon – was resolved in the actual case of the transition from
the Weimar to the Nazi state form by revealing law as being based on both
norm and will. It was important for the so-called ‘German revolution’ to
take place through legal means because this would provide it with the
necessary legitimacy.9 Nevertheless, it was for the same reasons equally
important that the metaphysical concept of ‘pouvoir constituant’ is there in
its absence.
Having looked at the common legitimating basis of the two forms it is now
necessary to examine what element of novelty the Nazi state form and Nazi
legal ideology, as expressed in Schmitt’s work, bring about. This new distin-
guishing element is the efficiency in making the political decision and in
dealing with the ‘enemy’. Based on the above, it is argued that the pamphlet
State, Movement, People is the key to understanding Schmitt’s theory of
sovereignty and the exception. Until then Schmitt has not named the ‘enemy’.
His theory has already taken sides, but the ‘enemy’ remains unnamed so long
as it is only the ‘legal state’ which is attacked.
The bourgeois Rechtsstaat and the neutral function of law is criticised
precisely for not being able to make the political decision. In his Legality
and Legitimacy, Schmitt attacks the neutrality and the functionalist nature
of the legislative state. In particular he makes the case that the two-thirds
majority required for the amendment of the constitution is problematic
because it gives equal chance to all parties to ascend to the seat of govern-
ment and take advantage of the ‘political premium’ this permits. In State,
Movement, People it becomes obvious that the enemy of the state, the enemy
of the ‘people’, the force that threatens the ‘political unity’, can be no other
than the enemy of the bourgeoisie whose stated goal is overthrowing the
capitalist relations of production/exploitation. As he writes:

9 The important ideological effect of Hitler being seen as coming to power by the
most strictly constitutional means, notwithstanding the coercion against and
immediate arrests of members of the Communist Party and trade-Unionists
between the Reichstag Fire Decree and the voting of the Enabling Act, is reflec-
ted in statements such as the one by Kautsky, that ‘the Dictatorship has the mass
of the population behind it’: see Rajani Palme Dutt, Fascism and Social Revolu-
tion (London: Martin Lawrence, 1934), 148–149.
 ‘Norm’ and ‘exception’ 125

One could not wait for the empowerment of a system, which by its own
weakness and neutrality was in no way capable of recognising even a
mortal enemy of the German people, in order to abolish the Communist
Party, the enemy of the State and of the people.10

It becomes clear that the political premium should not be exploited by the com-
munists, but only by the Nazi Party in order to safeguard the bourgeois state with
the passing of the Enabling Act. This provides us with the substantive content of
the – not so formal any more – decisionist theory of Carl Schmitt. The new form
of the Nazi state can make the political decision and crush the enemy which
threatens the reproduction of bourgeois rule; and this is what the old form of the
Rechtsstaat could not deal with efficiently.
The ‘legal state’ with its inherent contradictions and its functionalist neu-
trality cannot make the political decision and exclude the communists from
the equal chance of rising to power. It is only for this reason that the ‘legal
state’ is criticised by Schmitt; because it does not correspond as a form to the
needs of the ruling class in a situation of intensified exploitation and class
struggle. On the other hand, the Nazis made use of the two extra-ordinary
law-makers – both the extraordinary law-maker ratione materiae (Art. 76 of
the Weimar Constitution) and the extraordinary law-maker ratione necessita-
tis (Art. 48), as defined by Schmitt in his Legality and Legitimacy – so as to
change the organisational structure of the bourgeois German state, get rid of
its neutral functionalist character, and effectively crush the communist threat
after recognising it as the enemy.11
Besides crushing the ‘enemy’, the Nazi state and its corresponding legal
ideology performed the equally important function of unifying the ruling
class and consolidating the bourgeois rule. Therefore, the notion of ‘political
unity’, which in Schmitt’s 1928 work Constitutional Theory serves as the basis
of the constitution-making power of a unified ‘people’, gives its place to the
principles of ‘leadership’ and ‘ethnic identity’, which can accommodate more
efficiently the most aggressive form of reactionary policies of the capitalist
state. However, the ideological function served by both notions is the same:
the construction of an abstract people, of a unified whole which obscures the
fundamental division between exploiting and exploited classes, with the added
effect of ameliorating the intra-class contradictions within the exploiting class
itself; a vital need of interwar German bourgeoisie. As Schmitt writes, ‘The
Reich Chancellor is the political leader of the German people, politically
united in the German Reich. The primary importance of the political leader-
ship is a fundamental principle of the present-day public law.’12

10 Schmitt, State, Movement, People, 3.

11 Carl Schmitt, Legality and Legitimacy (London: Duke University Press, 2004).
12 Schmitt, State, Movement, People, 8–9.
126 Dimitrios Kivotidis

The ‘leadership’ principle as the cornerstone of political unity of the

German people follows upon the plebiscitary legitimacy of the president.
Consequently, in Schmitt’s works of 1933 ‘political unity’ turned into ‘ethnic
identity’ and the ‘constitution-making power’ of the ‘people’ turned into the
‘leadership’ principle (Führerprinzip). This new notion of the people, identi-
fied with the Führer, is the new foundational and legitimating principle of the
Nazi state. This plebiscitary form corresponds to the new levels of intensifi-
cation of capitalist contradictions but performs the same mystifying and
legitimating function, contributing to the reproduction of the same capitalist
relations. It marks the passage from a ‘quantitative total state’ (a welfare state
with a pluralist party system representing different class interests) to a ‘qua-
litative total state’ (a strong one-party state to represent the interests of the
ruling class), to use Schmitt’s definition.
Elections in the former, as was the case under the Weimar Constitution, had
become an option that split the German people into many incompatible parties.
On the contrary, elections in the ‘qualitative total state’ such as the German
elections of 12 November 1933 were part of the ‘great plebiscite’ on which the
German people assume a foremost position in the politics of the Reich govern-
ment by responding to the appeal launched by the political leadership.13
According to Schmitt, the one-party Nazi state is the form corresponding to the
truly unified ‘people’, now substantively unified based on ‘ethnic identity’ and
the Führerprinzip. Moreover, this form corresponds precisely to the ideology of
class collaboration, which accompanied the new level of intensified exploitation,
and to the need of consolidation of the bourgeois rule through the amelioration
of intra-class conflicts and the elimination of centrifugal tendencies.

‘Quantitative’ and ‘qualitative total state’

Let us further examine the conceptual pair of ‘quantitative’ and ‘qualitative total
state’ in order to shed light on the reasons that led to the change from ‘normal’
to ‘exceptional’ forms of exercise of bourgeois rule. The move from the ‘quanti-
tative’ to the ‘qualitative total state’ was necessary for reasons of efficiency in
dealing with the socio-economic contradictions that posed a threat to the repro-
duction of capitalist relations in interwar Germany. It is important to note that
the concept of ‘socio-economic contradictions’ used here is not limited to class
struggle between two opposing classes, but extends to intra-class contradictions.
These include the intra-class conflicts of the German ruling class that had to be
overcome. Therefore, the demand for efficiency can be understood as the need
for a strong state to make the political decision to oppose the enemy – i.e. a
rising working-class movement – as well as the need for consolidating the bour-
geois rule against centrifugal tendencies.

13 Ibid., 10–11.
 ‘Norm’ and ‘exception’ 127

Schmitt’s theory of state, reflecting a specific state form, responds to specific

socio-economic conditions (of intensified class and intra-class struggle), which
gave rise to the most aggressive form of exercise of state power. This is par-
ticularly evident in Schmitt’s preferred economic model, which aims to
empower capital by freeing it from the regulatory burdens of the democratic
welfare state. It has been argued that Schmitt provides a political theory of
‘authoritarian capitalism’, but one in which authoritarian political institutions
are masked by an appearance of popular legitimacy.14 In particular, Schmitt’s
qualitative total state provides for the ‘legal and institutional preconditions
for a system in which capitalist proprietors engage in conscious forms of joint
supervision of the economy’.15 According to this reading,

Where economic decisions are likely to have a ‘public’ significance, state

planners would not dominate the entrepreneur. Instead, entrepreneurs
would engage in forms of planning. In Schmitt’s own terms, the state
planners should not dominate; rather, the (economically) dominant
should plan. […] [The] state must do all it can to encourage private
capitalists to engage in relatively far-sighted, sensible forms of economic
coordination.16

Schmitt’s advocating for a qualitative total state which guarantees authentic

state sovereignty while simultaneously managing to provide substantial
autonomy to owners of private capital, appears in his 1933 essay ‘A Strong
State and Sound Economics’17 and was foreshadowed in a 1930 lecture pre-
sented to a prominent organisation of German industrialists,18 the

14 William Scheuerman, Carl Schmitt: The End of Law (London: Rowman & Lit-
tlefield, 1999), 101.
15 Ibid., 103–104.
16 Ibid.
17 Carl Schmitt, ‘Starker Staat und gesunde Wirtschaft: Ein Vortrag vor Wirt-
schaftsführern’, (1933) Volk und Reich, no. 2, 89–90; Carl Schmitt, ‘Machtposi-
tionen des modernen Staates’ [1933], in Carl Schmitt, Verfassungsrechtliche
Aufsätze aus den Jahren 1924–1954, 371. According to Franz Neumann, in his
1932 address, Schmitt invented a distinction between ‘two kinds of totality, the
Roman and the Germanic’. Roman totality was quantitative; the Germanic,
qualitative. The former regimented all spheres of life, interfering with every
human activity. In sharp contrast, the Germanic remained content with a strong
and powerful state that demanded full political control but left economic activ-
ities unrestricted. Schmitt’s doctrine is, of course, no more Germanic than its
opposite is Roman. In fact, it had been formulated much more clearly and rea-
listically by an Italian, Vilfredo Pareto, who espoused political authoritarianism
and economic liberalism simultaneously and who influenced the early economic
policies of Mussolini. See Franz Neumann, Behemoth: The Structure and Practice
of National Socialism (Chicago: Ivan R. Dee, 2009).
18 See Schmitt’s (untitled) lecture in Max Schlenker (ed.) Mitteilungen des Vereins
zur Wahrung der gemeinsamen wirtschaftlichen Interessen in Rheinland und
128 Dimitrios Kivotidis

Langnamverein, when he called for a ‘rollback of the state [in the economy] to
a natural and correct amount’.19 The qualitative total state must replace its
quantitative counterpart, a weak, social-democratic inspired interventionist
state. The capitalist economy should be self-administered, meaning that the
economic leaders, owners and managers need to be given substantial auton-
omy in their industries and factories, and they need to be freed from social-
democratic forms of regulation.20
Schmitt’s argument here is still one of ‘efficiency’. Not only the ‘efficiency’
of the qualitative total state in making the political decision but also the
‘efficiency’ of the qualitative state with regards to economic planning: for
Schmitt, the economically dominant should plan and the state should provide
the legal and institutional preconditions, as opposed to a system in which a
pluralist party and welfare state reflects the working-class struggle in the form
of concessions and freedoms granted to the exploited class in order to avoid a
radical overthrow of the property regime. Therefore, the exceptional form
safeguards the bourgeois rule not only by eradicating the communist threat
but also by promoting and consolidating the interests of monopoly capital.
In both its program and its fact, the so-called ‘qualitative total state’
bases itself on the fundamental condition for the reproduction of capitalist
relations, i.e. private property. The exceptional form is thus essential for the
reproduction of normality, or to use Fraenkel’s terminology, the ‘prerogative
state’ and the ‘normative state’ have a symbiotic relation: exceptional
powers and arbitrariness are necessary in order to reproduce the conditions
of capitalist production and as long as they do not threaten the reproduction
of these conditions. In his first Reichstag speech on 25 March 1933, Adolf
Hitler said: ‘The government will on principle safeguard the interests of the
German Nation not by roundabout ways of bureaucracy organised by the
state but by encouraging private initiative and by recognising private prop-
erty.’21 This function the ‘qualitative total state’ shares with its predecessor,

Westfalen (Düsseldorf: Matthias Strucken, 1930), 458–59. A translation is found

in Renato Cristi, Carl Schmitt and Authoritarian Liberalism (Cardiff: University
of Wales Press, 1998), 212–233.
19 Scheuerman, Carl Schmitt: The End of Law, 288.
20 An example of this self-administration of capital, enabled by the qualitative total
state, can be found in an order of the minister of economics of 12 November
1936, which transferred a great deal of responsibility for the supervision of the
activities of the cartels from governmental authorities to bodies of the economic
self-administration. The minister wrote: ‘It is my intention to obtain the co-
operation of private economic organisations in the execution of the supervisory
activities of the cartels which my ministry has hitherto exercised alone. The
administrative bodies of the private economic organisations should be responsible
for seeing that the cartels are in harmony with the economic policy of the gov-
ernment in every respect.’ See Fraenkel, The Dual State, 97.
21 Ibid., 60.
 ‘Norm’ and ‘exception’ 129

i.e. the ‘quantitative total state’, which according to Schmitt was ‘a totality
of weaknesses’.22
It should not be forgotten that after the end of the First World War and
Germany’s defeat, an intensified economic and socio-political crisis broke out
in the country. In November 1918, many German cities were the locus of
armed insurgencies, which led to the overtaking of governmental buildings
and the declaration of soviet (workers’ councils) rule, while a revolutionary
government was formed, which ruled over a substantive part of the country.
After a series of conflicts, in January 1919 the armed militia of the workers
were defeated and Karl Liebknecht and Rosa Luxemburg, the leaders of the
Spartacists, were murdered by the Freikorps.
The Weimar Constitution must be assessed in this context as the constitu-
tion of a bourgeois state in the need to reproduce itself in the face of multi-
level threat.23 The public legal form is assessed in its unity with the socio-
economic and political context; and the Weimar form was assumed by a
bourgeois state in need of reproducing itself. The Weimar Constitution, which
crystallised a new form of bourgeois state, can be seen as the German ruling
class’s response to the proletarian revolution: a state not indifferent to the
movement of economy, a state that does not recognise as its subject only the
private citizen but also the members of the exploited classes, which it seeks to
include in its provisions.
Originating in the context of highly intensified contradictions, the Weimar
Constitution was an example of the move from an individualist to a more
corporate24 model of constitutionalism, performing two important and inter-
related functions, i.e. the constitutionalisation of labour law and the intro-
duction of measures of ‘economic democracy’. However, despite the declared
intentions of its authors to combat the imbalance between capital and labour,
inherent in capitalist relations, the roots of the imbalance, located in the pri-
vate ownership of the means of production, were reproduced. Therefore, in
spite of its progressive nature, the Weimar Constitution ultimately served to
reproduce the capitalist relations of production by performing (objectively,
even though not consciously at all times) three very important functions:
demobilising the labour movement; promoting policies of class collaboration;
and promoting an ideology of non-radicalism.

22 Carl Schmitt, ‘Sound Economy – Strong State’, Appendix to Cristi, Carl Schmitt
and Authoritarian Liberalism.
23 On this issue see Enzo Traverso, Fire and Blood: The European Civil War, 1914–
1945 (London: Verso, 2016) and Pierre Broué, The German Revolution, 1917–
1923 (Chicago: Haymarket Books, 2006).
24 For the purposes of the following analysis corporatism refers to the state model
which is based on the one hand on the political principles of ‘national sover-
eignty’ and on the other on the socio-economic principles of collaboration of the
various classes engaged in production; see Fausto Pitigliani, The Italian Cor-
porative State (London: P. S. King, 1933).
130 Dimitrios Kivotidis

Ultimately, it is argued that Weimar is an example of how the constitu-

tional form (the corporate-welfare form of the Weimar constitution) could
neither contain nor withstand the capitalist antagonisms and contradictions
it overlaid. It sought to preserve the basis of the German capitalist social
formation, i.e. private ownership, while recognising the existence of domi-
nated classes and incorporating rights pertaining to the latter. It thus con-
tributed to the reproduction of the regime of power, property and productive
relations of capitalism, albeit in a form different from any other capitalist
state encountered thus far. However, after the 1929 capitalist crisis, it
became evident that the welfare state could no longer accommodate the
interests of the ruling class and was eventually negated by the qualitative
form of the Nazi state.
If the ‘quantitative-Weimar’ form was vital for the reproduction of capital-
ist relations in the face of the 1919 working-class revolt, the ‘qualitative-Nazi’
form was vital for the reproduction of the same in the face of intensified
socio-economic contradictions following the Great Depression. The new form
of exercise of public power was more effective in ensuring the reproduction
and profitability of capitalism by negating the form of the quantitative total
state that was unable to make the political decision and could no longer
accommodate the contradictory interests of the ruling class.
It has to be noted that the German ruling class of the interwar period was
not a metaphysical subject, which decided en bloc and had a single uniform
voice. On the contrary, it was replete with conflicting interests that struggled
against each other for the best way out of the crisis and for the state form to
best accommodate this process.25 However, it is argued here that these con-
flicting groups were unified in the process of dealing with the common
enemy, i.e. the working-class movement, for facilitating conditions of inten-
sified exploitation, based on the extraction of absolute surplus value. It was
for this reason, ultimately, that the dictatorial form of the Nazi state came
to being: to consolidate the bourgeois rule and facilitate the intensification
of exploitation.
As far as the intra-class conflicts are concerned, it has been argued that
during the interwar period the German businesses were divided into two main
groups: those that demanded a policy of free trade, such as the textile and
pharmaceutical industries, and those that tended towards protectionism, such
as the industries of agriculture, iron and steel.26 By the end of the 1920s, the
leading role had fallen to the former, the so-called new industries, i.e. the
large-scale finishing ones such as the big chemical firms, the heavy machine
manufacturers and the electro-industry, while the iron and steel industries had
slipped into a subordinate position. This was hardly to the liking of the latter,

25 Alfred Sohn-Rethel, Economy and Class Structure of German Fascism (London:

Process Press, 1987).
26 Ibid., 16.
 ‘Norm’ and ‘exception’ 131

whose aims for realising the full productive potential of their plant could be
served only by a determined policy of re-armament.27
The process of concentration of the decisive elements of German monopoly
capital in a new grouping of interests is described by Alfred Sohn-Rethel.
According to his analysis, on the one hand the establishment of fascism in Ger-
many in January 1933 was a result of the political victory of the dysfunctional
groups of big and small businesses over the financially sound parts of the German
economy, since, by the end of 1932, the near entirety of German finance capital
had coalesced on a policy bent on violent expansion and war.28 Germany’s pro-
duction capacities were far too large for its own narrow market. Hence, the need
for a larger internal market arose. This was expressed in the Nazi theory of the
‘living space’, but also in the expansion of the armament policies.
On the other hand, the victory of one group of businesses over the other, as
expressed in the decision of the German investment industries to expand their
monopoly market by means of their Central European policy, was underlined
by and corresponded closely with the common interest in suppressing wages
and increasing the number of working hours. If wages were not curtailed as
soon as possible, capital would be. This is because the crisis had seen a large
section of industry caught between the variable costs of wages and the fixed
ones of capital. If losses were not compensated by wage cuts, many businesses
would be pushed over the brink.29 A reversion of the capitalist mode of pro-
duction from relative to absolute surplus value extraction (i.e. intensification
of exploitation through increase in the number of working hours and drop in
real wages) was necessary for the German capital not to spiral downwards
into inescapable crisis again, as it did in 1929.
Of course, the attack on workers’ rights and the implementation of policies
directed at the lowering of labour costs did not begin with Hitler’s rise to
power. Ever since September 1926, the German industrialists had showed that
they could no longer afford the gains won by the working class between 1918
and 1923 by issuing a statement attacking the so-called ‘too generous dis-
tribution of social benefits’ and calling for a ‘reduction of the burden of
taxation’ in order to ‘restore the profitability of the economy’.30 Just weeks
after the Wall Street crash, the League of German Industry called for the
welfare state to be ‘adapted to the limits of economic sustainability’ decrying
‘unjustified and immoral abuse’ of social security benefits because in their
eyes the economic crisis had been caused by a bloated welfare state, high
wages and short working hours.31

27 Ibid., 46.
28 Ibid., 89.
29 Ibid., 55.
30 Ibid., 8.
31 Marcel Bois, ‘Hitler Wasn’t Inevitable’, Jacobin, 25 November 2015, available at
www.jacobinmag.com/2015/11/nuremberg-trials-hitler-goebbels-himmler-germa
n-communist-social-democrats/
132 Dimitrios Kivotidis

What German finance capital needed above all was to break out of the
falling rate of profit by the only means in existence that depended neither on
other capitalist powers nor on the world market, i.e. a forced raising of the
rate of surplus value by the slashing of the workers’ wages.32 This economic
need was met by Hitler’s policies that consisted of a systematic lowering of
wages. The millions of unemployed were gradually re-employed at rates of
pay no higher, or hardly so, than their unemployment benefit. This was
vividly captured by the slogan ‘Work for all, not wealth for all’, as the Nazis
expressed it after they had smashed the trade unions. The great mass of
financially weak firms welcomed Hitler’s economic ‘revival’ methods insofar
as through them they could escape the more or less acute danger of
bankruptcy.33
But the aggressive policies necessary to achieve this systematic lowering of
wages involved a sustained attack on workers’ rights that were safeguarded by
the Weimar Constitution. The leaders of German industries were well aware
that the policies they were compelled to pursue in the economic crisis, with
the attacks on all sections of the workers, including those who had gained by
the previous social legislation, would inevitably result in the weakening of the
basis of Social Democracy. These policies could not be realised in conditions
of intensified class struggle and growing militancy of the workers, unless the
bourgeois elite was able to smash not only the proletarian political organisa-
tions but also the mass basis appropriate to the previous system of control
through relative surplus value production, namely the trade unions and social
democracy. The best analysis of the reasons that necessitated the change from
the Weimar to the Nazi form was made before the Reichstag on 21 May 1935
by Adolf Hitler himself:

In order to assure the functioning of the national economy it became

necessary to arrest the movement of wages and prices. It was also neces-
sary to stop all interferences which are not in accord with the higher
interests of our national economy, i.e. it was imperative to eliminate all
class organisations which pursued their own policies with regard to wages
and prices. The destruction of the class-struggle organisations of employ-
ers as well as of employees required the analogous elimination of those
political parties which were financed and supported by those interest
groups. This process, in its turn, caused the introduction of a new con-
structive and effective ‘living constitution’ and the refoundation of Reich
and State.34

32 Sohn-Rethel, Economy and Class Structure of German Fascism, 89.

33 Ibid., 39.
34 As quoted in Fraenkel, The Dual State, 187 [emphasis added].
 ‘Norm’ and ‘exception’ 133

As a former Nazi official, Albert Krebs described in his memoirs: ‘[n]ot all
capitalists were particularly enthusiastic about the Nazis, but their scepticism
was relative and ended as soon as it became clear that Hitler was the only
person capable of destroying the labour movement’.35 The Nazi state form
and the Nazi economic model formed a unified yet contradictory whole,
which is reflected in the concept of ‘qualitative total state’ in Schmitt’s theo-
retical framework. These new economic and political forms corresponded to
the intensified capitalist contradictions after the capitalist crisis and the
objective need to restore the profitability of German enterprises by advancing
a new political system that would crush the working-class movement.
The essence of National Socialist social policy consisted in the reproduc-
tion of the class character of the German social formation, in the attempted
consolidation of its ruling class, in the atomization of the subordinate strata
through the destruction of every autonomous group mediating between them
and the state, and in the creation of a system of autocratic bureaucracies
interfering in all human relations.36 The maintenance of capitalist ownership,
‘private enterprise’, and the recovery of ‘profits’ and ‘profitability’ accom-
panied with moderate state intervention in a regulatory role were character-
istics of the interwar corporatist state, and were reflected in Schmitt’s
economic model of the ‘qualitative total state’.
We conclude that the Nazi form of government, as well as the Nazi eco-
nomic model, was necessitated by the intensification of class and intra-class
conflicts. The deadlock in the economy and the contradictions between pro-
tectionism and inflation were manifestations of capitalist contradictions. But
the capitalists were unified against the main opponent, namely the working
class organised in workers’ unions and workers’ parties. The measures against
the workers had to be passed and for this the communist threat had to be
extinguished. This urgency for action on the part of the industrial capitalists
was reflected in the use of the extra-ordinary law-making provisions, of Arti-
cle 48, in the Reichstag Fire Decree, and of Article 76 in the passing of the
Enabling Act, which consolidated the Nazi rule.

State form and intensified exploitation

The Nazi state form reproduced the foundational condition of the capitalist
relations of production (i.e. private property) in the face of rising class and
intra-class contradictions. In order to achieve this goal it functioned so as to
unify the competing ruling-class fractions, containing any centrifugal tenden-
cies. Simultaneously, and equally significant, it enabled the conditions of
intensified exploitation by violently suppressing the labour movement and

35 Albert Krebs, The Infancy of Nazism: The Memoirs of Ex-Gauleiter Albert Krebs
(London: New Viewpoints, 1976).
36 Neumann, Behemoth, 365.
134 Dimitrios Kivotidis

eliminating any resistance to aggressive capitalist policies. It can safely be

argued that throughout its existence the Nazi form was vital for maintaining
the legal foundations of the capitalistic economic order.37
Having looked at the main factors, which necessitated the change in the
form of exercise of public power, it is time to reflect upon the specific function
of plebiscitary legitimacy, as concretised in the principles of ‘leadership’ and
‘political unity’ which appear in Schmitt’s work. What novelty does this form
bring? How does the main legitimating mechanism, based on the concept of
the ‘people’, adapt to the new socio-economic configuration? To begin
answering this question it is important to go back to Schmitt’s ‘quantitative-
qualitative’ total state distinction and revisit his idea of the political. As
mentioned above, the legal Rechtsstaat was considered inefficient and was
criticised by Schmitt precisely because it failed to make the ultimate political
decision, i.e. it failed to decide between ‘friend and enemy’.38
This legal Rechtsstaat was also a ‘quantitative total state’ in the sense of
providing many parties or interest groups with the chance ‘to make their
political decision’ and decide on their ‘friends and enemies’39. Against this
total state, against the neutralised liberal democratic state, Schmitt advocates
the total de-politicisation of civil society and the total concentration of poli-
tical power in an authoritarian state. To repeat a point raised earlier, the
‘political’ decision (as well as the use of the ‘political premium’ to enact this
decision) is not for everyone. It appears then that Schmitt is fundamentally
against ‘the political’. His concept of the political is a form of bourgeois
ideology to the extent that the socio-political content of the decision on the
friend and enemy is revealed and thus the decision itself is reserved for the
representatives of the interests of the bourgeois class. Social groups, trade
unions, must have no political voice of their own. They must not be allowed
to express their own economic and political interests. A qualitative total state
rises above the conflicts within society, and ensures its reproduction, while
suppressing these contradictions. The question ‘in whose interests’ has already
been answered above.
This deep de-politicisation of society had to take place in the form of its
opposite, i.e. extreme politicisation. One aspect of this was the process of
blurring, or rather a redrawing, of the dividing line between political and non-
political acts.
The second law regarding the jurisdiction of the political police, i.e. the
Gestapo (Gesetz über die Geheime Staatspolizei of 30 November 1933), pro-
vided for the abolition of judicial review of all acts of the Gestapo, but also of
all acts of ordinary police pursuant upon special orders of the Gestapo, all

37 Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship, 72.

38 Carl Schmitt, The Concept of the Political, George Schwab transl. (Chicago:
University of Chicago Press, 1996 [1929]), 26.
39 Ibid., 27–28.
 ‘Norm’ and ‘exception’ 135

acts of the ordinary police pursuant upon general orders of the Gestapo and
all acts of the ordinary police which fall within the jurisdiction of the
Gestapo.40 The classification of more and more actions as ‘political’, rather
than private, so that they would fall within the jurisdiction of the Gestapo,
whose actions were not subject to judicial review, was essential for the
exceptional Nazi state form.
Furthermore, this process of politicisation appears in the form of the ple-
biscite and the identification of rulers and ruled. In his early analysis of the
Weimar form, even before the Nazi form, the election of the Reichspraesident
was interpreted by Schmitt as something different from a democratic elec-
tion41; it was seen as a plebiscitarian acclamation. It is no wonder then that in
the Nazi form of the plebiscite, popular sovereignty reaches an extreme point
of hollowness. Only a decisionist president, a leader (Führer) could escape
civil society’s centrifugal pluralism, and ‘unify the people’ by holding its trust.
It could thus provide the perfect legitimating mechanism for a class-colla-
borative form of state to reproduce the conditions of intensified exploitation
necessary for the recovery and expansion of German capital.
The plebiscite, this new form of legitimation, was cohesive with (even
though different from) parliamentary elections, which it superseded. They
both share an abstract and class-less conception of the ‘people’. The people
appear on stage when they are asked to vote, and then recede in the back-
ground once they have ‘blessed’ and legitimised a new round of policies,
which they have supposedly chosen in an expression of the ‘general will’.
But whereas in liberal democracy an election provides an opportunity for
freewheeling debate about candidates and political parties, and the election
is seen as culminating in some ‘normativisation’ (i.e. a piece of general law
deriving its legitimacy from rational debate), the Schmittian plebiscite is
simply a ‘decision giving expression to an act of will’, a means by which the
popular masses can hope to approximate ‘a pure decision not based on
reason and discussion and not justifying itself ’.42 The plebiscite as a dis-
tinctive form has the advantage for the ruling class to present the voters with
only an extremely limited choice, a polarising and reductionist distortion of
the many-sided reality. Moreover, it deals in binaries and has the added
advantage of the voters’ utter dependence on the way the question is for-
mulated (as Schmitt himself points out in his ‘Legality and Legitimacy’).
Therefore, plebiscitary legitimacy and the leadership principle served a
double purpose: on the one hand they acted as a unifying force against cen-
trifugal tendencies, a form accommodating the reconsolidation of German
capital. On the other hand they provided the legitimating mechanism neces-
sary for the conditions of intensified exploitation. For this reason, the effect of

40 Ibid., 27.
41 Schmitt, Constitutional Theory.
42 Scheuerman, Carl Schmitt: The End of Law, 102.
136 Dimitrios Kivotidis

the leadership principle was not confined to constitutional law but is

encountered in Nazi Germany’s labour law too. The Nazi state was a ‘quali-
tative total state’ indeed, as it set up the German Labour Front comprising
both employers and employees, no longer called by the old names but now
termed ‘leaders’ and ‘followers’. The Law for the Organization of National
Labour was issued on 20 January 1934 and under it the German Labour
Front was the inclusive organisation of German brain and hand workers.43
It is pertinent here to raise a comparative point on the relation between the
German Labour Front and the Weimar system of labour law. First, with
regards to Weimar, paragraph 1 of the Works Council Law of 4 February
1920 states as one of the two basic objectives of the Works Councils: ‘to
support the entrepreneur in fulfilling the works-objectives’44. Similarly, para-
graph 1 of the 1934 Law for the Ordering of National Work provides: ‘The
entrepreneur, as leader of the works, and the employees and workers, as his
following, work together in the works for the advancement of the works-
objectives and for the common service of people and state.’45 It is evident that
both provisions share the notion of ‘works-objectives’, which obfuscates the
contradictory interests of capital and labour in the production process.
Moreover, the provisions share a depiction of the employer as the leader of
this works-community, even though the leadership principle is much more
obvious in the Nazi legislation.
Returning to the German Labour Front, this was a crucial element of the
qualitative total state, as it was the main mechanism of class collaboration. The
interests of workers, i.e. the ‘followers’, were identified with the interests of
capitalists, i.e. the ‘leaders’. We find here the leadership principle at work in the
sphere of labour law. The ‘leader’ makes the real decisions and this fact became
undeniable in 1935, when the Reich Chamber of Economics (a bureaucratic
organisation, containing all the employers in Germany, controlled by the Min-
istry of Economics) joined the Labour Front.46 The German Labour Front
employed the Führerprinzip in the economy and, as the main form of class
collaboration, provided the Nazi regime with the social power base necessary
for its reproduction. Nazism as reconsolidation of the bourgeois regime would
be unsuccessful unless it managed to bind to itself social strata which socially
do not form part of the bourgeoisie but which would afford it the inestimable
service of anchoring its rule in the people.47 If the Labour Front was the
mechanism used to make this in the economy, plebiscitary legitimacy and the
leadership principle were the main legitimating mechanisms to achieve this in
the sphere of constitutional law and ideological legitimation of power.

43 Norman Thomas, ‘Labour Under the Nazis’ (1936) 14(3) Foreign Affairs 424.
44 David Kettler, ‘Works Community and Workers’ Organization: A Central Pro-
blem in Weimar Labour Law’, (1984) 13 Economy and Society, 278, 296.
45 Ibid.
46 Ibid.
47 Scheuerman, Carl Schmitt: The End of Law, 122.
 ‘Norm’ and ‘exception’ 137

It follows from the above that changes in German constitutional law and
changes in German labour law were intertwined during the interwar period.
The reason for this was shown to have been the intensification of social and
economic contradictions. Abolishing the rights to strike and collective bar-
gaining and crushing the working-class movement while creating a new
social basis based on the principle of class collaboration could not have been
achieved unless the form of exercise of public power had changed. The
interwar model of the corporate state48 was based on the one hand on the
principles of ‘national sovereignty’ and ‘national unity’ and on the other
hand on a concept implicit in the state system, which Fascism desires to
build up – namely, the economic collaboration of the various categories
engaged in production.49 Schmitt’s theoretical framework accommodates
both these principles, as is evident in the above analysis.
We conclude that the normal and the exceptional forms of exercise of
public power are different but not separated. They are rather united in their
difference. A fundamental necessity underlies both norm and exception: the
necessity of a regime of power, property and productive relations. The ordin-
ary function of the rule of law, which safeguards this regime, is conditional
upon the non-occurrence of the always existent and imminent danger, which
Schmitt terms as the ‘ever-present possibility of conflict’.50 It has been argued
that this ‘ever-present possibility of conflict’ stands for the intensification of
social antagonisms. This concept includes a multiplicity of factors (intra-class
conflicts and class struggle) that might necessitate a change in the form of
exercise of public power.

48 Franz Neumann held that the Nazi state form was incompatible with the model
of the corporate state because for National Socialism the primacy of politics is
decisive. The reason he gives for this is that the Nazi Party never allowed itself to
put the economic questions into the foreground and to announce comprehensive
economic official party programs. It always insisted on the primacy of politics
over economics and therefore consciously remained a political party without any
basic economic orientation: see Neumann, Behemoth, 232. However, the struc-
tural role of a political party in a social formation is hardly restricted to its poli-
tical intentions and announcements through party programmes. It is, on the
contrary, assessed by the objective effect its policies have in the social formation.
Neumann himself acknowledges that the role played by the German Labour
Front was one of promoting ideas and practices of class collaboration, under the
influence of corporative ideas: see Neumann, Behemoth, 414. In this respect the
Front served five crucial functions: the indoctrination of labour with the National
Socialist ideology, the taxation of the German working class; the securing of
positions for reliable party members, the atomization of the German working
classes, and the exercise of certain inner trade-union functions: see Neumann,
Behemoth, 417.
49 Fausto Pitigliani, The Italian Corporative State.
50 Carl Schmitt, The Concept of the Political.
138 Dimitrios Kivotidis

Conclusion
The above analysis showed the indissoluble union between ‘norm’ and
‘exception’, as well as between all the other dualisms employed by Schmitt to
characterise the different forms of exercise of public power. Schmitt’s dualisms
were examined in their socio-political context to unearth the content that the
different forms corresponded to. This move from political theology to poli-
tical economy meant that we had to discuss not the state in the abstract, but
the capitalist state, not sovereignty in the abstract, but the economic and
political power of a dominant class, not the ‘decision’ in the abstract, but the
decision based on socially and historically conditioned interests, not the ‘ever-
present possibility of conflict’, but the ever-present possibility of suspending
the rule of law, in order to deal with the internal enemy, which is nothing else
than the threat to the capitalist state
Rather than being taken from outside (ex-capere), the exception emerges
from within the law – it is bound within law because it corresponds to the
foundational need of the bourgeois state to reproduce itself in the face of
threat. The ‘normal’ and the ‘exceptional’ forms correspond to different his-
torical situations, to different levels of intensification socio-economic contra-
dictions, but they both serve the ultimate function of ensuring the
reproduction of a regime of power, property and productive relations. The
above analysis did not reduce the liberal democratic form of government to
the authoritarian one. Rather, it stressed the differences and the reasons
behind the differences of the two forms by focusing on the commonalities
between them: on the capitalist relations that were reproduced by both as well
as on the working-class movement that was obstructed by both, albeit in dif-
ferent ways.
It is perhaps under this prism that Walter Benjamin’s 8th thesis on the
Concept of History can be better assessed. The ‘emergency situation’ should
be understood from the standpoint of the exploited and the oppressed. This,
according to Mark Neocleous, means that:

if emergency powers have been historically aimed at the oppressed (in

advanced capitalist states against the proletariat and its various struggles,
in reactionary regimes against genuine politicization of the people, in
colonial systems against popular mobilization), then they need to be
fought not by demanding a return to the “normal” rule of law, but in
what Benjamin calls a real state of emergency.51

One could argue then that this ‘real state of emergency’ corresponds to the
‘right of necessity’, the ‘right of extreme need’ that is found in the Hegelian

51 Mark Neocleous, ‘The Problem with Normality: Taking Exception to ‘Permanent

Emergency’, (2006) 31 Alternatives, no. 2, 191–213.
 ‘Norm’ and ‘exception’ 139

analysis of the institution of the Notrecht. Hegel’s Notrecht is the ‘right of

extreme need’ of those who risk starving to death; not only do they have the
right to steal the bread that will keep them alive, but the ‘absolute right’ to
transgress the one-sided right of property, that legal norm which condemns
theft.52 In the same manner, the exploited and the oppressed can invoke
their ‘right of need’, the ‘real state of necessity’, to question not only the
exceptional form which infringes upon their formal rights, but the validity of
the capitalist property regime itself which thwarts the satisfaction of their
vital social needs.

52 Domenico Losurdo, Hegel and the Freedom of the Moderns (Durham: Duke
University Press, 2004), 87.
Chapter 7

‘Our Fatherland has found itself on

the verge of an abyss’
Poland’s 1981 martial law, or the
unexpected appearance of the state of
exception under actually existing socialism1
Rafał Mańko

Introduction
It is a horrible, monstrous shame for the Party that after 36 years in power it
has to be defended by the police. But there is nothing else left ahead of us.
General Wojciech Jaruzelski2

‘[L]aw … nourishes itself on [the] exception and is a dead letter without it,’3
Giorgio Agamben wrote. But does the signifier ‘law’ refer here to feudal and
capitalist law, or also to law in a state-socialist polity? Is the state of exception
limited to bourgeois legality and the efforts of its ruling classes to strip the
proletariat of the scant legal protections it had won, or is it also possible under
conditions of so-called ‘socialist legality’? The Polish state of emergency, tech-
nically known as ‘state of war’ (stan wojenny), proclaimed on the night of 12–
13 December 1981, ‘conventionally translated [into English] as ‘martial law’4

1 I would like to thank Cosmin Cercel, Przemysław Tacik, Gian Giacomo Fusco,
Mikhail Antonov and Tormod Otter Johanssen for reading and commenting on
earlier versions of this chapter and for sharing with me their insightful ideas. The
present chapter presents exclusively my personal views and should not be attrib-
uted to any institution.
2 ‘Protocol No. 18 of PUWP CC Politburo Meeting, December 5, 1981’ in Andrzej
Paczkowski and Malcolm Byrne (eds), From Solidarity to Martial Law: The
Polish Crisis 1980–1981 (Budapest, New York: Central European University
Press. 2007), 443.
3 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Daniel Heller-
Roazen transl. (Stanford: Stanford University Press, 1998), 27.
4 Brian Porter-Szűcs, Poland in the Modern World: Beyond Martyrdom (Chichester:
John Wiley & Sons, 2014) 303. On the terminology, cf. Giorgio Agamben, State
of Exception, Kevin Attell transl. (Chicago: University of Chicago Press, 2005) 4.
Indeed, the translation ‘martial law’ correctly conveys the link with war present in
the Polish term.
 Poland’s 1981 martial law 141

is, apparently, a unique example – beside wartime communism5 – of the use of

this ancient legal device6 in a polity priding itself, even in the Constitution, on
being a socialist country where the working class is the sovereign.7
The present chapter aims at presenting the juridical nature of the Martial
Law8 in its broader political, economic and social context. That context is
different from states of exception in capitalist polities, and therefore, in the
next section I will put a strong emphasis on the ‘normalcy’ of state socialism,
including the place of law and fundamental rights in that concrete order. Only
against that background can the actual juridical value of the Martial Law be
evaluated. The question whether there indeed existed an exceptional situation
in December 1981 is a crucial one, as it determines whether the state of
exception was justified in the light of the Constitution of the Polish People’s
Republic, or not. The possibility of a ‘fraternal aid’ from Poland’s Warsaw
Pact allies, keen on preserving authoritarian state socialism, is only one aspect
of the exceptionality, discussed in the subsequent section. The economic,
social but above all internal political situation – with the movement of Soli-
darność (Solidarity) challenging the hegemonic role of the Leninist party (i.e.
the Polish United Workers’ Party, henceforth the ‘Party’) – amounted to an
exceptional situation, as I will argue. The next section, perhaps the most law-
centric one in this chapter, provides a brief overview of the juridical acts
introducing martial law – that is, the resolution of the Council of State and
the accompanying legislative decrees which, in my view, were all perfectly
legal under the state-socialist constitution of the period. Finally, in the last
section, I address the question of the nature of General Jaruzelski’s dictatura,
specifically asking about its commissary or sovereign character, and about its
role in transforming the Polish polity and building the foundations of the ‘rule
of law’.

5 Cercel notes that wartime communism ‘is and can be regarded as a dictatorship
or even more as a state of exception’ of a ‘transitional character’ See Cosmin
Cercel, Towards a Jurisprudence of State Communism: Law and the Failure of
Communism (London: Routledge, 2018), 93.
6 On the other hand, Cercel argues that the Stalinist defence of legality ‘was his-
torically consubstantial with a normalised state of exception marked by extra-
judicial measures, deportations and killings, and (…) was itself a state of
exception insofar as it tended to protected both the existing posiitve law and the
form of legality’ (Cercel, Towards a Jurisprudence, 103). However, in the case of
Stalinism, the institution of the state of exception was not used as such. The state
of exception was, arguably, practised, but not as a question of legal form, but
rather actual functioning of the repressive apparatus of the Soviet state.
7 Article 1 of the Constitution of the Polish People’s Republic of 22 July 1952,
consolidated version of 16 February 1976, Dziennik Ustaw PRL 1976, no 7, item
36.
8 I will use the expression ‘Martial Law’ in capital letters to denote the Polish
martial law declared on 12/13 December 1981 as a unique historical event.
142 Rafał Mańko

An exception from what? State-socialist ‘normalcy’

Any state of emergency is always an exception from a certain ‘normal
situation’, which allows the legal order to ‘make sense’, as Carl Schmitt
wrote.9 To define this normal situation, I will refer to the concept of state
socialism (known also as ‘state communism’ or ‘actually existing socialism’)
as a unique socio-economic and political formation, distinct from capitalism
and feudalism on the one hand, but also from socialism and communism, as
envisaged by Marx, Engels or Lenin, on the other.10 State socialism as a
formation was based on what Ken Jowitt conceptualised as the ‘Leninist
civilisation’,11 a form of organising social life where a key role was played
by the Leninist ‘party of a new type’, a charismatic yet impersonal organi-
sation, convinced of its historical role, combining heroism and arbitrariness
with ‘sober empirical examination of social change.’12 In economic terms,
state socialism was founded on the state ownership of the key means of
production and on central planning.13 In political terms, the hegemony of
the Leninist party, with its system of democratic centralism, was a key ele-
ment of the system. In legal terms, the system of state-socialism was
undoubtedly an authoritarian one.14
The legal order was, in itself, dualist: on the one hand there was the lex
scripta comprising the Constitution, decrees and acts of parliament; on the
other hand, the ius politicum, often unwritten but partly codified in internal
Party documents, enjoyed superiority as the decisive layer of the legal
order.15 It prescribed, in more or less codified forms, the rules of the

9 Carl Schmitt, Political Theology, George Schwab transl. (Cambridge, MA: MIT
Press, 1985), 3.
10 See especially Jan Sowa, Inna Rzeczpospolita jest możliwa! Widma przeszłości,
wizje przyszłości [Another Republic is Possible! Specters of the Past, Visions of
the Future] (Warszawa: WAB, 2015) 108–109. Cf. idem, ‘An Unexpected Twist of
Ideology: Neoliberalism and the collapse of the Soviet Bloc’ (2012) 5 Praktyka
Teoretyczna 153, 161–168.
11 Ken Jowitt, New World Disorder: The Leninist Extinction (Berkeley: University
of California Press, 1992), 1–49.
12 Ibid., 11.
13 Tadeusz Kowalik, From Solidarity to Sellout: The Restoration of Capitalism in
Poland, transl Eliza Lewandowska (New York: Monthly Review Press, 2011) 26.
.
14 Cf. Lech Mazewski, Posttotalitarny autorytaryzm PRL 1956–1989. Analiza
ustrojowopolityczna [Post-Totalitarian Authoritarianism: The Polish People’s
Republic 1956–1989. An Analysis of the Political Constitution] (Warszawa-Biała
Podlaska: Arte, 2010).
15 Cf. Mikhail Antonov, ‘Legal Realism in Soviet and Russian Jurisprudence’,
(2018) 43 Review of Central and East European Law 483. My idea of con-
ceptualising the informal, yet empirically binding rules of the ius politicum as a
layer of the socialist legal system goes against Mikhail Anotonov’s understanding,
who limits the scope of the signifier ‘law’ only to what I call here the lex scripta.
My approach, which I could describe as radically realist, aims to underscore the
importance of the Party’s internal normative system for the constitutional setup
 Poland’s 1981 martial law 143

nomenklatura system, allowing the Party instances to appoint and dismiss

key officials in the constitutional system, including not only ministers,
directors of enterprises, but also prosecutors, judges, military and police
commanders.16 Of course, this duality was not fully recognised and despite
the constitutionalisation of the Party in 1976, it remained partly a taboo.17
In Lacanian terms, one could say that whereas the lex scripta was fully
symbolised, the ius politicum remained, up till 1989, partly symbolised and
partly repressed (as the Real of socialist constitutionalism).
The duality of the legal system reflected the fundamental duality of the
.
party-state political system, conceptualised by Lech Mazewski as the binary
18
structures of the technical and political government. Thus, one could
speak of the Politburo as the political government and the Council of Min-
isters as the technical government. The Council of State was a collective but
merely technical head of state, while the First Secretary was the political
and actual head of state. Individual ministries were reflected in the structure
of the departments of the Central Committee (CC), and each head of
department in the CC oversaw his ‘technical’ counterpart, i.e. a minister.
Even Parliament, whose de iure constitutional role was supreme, was de
facto reduced to a technical body charged with rubber-stamping decisions
made elsewhere. The actual, political assembly of the country was the Cen-
tral Committee of the Party19 which met several times a year and held
actual debates among Party factions, enjoyed the power to elect the Polit-
buro, although it was, itself, elected only by Party members, and not by all
citizens of the Republic.
Emergency legislation usually provides for the more or less extensive sus-
pension of the rule of law and fundamental rights: this is its constitutional
essence. But a state-socialist polity had a rather different approach to these
two notions if compared to a bourgeois liberal state. The operation of the
juridical was guided by the principle of ‘socialist legality’, a concept devised

of a state-socialist polity which, without taking into account the ius politicum,
cannot be properly described only on the basis of the lex scripta. For a different,
and highly originial conceptualisaton in terms of the ‘law of the hegemon’, see
Dawid Bunikowski, ‘Hegemoni i ich prawo w czasach polskiego komunizmu.
Próba analizy prawnoustrojowej i filozoficzno-prawnej’ [Hegemons and their Law
in the Times of Polish Communism: An Attempt at a Constitutional and Legal-
.
Philosophical Analysis] (2010) 9 Roczniki Naukowe Wyzszej Szkoły Bankowej w
Toruniu 95.
16 See e.g. Thomas Lowit, ‘Y a-t-il des États en Europe de l’Est?’ (1979) 20 Revue
française de la sociologie 431; idem, ‘Le Parti polimorphe en Europe de l’Est’
(1979) 29 (4–5) Revue française de science politique 812.
17 I would like to thank Przemysław Tacik for drawing my attention to this aspect.
.
18 Mazewski, Posttotalitarny 40.
19 Stefan Kisielewski, ‘Wywiad ze Stefanem Kisielewskim’ [An Interview with
Stefan Kisielewski] (1956) 6 Kultura 27, at 28 (who even calls the Central Com-
mittee a ‘parliament’).
144 Rafał Mańko

in the 1930s in the USSR.20 In short, socialist legality differed from Western
liberal rule of law in two fundamental aspects. First, it emphasised the duty of
strict observance of the law by citizens and state authorities alike.21 Hence, it was
not so much a shield protecting citizens from government, but rather a sword
allowing the government to control citizens. Second, its central tenet was its class
character: socialist legality was about the legal form of the will of the ruling
class, i.e. theoretically the working people,22 which, however, expressed its will
through the Leninist party.23 Thus, socialist legality was more about giving legal
form to the authoritarian rule of the Party than about protecting citizens from it.
If we look into the question of fundamental rights in a state-socialist polity,
it becomes immediately patent that, in contrast to liberal capitalist states, the
fundamental economic and social rights are placed at the forefront. They
open the constitutional bill of rights and, by and large, they were actually
enforced.24 The state provided heavily subsidised housing, free healthcare, free
education even at university level, heavily subsidised access to culture, paid
holidays and subsidised holiday facilities, etc. As from 1956, abortion was
legal and available for free.25 In contrast, LGBT rights were not recognised,
and in the 1980s members of the LGBT community were even subject to
persecutions as part of a project led by the Ministry of the Interior.26
As concerns political rights, however, their prima facie constitutional for-
mulation did not reflect the reality. One could conceptualise this phenomenon

20 Antonov, ‘Legal Realism’, 505.

21 See e.g. Article 8(2) of the Constitution of the Polish People’s Republic.
22 Se e.g. Jan Ziembiński, ‘Zasada praworządności jako metoda realizacji funkcji
państwa socjalistycznego’ [The Principle of Legality as a Method of Realization
of Function of the Socialist State] (1968) 30(2) Ruch Prawniczy, Ekonomiczny i
Socjologiczny 285, 300. Cf. Antonov, ‘Legal Realism’ 497. On legal instrument-
alism in state-socialist systems see e.g. Alan Uzelac, ‘Survival of the Third Legal
Tradition?’, (2010) 49 Supreme Court Law Review 377.
.
23 Lech Mazewski, System rządów w PRL 1952–1989 [Constitutional System of the
Polish People’s Republic, 1952–1989] (Warszawa-Bielsko-Biała: Arte, 2012).
24 See e.g. Oliver MacDonald, ‘The Polish Vortex: Solidarity and Socialism’ (1983)
139 New Left Review 5, 7.
25 Małgorzata Maciejewska, ‘Aborcja w PRL-u. Ustawa o warunkach dopuszczal-
.
ności przerywania ciązy z 1956 r. w kontekście feministycznym’ [Abortion in the
Polish People’s Republic: The Conditions of Permissibility of Pregnancy Termi-
nation Act 1956 in a Feminist Context] in Jakub Majmurek and Piotr Szumle-
wicz (eds.), PRL bez uprzedzeń [The Polish People’s Republic without Prejudices]
(Warszawa: Książka i Prasa, 2010) 167–184; Antoni Rajkiewicz, ‘Polityka spo-
łeczna w Polsce Ludowej’ [Social Policy in People’s Poland] in Wiesław Żółt-
kowski (ed.), Zrozumieć PRL [Understanding the Polish People’s Republic]
(Warszawa: MUZA SA, 2012) 114.
.
26 Błazej Warkocki, ‘Parametry ukrycia. PRL wobec homoseksualności’ [Hiding
Parameters: Polish People’s Republic and Homosexuality] in Majmurek and Szum-
lewicz (eds), Zrozumieć PRL 197–218; Krzysztof Tomasik, Gejerel. Mniejszości
seksualne w PRL-u [Gejerel: Sexual Minorities in the Polish People’s Republic]
(Warszawa: Wydawnictwo Krytyki Politycznej, 2012).
 Poland’s 1981 martial law 145

either by a very broad abuse of rights doctrine, pointing out that political
rights could be exercised only within the framework of the telos of the Polish
people’s Republic and with respect to the hegemonic role of the Leninist
party, itself constitutionalised in 1976.27 Or, one could simply point to the
dualist character of the legal system and note that the rights guaranteed by
the lex scripta were actually trumped by the ius politicum. All in all, the
political monopoly of the Leninist party excluded the creation of opposition
parties (its subjected allies, the Polish People’s Faction and the Democratic
Faction were called ‘factions’, not ‘parties’, to avoid any misunderstanding),
or of independent trade unions. The only politically independent organisation
in state-socialist Poland was, effectively, the Catholic Church. All these
aspects of state-socialist normalcy, and especially the political hegemony of
the Leninist party and the command system of the economy, came under
unprecedented pressure in 1980/81.

The economic and political crisis preceding the Martial Law

There can be no doubt that, judged against the normalcy of state socialism,
Poland’s situation in 1981 was profoundly exceptional. This exceptionality
manifested itself in three dimensions: economic, socio-political and geopoli-
tical. In economic terms, Poland was going through the deepest economic
crisis since the end of World War II. Following a decade of loans-driven
development in the 1970s, a radical raise of the interest rates and an unfa-
vourable change in terms of trade meant that Poland, alongside Latin Amer-
ican countries, fell into a deep debt crisis. This had also a political dimension,
because the creditors were capitalist states and capitalist banks, meaning that
they were extracting capital rent from a state-socialist country and exerting an
increasing influence upon its economic life.28 Loan repayments were taking
up a growing share of the GNP, leading to a sovereign debt crisis.29 At the
same time, the internal market was unstable. For political reasons, prices were
kept frozen since the 1960s, as attempts to raise them in 1970 and 1976 led to
workers’ unrest and were essentially withdrawn.30 At the same time, workers’
pay demands were generally met, leading to a market imbalance and a large

27 See Article 3(1) of the Polish Constitution (as of 1976): ‘The Polish United
Workers’ Party is the leading political force of society in the construction of
socialism.’
28 MacDonald, ‘The Polish Vortex’, 9.
29 Janusz Szkodlarski, Zarys historii gospodarczej Polski [An Outline of Poland’s
Economic History] (Warszawa: Wydawnictwo Naukowe PWN, 2007) 483–5;
.
Andrzej Dorosz, ‘Zadłuzenie. zagraniczne PRL’ [The Foreign Indebtedness of the
Polish People’s Republic] in Zółtkowski (ed.), Zrozumieć PRL 204–214.
30 Andrzej Leon Sowa, Historia polityczna Polski 1944–1991 [A Political History of
Poland 1944–1991] (Kraków: Wydawnictwo Literackie, 2011), 407–11.
146 Rafał Mańko

excess of cash in the economy, lacking a backing in goods or services that

could be purchased.31
All in all, this difficult economic situation led the government to the con-
clusion that prices and wages have to be finally adjusted in order to restore
market stability. A price adjustment operation was planned for July 1980, and
targeted meat products, increasingly consumed by the Polish working class. It
must be emphasised that the (hidden) price rises of July 1980 were ‘a direct
consequence of the changed line from Western financial centres made clear to
the Polish government in May 1980,’32 themselves a consequences of Poland’s
‘[i]increasing economic integration with the West’.33 They caused a massive
wave of protests of the working class, leading ultimately to the creation of
independent trade unions.
Faced with massive strikes leading to even less market stability (as fewer
goods were produced), the outgoing government under the leadership of First
Secretary Edward Gierek decided to give in to the workers’ demands in
exchange for them going back to work. The workers’ demands were for-
mulated as a list of 21 points, including the legalisation of independent trade
unions, the right to strike, observance of freedom of speech, a broad and
inclusive discussion on the economic reform, as well as a rather generous
social programme (a significant, flat pay rise for all, coupled with an auto-
matic indexation of salaries for the future, significant reduction of pension
age, a five-day working week instead of the six-week one then in force); more
political demands were also included, such as abolition of the nomenklatura
system for management positions or more democratic access to the market
(abolition of commercial prices and internal export shops and introduction of
vouchers for meat and meat products).34 The government largely gave in, and
the social accord took the form of the August Agreements signed on 31
August 1980 in Gdańsk35 and in parallel in other places where strikes took
place. Most crucially, the government promised to legalise independent trade
unions, relax censorship laws, and guarantee the right to strike, as well as to
undertake efforts to fulfil most of the other demands.
Following the signature of the August Agreements, the Party leadership,
which had accepted them, lost the confidence of the Central Committee.

31 Szkodlarski, Zarys, 493–4.

32 Ibid., 9.
33 Ibid.
34 ‘21 postulatów z 17 sierpnia 1980 roku’ [21 Demands of 17 August 1980], avail-
able at www.solidarnosc.org.pl/21-postulatow, accessed 23 January 2020.
35 See ‘Protokół porozumienia zawartego przez Komisję Rządową i Między-
zakładowy Komitet Strajkowy w dniu 31 sierpnia 1980 roku w Stoczni Gdańs-
kiej’ [Minutes of the Agreement Concluded Between the Government
Commission and the Inter-Works Strike Committee on 31 August 1980 at the
Gdańsk Shipyard], available at www.tysol.pl/a10765–Pelny-tekst-21-postulatow-
Porozumienia-Sierpniowe-Zwyciestwo-1980, accessed 5 February 2020.
 Poland’s 1981 martial law 147

Edward Gierek and his Politburo were removed and replaced with a new
leadership under First Secretary Stanisław Kania. Any attempts by the new
government to retreat from the August Agreements met with strikes. Over
time, Solidarity was radicalising itself and gaining an ever-broader mem-
bership base, ultimately reaching ten million members, compared to three
million Party members, in a 35-million population. The movement was
definitely massive, and its political ambitions were growing every month. It
even sought to reach out to workers in other state-socialist countries, as
evidenced by its highly provocative ‘Address to the Working People of
Eastern Europe’, explicitly directed to ‘the workers of Albania, Bulgaria,
Czechoslovakia, German Democratic Republic, Hungary and of the all the
nations of the Soviet Union’, in which they wrote that ‘contrary to lies
propagated in your countries, we are an authentic, ten-million organisation
of employees’.36
In October 1981, Solidarity adopted its official programme during the 1st
Congress of Delegates.37 Characteristically, the content of this document
cannot be found today either on historical websites of Solidarity38 or on the
website of the infamous Institute of National Memory. This is no wonder, as
the fifty-page document did not propose to introduce capitalism or even
market mechanisms, but rather had an openly anarcho-syndicalist and radi-
cally democratic character, demanding the introduction of worker self-man-
agement and ‘socialised planning’ of the economy.39 Not only the enterprises
(thesis 20) but also the media (thesis 32) were to be owned and managed by
society, rather than by the state or by the capital.40 All this allows Jan Sowa
to claim that Solidarity ‘not only was not an anti-communist movement (…)
but also was, in itself, a communist event par excellence.’41 In his view, Soli-
darity’s programme was the embodiment of the ‘revolutionary imaginarium of

36 ‘Posłanie I Krajowego Zjazdu Delegatów NSZZ Solidarność do ludzi pracy

Europy Wschodniej’ [Address of the 1st Congress of Delegates of the Indepen-
dent and Self-Governing Trade Union Solidarity to the Working People of East-
ern Europe] in Dokumenty I tury zjazdu [Documents of the 1st Part of the
Congress], available at www.solidarnosc.org.pl/wszechnica/wp-content/uploads/
2010/10/1-KZD-I-tura-Gdańsk-1981.pdf, accessed 6 February 2020, 94–95.
37 ‘Program NSZZ “Solidarność” uchwalony przez I Krajowy Zjazd Delegatów’,
(2010) Federalista 83, available at http://ofop.eu/sites/ofop.eu/files/biblioteka-pliki/
f1_83-124.pdf, accessed 6 February 2020. The programme is comprised of 37
theses, each of which is explained on 1–2 pages.
38 The programme was initially published as a supplement to the weekly Soli-
darność. However, the online versions available on numerous websites omit the
programme.
39 Jan Sowa, Inna Rzeczpospolita jest możliwa! [A Different Republic is Possible!]
(Warszawa: WAB, 2015), 171.
40 Cf. ibid., 174.
41 Ibid., 177.
148 Rafał Mańko

the society, which had internalised the ideals of equality and socialisation,
foundational to the order introduced in Poland after World War II.’42
In this sense, therefore, Solidarity was a part of the broad revisionist
current within the communist movement, questioning the practices of
state-socialism in the name of what they considered to be an authentic
socialisation of the economy and government. As such, Solidarity was a
direct and to a large extent ideologically internal threat to the concrete
order of the Polish People’s Republic, based on hegemony of the Party and
its domination over the state and of the state over the economy. Solidar-
ity’s demands went even beyond what was practised in socialist Yugoslavia
and aimed at a total constitutional overhaul. On the other hand, it must
be admitted that apart from typically socialist elements of the economic
programme, such as full employment (thesis 9), or the right to housing
(thesis 17), the Solidarity programme also contained elements inspired by
liberal political philosophy, such as political pluralism (thesis 19), judicial
and prosecutorial independence (thesis 24), academic freedom (thesis 30)
and autonomous local government (thesis 21). Solidarity experts even
proposed to introduce direct democracy – referenda as a means of settling
conflicts between Solidarity and the Party.43 Not unsurprisingly, this
admixture of anarcho-syndicalism, political liberalism and radical democ-
racy was extremely alarming to the hegemonic Leninist party in power
and to Poland’s allies in the Warsaw Pact.
In Schmittian terms we can safely say that Solidarity aimed to be a new
pouvoir constituant, aiming at the abolition of Leninist civilisation in Poland,
and its replacement with an anarcho-syndicalist workers’ self-government,
coupled with pluralism and the rule of law, as outlined in the movement’s
official programme (which, in itself, could also have been formulated some-
what more moderately and need not have reflected the demands of the more
radical activists within Solidarity).
On 3 December 1981 the Presidium of the National Coordination Com-
mission of Solidarity, gathered in the city of Radom, adopted a very tough
declaration, approved by the entire Coordination Commission on 12 Decem-
ber 1981. The language was very confrontational, and the Solidarity leader-
ship was wary of the forthcoming legislation on the state of emergency. In the
document we read inter alia that

Regardless of whether the law on extraordinary measures will authorize

the government to put civilians before a military court, ban gatherings

42 Ibid., 179–180.
43 Stefan Kurowski, Grzegorz Palka, Wacław Adamczak and Zbigniew Karwowski,
‘Instytucjonalne zabezpieczenie Programu Ekonomicznego Związku’ [Institu-
tional Safeguards for the Economic Programme of the Union] in Dokumenty I
tury zjazdu 77.
 Poland’s 1981 martial law 149

and restrict traveling, or only to annul the right to strike, it will not be
introduced in any other way than through terror. It would amount to an
attempt to subdue the society through force. Therefore, the Union will
respond to the Sejm’s potential passing of the law on extraordinary
powers for the government with a 24-hour long universal protest strike in
Poland. In case the government takes advantage of the power granted to
it by the Sejm to use extraordinary measures, the Union cells and all
[workers’] crews should inevitably initiate a general strike.44

Radical and very concrete demands were made in categorical language. Soli-
darity indicated that it was not open to compromise on a number of demands,
including a new trade union law following its version, pluralist elections to
local councils on all levels and subordination of state administration to such
councils, change of economic governance giving Solidarity more powers, and
finally access to the media for Solidarity and the Catholic Church.45 This was
the state of mind of Solidarity leadership on 12 December 1981, directly
before Martial Law.
Poland’s domestic situation was, as from the summer of 1980, a reason of
growing concern for its allies in the Warsaw Pact, especially the USSR, GDR
and Czechoslovakia.46 The Soviets created a special commission to oversee
Poland, headed by the orthodox Marxist-Leninist Suslov.47 Large-scale mili-
tary manoeuvres involving the Soviet Army and other Warsaw Pact armies
took place on Polish territory and in the neighbouring countries.48 A special
Soviet command centre was installed nearby Warsaw.49 Of course, we will
never know whether the Soviets were actually intending to repeat the 1953/
1956/1968 scenarios or whether it was all mere bluff. As Mark Kramer rightly
points out, ‘Polish leaders (…) may have genuinely believed that an invasion
would occur if a solution “from within” Poland (i.e., martial law) did not
materialize. Indeed, Soviet leaders themselves may have wanted to create that
impression—even if they did not intend to follow up on it (…).’50
What remains important from the point of view of the exceptionality of the
situation are two facts. First, that Solidarity intended to build an alternative
social and political force, competing with the Leninist party and aiming to

44 Solidarity NCC Presidium, ‘Position Taken by the Presidium of the National

Coordinating Commission and Leaders of the NSZZ. December 3, 1981’ in
Paczkowski and Byrne (eds), From Solidarity, 418.
45 Solidarity NCC Presidium, ‘Position Taken….’, 418–419.
46 MacDonald, ‘Polish Vortex’ 23; Sowa, Historia polityczna, 463–464.
47 Sowa, Historia polityczna, 462
48 Ibid., 471–472.
49 Wojciech Jaruzelski, Starsi o 30 lat [30 Years Older] (Toruń: Adam Marszałek,
2011), 112–113.
50 Mark Kramer, ‘Jaruzelski, the Soviet Union, and the Imposition of Martial Law
in Poland: New Light on the Mystery of December 1981’ (1998) 11 Cold War
International History Project Bulletin 5.
150 Rafał Mańko

deprive it of its hegemony. Second, that it adopted a radical socio-economic

and political programme, incompatible with the concrete order of state soci-
alism. And third, that the Soviets were creating the impression that they
might intervene in a military fashion. This impression was, moreover, shared
by American intelligence, as reflected in the CIA reports for the US pre-
sident.51 If that is how the West perceived the situation, then General Jar-
uzelski cannot be blamed for evaluating it in the same way. But even leaving
aside the external dimension of the situation, in purely internal terms the
exceptionality of what was happening in Poland and the incompatibility of
that situation with the state-socialist constitution cannot be put into question.

A December night’s decrees

The legal framework of the Martial Law

Unlike the 1921 and 1935 constitutions, the Constitution of the Polish Peo-
ple’s Republic of 22 July 1952 did not foresee two distinct types of state of
emergency (a state of exception on internal grounds and martial law on
external security grounds) but only one, called ‘stan wojenny’ (literally, ‘war
state’ or ‘martial law’). It could, however, be introduced both for internal and
external grounds which allows to assume that this uniform legal institution
comprised both forms of the state of emergency in one. The relevant rule on
the martial law was located in Article 33(2), sentence 1:

The Council of State may introduce martial law in a part or on the entire
territory of the Polish People’s Republic if this is required by reasons of
defence or security of the state.

The pre-1939 legislation on the state of exception and martial law, as based
on the 1935 constitution, although formally not repealed, was inapplicable
by virtue of the principle of desuetudo.52 Poland’s post-1944 legal continuity
with the pre-1939 legal order was not unconditional: only legislation that
was compatible with the new political and economic system was considered
to be binding. Therefore, in 1981 Poland found itself in the situation of a
legal vacuum53: there existed the competence norm of Article 33 of the

51 Douglas J MacEachin, US Intelligence and the Polish Crisis: 1980–1981

(Washington, DC: Center for the Study of Intelligence, 2000), esp 3, 12–13, 26,
32, 53, 107–108.
52 Paweł Bała ‘Stan wojenny 13 grudnia 1981 r. jako zagadnienie prawa ustrojowego.
Interpretacja decyzjonistyczna’ [The Martial Law of 13 December 1981 as a Ques-
tion of Constitutional Law: A Decisionist Interpretation] (2013) 21 Przegląd
Sejmowy no 4, 83, 94 n. 49. Cf. Bunikowski, ‘Hegemoni i ich prawo’ 108 n. 30.
.
53 Lech Mazewski, Problem legalności stanu wojenego z 12–13 grudnia 1981 r. Stu-
dium z historii prawa polskiego [The Question of the Legality of the Martial Law
 Poland’s 1981 martial law 151

Constitution empowering the Council of State to introduce martial law, but

there was no detailed legislation specifying what changes in the legal regime
of the state would occur. Importantly, the competence norm of Article 33
did not specifically refer to any such legislation, which could allow it to be
argued that the act introducing the Martial Law (the resolution of the
Council of State) could, simultaneously, lay down the legal order of that
state for the time of its validity.
This approach, however, was not taken up, and instead the Council of
State, gathered during the night of 12/13 December 1981 at an emergency
session which started at 1 a.m.,54 adopted four legislative decrees55 and a
resolution56 introducing the Martial Law.57 Formally, the resolution was
based on the Constitution ‘in conjunction with’ the general decree on martial
law. To underline this logical order, the resolution was published after the
decrees, reflecting its subordination to the purported legal basis. However, as
all acts were adopted at one and the same sitting of the Council of State, and
all were published in the Journal of Laws only on 17 December 1981,58 this
technicality can be seen more as the manifestation of some kind of formalist
obsession of the government lawyers than any real connection. In substantive
legal and political terms, the state of exception was introduced simultaneously
with its legal framework.
At the same time, the Military Council of National Salvation was
established, a body not only not foreseen by the Constitution but para-
doxically not even mentioned in the decrees or the resolution. The Mili-
tary Council did not have any specific constitutional role or political
added value, especially as General Jaruzelski – combining the roles of first
secretary, prime minister, and minister of defence – already possessed all
the necessary powers to govern the country as its dictator (in the Roman
and Schmittian sense of the word). As Andrzej Paczkowski argues, it was
not the Military Council but the so-called ‘Directorate’, composed of the

of 12–13 December 1981: A Study in Polish Legal History] (Warszawa: Wydaw-

nictwo von Borowiecki, 2012), 37.
54 Mieczysław F. Rakowski, Dzienniki polityczne 1981-1983 [Political Diaries 1981-
1983] (Warszawa: Iskry, 2004), 135.
55 They will be discussed below.
56 Uchwała Rady Państwa z dnia 12 grudnia 1981 r. w sprawie wprowadzenia stanu
wojennego ze względu na bezpieczeństwo państwa [Resolution of the Council of
State of 12 December 1981 concerning the introduction of martial law for reasons
connected to the security of the state] (Dz.U. 1981 no 29 item 155).
57 This was the legal decision. The final political decision was taken during the meeting
of generals: Jaruzelski, Janiszewski, Kiszczak and Siwicki at 9 a.m. on Saturday, 12
December 1981. Wojciech Jaruzelski Stan wojenny… dlaczego [The Martial Law…
Why] (Warszawa: BGW, 1992) 412. Cf. Andrzej Paczkowski, Revolution and Coun-
terrevolution in Poland, 1980-1989: Solidarity, Martial Law, and the End of Com-
munism in Europe (Rochester: Rochester University Press, 2015), 50.
.
58 Mazewski, Problem legalności, 49.
152 Rafał Mańko

General’s personnes de confiance, which assisted him in ruling the country

and made ‘operative decisions’.59 Thus, the Military Council was yet another
one of those façade60 bodies and entities that the general had a taste for, such as
the Council of National Agreement (proposed in February 1981 but rejected by
the opposition),61 the Patriotic Movement of National Regeneration (1982–
1989), or the Social Consultative Council, established in 1986, but boycotted by
both the opposition and the Catholic Church.62 Collective bodies with real
power included the Politburo and Secretariat of the Central Committee, on the
party side, and the Council of Ministers and the Government Presidium, on the
state side.63
The legal framework of the martial law was based on a total of four decrees.
The first one, the decree on martial law,64 laid down the substantive provisions.
It suspended a number of constitutional rights, including personal inviolability,
inviolability of abode and correspondence, rights of association,65 freedom of
speech, print, assembly and demonstration. It foresaw the possibility of intro-
ducing curfew and limiting the free movement of persons across the country, it
allowed the suspension of associations, suspended the right to strike and intro-
duced the need to request permission to hold assemblies, unless they were reli-
gious. Workers’ self-government could be suspended,66 preventive censorship

59 Andrzej Paczkowski, ‘Stan wojenny i powojenny stan wojenny: od grudnia 1981 do

stycznia 1989’ [Martial Law and the Post-War Martial Law: from Decemember 1981
until January 1989] in Krzystof Persak and Paweł Machcewicz (eds), 4 Polski Wiek
XX: PRL od grudnia 1970 do stycznia 1989 [Polish 20th Century: the Polish People’s
Republic from December 1970 until January 1989] (Warszawa: Bellona, 2011) 211–
212; idem, Revolution 72-73. Meetings of the ‘Directorate’ held between 14 Decem-
ber 1981 and 5 May 1982 are described in Rakowski’s political diaries (Rakowski,
Dzienniki polityczne 1981-1983, 136-148, 154-156, 186-187, 190, 272-275).
60 Paczkowski, Revolution, 74.
61 See e.g. ‘Notatka z konferencji u Wicepremiera Mieczysława F. Rakowskiego na
temat koncepcji Rady Porozumienia Narodowego (RPN) w dniu 2.II.1981’ [A
Note from a Conference hosted by the Deputy Prime Minister Mieczysław F
Rakowski concerning the Conception of a Council of National Agreement, held
on 2 February 1981] available at www.tygodnikprzeglad.pl/czy-mozliwe-bylo-p
orozumienie-partia-kosciol-solidarnosc/, accessed 5 February 2020.
62 Kazmierz Z Poznański, Poland’s Protracted Transition: Institutional Change and
Economic Growth 1970–1994 (Cambridge: Cambridge University Press, 1996) 148.
63 Paczkowski, Revolution, 73-74.
64 Dekret z dnia 12 grudnia 1981 r. o stanie wojennym [Decree of 12 December
1981 on martial law], Dziennik Ustaw PRL 1981, no 29, item 154
65 See Zarządzenie nr 51 Prezesa Rady Ministrów 13 grudnia 1981 r. w sprawie
zawieszenia działalności związków zawodowych i niektórych organizacji spo-
łecznych na czas obowiązywania stanu wojennego [Order no 51 of the Prime
Minister of 13 December 1981 concerning the suspension of trade unions and
certain other social organisations during the period of the martial law], Monitor
Polski no 30, item 273.
66 See rozporządzenie Rady Ministrów z dnia 30 grudnia 1981 r. w sprawie zawies-
zenia działalności samorządu załóg przedsiębiorstw państwowych na czas
 Poland’s 1981 martial law 153

formally introduced67 (it was not a novelty). Individuals and NGOs were pro-
hibited from owning or using printing devices. Correspondence was to be cen-
sored and phone calls tapped. Police were authorised to uses emergency
measures, including ‘chemical incapacitating agents’, water cannons and even
combat weapons. It made it possible to introduce a duty to work for all above 15
years of age, unless pensioned. Workers could be moved between enterprises and
a six-day working week could be introduced. Rationing of foodstuffs and obli-
gatory supplies from farmers were introduced. Transport could be suspended,
including the closure of border crossings, and telecom services limited.68
Administrative detention of individuals was introduced for persons aged above
17, ‘in relation to which, for reasons of their hitherto conduct, there is a risk that
remaining in liberty they would not conform to the legal order or would under-
take an activity threatening the interests of security or defence of the state.’69
Internment decisions were taken by regional commanders of the police, with the
possibility of appealing the decision to the minister of the interior.70 The decree
provided for the creation of ‘isolation centres’ for those subject to internment,
and for the application mutatis mutandis on rules on pre-trial detention to those
centres.71,72 Ironically, therefore, state-socialist Poland returned to the author-
itarian traditions of pre-1939 capitalist Poland, where administrative detention
had been introduced in 1934, following the military coup of 1926.73

obowia̧zywania stanu wojennego [Ordinance of the Council of Ministers of 30

December 1981 suspending the activity of self-government of the crews of state
enterprises during the period of martial law], Dziennik Ustaw no 32, item 185.
67 See Zarządzenie Prezesa Głównego Urzędu Kontroli Publikacji i Widowisk 12
grudnia 1981 r. w sprawie zasad i trybu udzielania zezwoleń na rozpowszechnia-
nie publikacji i widowisk oraz postępowania przy użytkowaniu zakładów, urząd-
zeń i aparatów poligraficznych w czasie obowiązywania stanu wojennego [Order
of the President of the Chief Office for the Control of Publications and Shows of
12 December 1981 concerning the principles and procedures for granting per-
mission to make available publications and shows and procedure concerning the
use of poligraphic works, appliances and apparatuses during the period of martial
law], Monitor Polski no 30, item 278.
68 Detailed rules on telecommunications were laid down in Rozporządzenie Rady
Ministrów 12 grudnia 1981 r. w sprawie wykonania przepisów dekretu o stanie
wojennym w zakresie łączności [Ordinance of the Council of Ministers of 12
December 1981 concerning the execution of rules of the decree on martial law
concerning telecommunication], Dziennik Ustaw no 29, item 160.
69 Decree on Martial Law, Article 42.
70 Decree on Martial Law, Articles 43–44.
71 Decree on Martial Law, Article 45.
72 Detailed rules on internment were laid down in rozporządzenie Rady Ministrów
12 grudnia 1981 r. w sprawie zasad postępowania w sprawach o internowanie
obywateli polskich [Ordinance of the Council of Ministers of 12 December 1981
regarding the principles of proceeding in cases concerning the internment of
Polish nationals], Dziennik Ustaw no 29, item 159.
73 See especially Rozporządzenie Prezydenta Rzeczypospolitej z dnia 17 czerwca 1934 r.
.
w sprawie osób zagrazających bezpieczeństwu, spokojowi i porządkowi publicznemu
154 Rafał Mańko

Finally, a set of new criminal acts was introduced, with penalties ranging
from a maximum of three to even ten years in prison.74 The criminalised acts
included inter alia the continuing the activity of a suspended organisation, the
organisation of strikes or protest actions, acting to the detriment of the
interests of state security, or the propagation of fake news. Apart from crim-
inal acts, the decree introduced a number of new misdemeanors,75 punishable
by arrest up to three months or a financial penalty up to 5,000 zlotys – almost
half the average monthly salary.76 These included inter alia such acts as par-
ticipation in a strike or protest action, change of residence without permis-
sion, violation of the curfew, presence in a public place without ID, or
abstaining from work.
The Decree on Martial Law was accompanied by a decree on special
proceedings in cases concerning crimes and petty offences,77 a decree
granting jurisdiction over civilians to military courts,78 and a decree on
amnesty for anti-government acts committed before the Martial Law.79
The decree on special proceedings allowed for summary trials in a number
of crimes already foreseen in the Criminal Code, as well as those intro-
duced in the Decree on Martial Law. The decrees were applied swiftly and
effectively with the participation of over 53,000 soldiers.80 As of 14
December, 3,437 individuals were interned,81 the figure rising to 3,926 on
16 December,82 4,450 on 18 December,83 4,612 on 20 December,84 5,540

[Decree of the President of the Republic of 17 June 1934 concerning persons threaten-
ing security, peace and the public order], Dziennik Ustaw no 50, item 473.
74 Decree on Martial Law, Articles 46–51.
75 Decree on Martial Law, Articles 50–51.
76 The average salary in 1981 amounted to 7,689 zlotys, and in 1982–11,631 zlotys.
See ‘Przeciȩtne miesiȩczne wynagrodzenie w latach 1950–2008’ available at www.
infor.pl/prawo/zarobki/zarobki-w-polsce/686166,Przecietne-miesieczne-wynagrod
zenie-w-latach-19502008.html, accessed 26 January 2020.
77 Dekret z dnia 12 grudnia 1981 r. o postępowaniach szczególnych w sprawach o
przestępstwa i wykroczenia w czasie obowiązywania stanu wojennego [Decree of
12 December 1981 on special proceedings for crimes and petty offences during
martial law] (Dz.U. no 29, item 156).
78 Dekret z dnia 12 grudnia 1981 r. o przekazaniu do właściwości sądów wojsko-
wych spraw o niektóre przestępstwa oraz o zmianie ustroju sądów wojskowych i
wojskowych jednostek organizacyjnych Prokuratury PRL w czasie obow-
iązywania stanu wojennego [Decree of 12 December 1981 on the transfer of jur-
isdiction concerning certain crimes to courts martial] (Dz.U no 29, item 157).
79 Dekret z dnia 12 grudnia 1981 r. o przebaczeniu i puszczeniu w niepamiȩć niek-
tórych przestȩpstw i wykroczeń [Decree of 12 December 1981 on amnesty con-
cerning certain crimes and petty offences], Dz.U. no 29, item 158.
80 Paczkowski, Revolution, 94.
81 Rakowski, Dzienniki, 136.
82 Ibid., 138.
83 Ibid., 141.
84 Ibid., 143
 Poland’s 1981 martial law 155

on 24 December,85 and 5,817 on 27 December.86 After that, the figures

started falling: as of 27 January 1982, there were 4,893 interned, but 1,356
had been released from internment,87 and on 5 February 4,394 remained
interned, and 2,066 had been released.88
During the entire period of the Martial Law (13 December 1981 – 21 July
1983) a total of 7,400 individuals were sentenced for crimes related to the
decree on martial law, out of which some 5,700 individuals were sentenced by
courts martial.89 Apart from that, some 208,000 individuals were punished for
martial-law related misdemeanours.90
On 25 January 1982, Parliament assembled for the first time since the
introduction of Martial Law. It adopted an act91 which formally ‘ratified’ the
Martial Law decrees, stating that ‘The Decrees adopted by the Council of
State on 12 December 1981 are hereby ratified’ (Article 1) and that they
remain in force ‘until the adoption of an act on martial law’ (Article 2). On
18 December 1982 the Sejm adopted an act allowing for the suspension of
martial law.92 The next day, the Council of State adopted a resolution sus-
pending martial law as of that day.93 Following almost seven months of its
suspension, the Martial Law was definitely withdrawn by a resolution of the
Council of State of 20 July 1983,94 two days before the main national holiday
of 22 July. On 21 July 1984 an amnesty was proclaimed, and all 652 political
prisoners were released, alongside 25,000 ordinary criminal prisoners.95

85 Ibid., 146.
86 Ibid., 148.
87 Ibid., 183.
88 Ibid., 189.
89 Paczkowski, Revolution 104. See also detailed statistics as of 12 October 1982 in
Rakowski, Dzienniki polityczne 1981-1983, 371.
90 Paczkowski, Revolution, 109.
91 Ustawa z dnia 25 stycznia 1982 r. o szczególnej regulacji prawnej w okresie stanu
wojennego [Act of 25 January 1982 on the special legal regime during the period
of martial law], Dziennik Ustaw no 3, item 18
92 Ustawa z dnia 18 grudnia 1982 r. o zmianie ustawy o szczególnej regulacji
prawnej w okresie stanu wojennego [Act of 18 December 1982 modifying the act
on the special legal regime during the period of martial law], Dziennik Ustaw no
41, item 272.
93 Uchwała Rady Państwa z dnia 19 grudnia 1982 r. w sprawie zawieszenia stanu
wojennego [Resolution of the Council of State of 19 December 1982 regarding
the suspension of the martial law], Dziennik Ustaw no 42, item 275.
94 Uchwała Rady Państwa z dnia 20 lipca 1983 r. w sprawie zniesienia stanu
wojennego [Resolution of the Council of State of 20 July 1983 regarding the
abolition of Martial Law], Dziennik Ustaw no 39, item 178.
95 Mieczysław F Rakowski, Dzienniki polityczne 1984-1986 (Warszawa: Iskry, 2005),
106-108; Marceli Kosman, Wojciech Jaruzelski. Mąż stanu w czasach przełomu
[Wojciech Jaruzelski: Statesman in Times of Breakthrough] (Toruń: Wydaw-
nictwo Adam Marszałek, 2013), 86.
156 Rafał Mańko

The question of formal legality

Even in the immediate wake of its introduction, the formal legality of the
Martial Law was challenged.96 The most significant elements of the argument
are concerned with the competence of the Council of State to issue legislative
decrees if the session of the Sejm had not been closed, the retroactivity of the
decrees given their belated publication in the Journal of Laws and the exis-
tence of a substantive premiss of the threat to state security justifying the
introduction of the Martial Law.97
Taking into account the dualist character of the legal system, comprising
both the technical lex scripta and the political party law, the legality of the
introduction of martial law and its legal ramifications need to be analysed not
only in line with the written Constitution but also taking account of the
Party’s will, expressed by its bodies. Specifically, the last meeting of the
Politburo before Martial Law gave General Jaruzelski an implicit authorisa-
tion to proceed with its proclamation when and how he saw fit.98 Further-
more, General Jaruzelski, as first secretary, already enjoyed legitimacy within
the Party as the country’s leader. This, together with the Politburo’s pre-
liminary authorisation, makes the Martial Law legal in the light of the ius
politicum of the Party.
On the side of the written Constitution, as I have pointed out above, the
basic law vested state of exception powers in one sole body – the Council of
State. This body was the technical head of state, largely a decorative one, and
in practice its decisions followed that of the Politburo and the first secretary,
the political government and head of state, respectively. But looking only
from the perspective of the written Constitution of 1952, the Council of State
decision to introduce the Martial Law is perfectly legal – it was based on a
competence norm explicitly enshrined in the Constitution. Since no other
body’s consent was required, it was clear that it was up to the Council of
State to determine whether an exceptional situation existed, and if that was
the case – introduce martial law as the legal form of the state of exception in
the Polish People’s Republic.
The session of the Council of State during which the resolution and
decrees were adopted lasted from 1 am until 2.30 am on 13 December

96 One of the first academic publications challenging the legality of the Martial Law
was Janusz Kochanowski and Tadeusz de Virion, ‘Glosa do wyroku SN z 1
marca 1982 r., V KRN 50/82’ (1982) 9 Państwo i Prawo, 148.
97 See e.g. Bogumiła Lubera and Agnieszka Sikorska, ‘Retroaktywność dekretu o
stanie wojennym w świetle Konstytucji z 1952 i 1997 r.’ [Retroactivity of the
Martial Law Decree in the Light of the 1952 and 1997 Constitutions] (2010) 4
Przegląd Prawa Konstytucyjnego 125, 131–139; Mażewski, Problem legalności
39–65, 131–138.
98 Cf. ‘Protocol No. 18’ 443–444, where the general presents plans to introduce
Martial Law, presumably approved tacitly by the Politburo, as claimed by
.
Mazewski, Posttotalitarny autorytatyzm, 104.
 Poland’s 1981 martial law 157

1981.99 Hence, all five acts adopted that night were antedated, as they
mention 12 December, and not 13 December, as their date of adoption.
Furthermore, the operation of introducing the state of exception started at
11.30 pm on 12 December, i.e. even before the session of the Council of
State had begun.100 The Journal of Laws where they were promulgated was
dated 14 December, although it became available only on 17 December
1981.101 However, as the Supreme Court underlined in its judgment of 1
March 1982, the decrees and resolution were well known to citizens as they
had been made public in the mass media.102 The national television
informed about the content of the decree, and a communication by the
president of the Council of State concerning martial law was made public in
poster form.103 Indeed, taking into account the exceptionality of a state of
emergency, it would have rendered the Martial Law inoperative if it had
been necessary to wait for its legal effects until the decrees and resolution
were correctly published, perhaps even with a vacatio legis. Finally, since
Poland was a party to the International Covenant of Civic and Political
Rights, the ambassador of the Polish People’s Republic to the UN informed
the secretary general, initially by telephone, and later during an audience.104
Thus, formal legality was preserved, even on an international level.

Parliamentary scrutiny and judicial proceedings after 1990

Until the end of the Polish People’s Republic (1989) the question of the leg-
ality of the Martial Law was not questioned by the judiciary, although some
scholars already then presented critical views. It was only following Poland’s
transformation from state socialism to capitalism as a result of the Round
Table agreements of 1989 that the question of the Martial Law and its formal
legality became an object of heated political debate as well as ‘transitional
justice’ measures. A parliamentary scrutiny committee had worked between
1991 and 1996 on the question, publishing its report in 1996,105 where it
found that the act introducing martial law was legal without any doubt. As to
the legislative decrees accompanying it, Parliament noted that technically they
should not have been adopted by the Council of State during a session of
Parliament, nonetheless it took note of the exceptional situation and the fact
that attempts at having them regularly adopted in the Chamber met with
fierce opposition from Solidarity, which threatened the government with a

.
99 Rakowski, Dzienniki polityczne 1981-1982, 135; Mazewski, Problem legalności,
36.
100 Ibid., 35–36.
101 Ibid., 48–49.
102 Case V KRN 50/82, OSNKW 1982 no 6, item 39.
.
103 Mazewski, Problem legalności, 50.
104 Ibid., 54–55.
105 Ibid., 65–67.
158 Rafał Mańko

general strike. This led Parliament to consider this form of adoption as a

‘justified solution’.
The issue of the formal legality of the Martial Law was also addressed in a
number of Supreme Court106 and Constitutional Court judgments,107 as well
as a criminal case against General Jaruzelski and others, brought in 2007.108
Characteristically, they all focused on questions of formal legality, such as the
proper publication of the decrees, and their retroactivity, or – in the case of
the criminal case – on the alleged absence of a clear and present danger of a
Soviet intervention,109 but at the same time failed to address the main con-
stitutional premiss of the Martial Law, i.e. the duty to protect the constitu-
tional system of actually existing socialism against an internal revolution
staged by Solidarity.110 The main legal argument underpinning the act of
accusation against General Jaruzelski was that at the moment of adoption of
the martial law decrees the session of the Sejm had not been formally closed
and that the resolution introducing martial law (an act of applying the law)
was an excès de pouvoir because its aim was to limit citizens’ rights, which
allegedly was not possible under the Constitution.111 The silent premiss of the
latter head of accusation is based on the absence of any other good reason to
introduce the state of exception on the rather controversial assumption that
General Jaruzelski and the party-state leadership should have simply given
power over to Solidarity, rather than protect the constitutional system under
which they held offices. Due to the limits of space I cannot enter here into a
fully fledged critique of the act of accusation, but two issues should be

106 Judgment of 20 September 1991, Case II KRN 154/91, OSNKW 1992/1–2/3;

Resolution of 11 October 2002, Case SNO 29/02, LEX no 472133; Resolution
(Panel of Seven Judges) of 20 December 2007, Case I KZP 37/07, OSNKW 2007/
12/86.
107 Judgments: of 27 October 2010, Case K 10/08, OTK-A 2010/8/81; of 16 March
2011, Case K 35/08, OTK-A 2011/2/10.
108 Piotr Piątek, ‘Akt oskarżenia przeciwko: 1) Wojciechowi Jaruzelskiemu (…)’ [Act
of Accusation Against Wojciech Jaruzelski], Case S 101/04/Zk (Katowice, 16
April 2007), available at ipn.gov.pl/download/akt-oskarzenia-S-101–04-Zk2,
accessed 18 February 2020.
109 Piątek, ‘Akt oskarżenia’ 30, 32, 64 (noting that the manoeuvres of the Warsaw
Pact armies ‘took place in full coordination both with the Polish army command
and party leadership, as a means of exerting influence’, admitting that in
December 1980 an intervention could have taken place, but claiming that in
December 1981 there was no such ‘risk’ (64, 71), but ‘General Wojciech Jar-
uzelski tried to cause such an intervention or at least receive its promise’ (64).
110 The act of accusation against General Jaruzelski contains references to such
arguments (e.g. Piątek, ‘Akt oskarżenia’ 75, 81, 83), but does not treat them as a
justification of the Martial Law. Piątek even quotes General Jaruzelski’s speech at
the Politburo meeting on 6 February 1982 where he said: ‘The day of 13
December 1981 is an act of defence of socialism, of saving the socialist state (…)’
(Piątek, ‘Akt oskarżenia’ 83).
111 Piątek, ‘Akt oskarżenia’ 136, 139–141.
 Poland’s 1981 martial law 159

underlined: first, the competence to introduce martial law was expressly pro-
vided for by the Constitution (Article 33(2)) and, second, the limitation of
fundamental rights is, beyond doubt, the very essence of any state of excep-
tion even if Article 33 of the Constitution was silent on that issue.

A commissary dictatorship gone sovereign?

Did General Jaruzelski intend to save state socialism, reform it or replace it?
The evaluation of General Jaruzelski’s dictatorship – in the precise Schmittian
sense of Diktatur – depends to a large extent on how one classifies the political
system existing before its introduction on the night of 12/13 December 1981. In
my depiction of state-socialist ‘normalcy’ I avoided classifying it – at least on
the eve of the Martial Law – as a form of dictatorship. However, if one adopts,
along Marxist-Leninist lines, the classification of the Polish People’s Republic
as a dictatorship of the proletariat,112 or, along right-wing and conservative
lines, as a ‘communist dictatorship’, then the passage from normal situation to
state of exception becomes more problematic. It could then be seen as a pas-
sage from dictatorship of the proletariat to military dictatorship, perhaps akin
to war communism, or, if the opposite perspective is adopted, a passage from
the ‘communist dictatorship’ of the Party to military dictatorship, executed by
a junta in the form of the Military Council of National Salvation (WRON).
Given the revolutionary origins of the state-socialist form of government, with
the sovereign dictatorship at its roots, one could also argue that the constitution
of People’s Poland was, in fact, an ‘ossified sovereign dictatorship’, and General
Jaruzelski returned to its roots.113
However, what needs to be kept in mind is that in its precise Roman
meaning later developed by Schmitt, a dictatorship is, by definition, an
exceptional political arrangement, rather than a permanent state of a given
polity. With this assumption in mind, I wish to enquire whether, in Schmittian
terms, General Jaruzelski’s dictatorship can be characterised as a commissary
or sovereign one.
According to Schmitt’s dichotomy, a commissary dictatorship ‘suspends the
constitution in order to protect it – the very same one – in its concrete
form.’114 A commissary dictatorship, therefore, ‘protects a specific constitu-
tion against an attack that threatens to abolish this constitution.’115 Of
course, this entails suspending the constitution which, however, does not cease

112 A characterisation adopted e.g. by law and state theorist Adam Łopatka as late
as 1969 – see Adam Łopatka, Wstęp do prawoznawstwa [An Introduction to
Jurisprudence] (Warszawa: Państwowe Wydawnictwo Naukowe, 1969), 73–74.
113 I would like to thank Dr Przemysław Tacik for suggesting this idea to me.
114 Carl Schmitt, Dictatorship, Michael Hoelzl and Graham Ward transl. (Cam-
bridge: Polity, 2014), 118.
115 Ibid. [Emphasis added].
160 Rafał Mańko

‘to be valid, because the suspension only represents a concrete exception.’116

In contrast, sovereign dictatorship ‘does not suspend an existing constitution’
but rather ‘seeks to create conditions in which a constitution (…) is made
possible’.117 For this reason, a sovereign dictatorship ‘does not appeal to an
existing constitution, but to one that is still to come to power.’118 Sovereign
dictatorship appeals, therefore, to a constituent power (pouvoir constituant), i.
e. the ‘people, the nation (…) which expresses itself in continually new forms’
but ‘can never constitute itself in terms of constitutional law’,119scil. the
existing one. The question is therefore: did General Jaruzelski, by seizing
dictatorial powers on the night of 12/13 December, seek to act on behalf of a
new pouvoir constituant, intending to establish a new constitutional order for
Poland, or did he rather act on behalf of the pouvoir constituée, seeking to
protect the constitutional status quo? This question can be addressed in both
subjective and objective terms: either a question of the general’s intent (ana-
lysed through its external manifestations), or as a question of the place of the
Martial Law in the existing constitutional system and its actual effects upon
the constitutional setup, especially in the short and medium term (until the
mid-1980s).
A prime source for analysing the subjective intent of the general is his
televised address to the nation120 in which he explained the reasons for
introducing the Martial Law and shared his vision of going out of the crisis.
In his speech, the General pointed out the exceptionality of the situation in
both economic and political terms. He accused Solidarity of intending to
take over power, noting that the recent meetings in Radom and Gdańsk had
‘uncovered in their entirety the true intentions of its leadership circles’ and
its activists, who are openly ‘striving towards the total dismantling of
Poland’s socialist statehood.’121 More specifically, he referred to the mass
demonstrations planned by Solidarity for 17 December 1981 – on the anni-
versary of the December troubles – pointing out that ‘[t]hat tragedy may not
repeat itself. We cannot, we do not have the right to allow these announced
demonstrations to become a spark which can put the entire country on fire.’
Concerning the constitutional nature of the state of exception, the general
claimed that ‘[w]e are not heading towards a military coup d’état, towards a
military dictatorship’ and that the newly established Military Council of
National Salvation ‘does not replace the constitutional authorities’ because

116 Ibid.
117 Ibid. 119 [Emphasis added].
118 Ibid.
119 Carl Schmitt, Constitutional Theory, Jeffrey Seitzer transl. (Durham, London:
Duke University Press, 2008), 128.
120 Wojciech Jaruzelski, televised address to the nation, broadcast on 13 December
1981, full recording available at www.youtube.com/watch?v=4yUKFzYEFSg,
accessed 15 January 2020.
121 Ibid.
 Poland’s 1981 martial law 161

‘[i]ts only task is the protection of the legal order in the State, the creation of
executive guarantees that will enable to restore order and discipline.’122
Jaruzelski underscored the temporary nature of the dictatorship, promising
that the Military Council ‘shall be dissolved once rule of law prevails in the
country, once conditions appear for the normal functioning of the civil
administration and representative bodies.’123 What is worth underlining in
these passages is the absence of Marxist-Leninist ideological tropes and the
domination of a state-centrist, rule-of-law rhetoric, quite distant from a
revolutionary communist spirit. As a matter of fact, although the General
initially wanted to call the emergency body the ‘Military Revolutionary
Council for the Salvation of the Fatherland’ (Wojskowo-Rewolucyjna Rada
Ocalenia Ojczyzny)124 – a name consciously evoking the Revvoyensoviet125 –
he eventually dropped any allusions to the Revolution, preferring the some-
what nationalist rhetoric of ‘national salvation’. As historian Andrzej Pacz-
kowski comments, ‘the word “revolution” vanished almost at the last
minute, probably because it was reminiscent of the system’s roots and
ideology, which could have had limited the number of supporters of martial
law. It was deemed better to allude to patriotic sentiment and loyalty to the
state, embodied by the army (…).’126
Concerning the key element of state-socialist constitutionalism – the
hegemony of the Leninist party – the general was not so outspoken. In fact,
he mentioned the party only in the 13th minute of his televised address,
noting that ‘[d]espite the errors that have been committed and bitter failures,
within the process of historical transitions the Party retains an active and
creative role.’127 He even mentioned the party’s ‘leadership mission’, and did
not overlook the ‘Polish-Soviet alliance’ which ‘shall remain the cornerstone
of the raison d’état, the guarantee of the inviolability of our borders’,

122 Ibid.
123 Ibid.
124 The name was mentioned by General Florian Siwicki in his talks with the Soviets
on 11 December 1981 – see ‘Zeszyt roboczy gen. Wiktora Anoszkina’ [General
Victor Anoshkin’s Working Notebook] in Łukasz Kamiński (ed.), 2 Przed i po 13
grudnia: Państwa bloku wschodniego wobec kryzysu w prl 1980–1982 [Before and
After 13 December: States of the East Block Towards the Crisis in the Polish
People’s Republic 1980–1982] (Warszawa: Instytut Pamięci Narodowej, 2007)
403. See also Stanisław Kwiatkowski, W stanie wyższej konieczności. Wojsko w
sytuacji konfliktu społecznego w Polsce 1981–1983 (Toruń: Wydawnictwo Adam
Marszałek, 2011) 120 (who mentions that the adjective ‘revolutionary’ was to be
part of the name of the new body) and Rakowski, Dzienniki polityczne 1981-1982
127 (who notes that Jaruzelski mentioned the name ‘Military Revolutionary
Council’ on 7 December 1981).
125 Russian full name: ‘Революционный Boeнный Совет’, the supreme military
command body of Soviet Russia, existing between 1918 and 1934.
126 Paczkowski, Revolution, 51.
127 Ibid.
162 Rafał Mańko

promising that Poland would remain a ‘reliable member of the socialist

community of nations.’
During the last meeting of the Politburo prior to the introduction of mar-
tial law– a meeting which was obviously secret – General Jaruzelski clearly
indicated that he intends to protect the hegemony of the Leninist party.128 It
seems, therefore, that Jaruzelski aimed at presenting his dictatorship as a
commissary one, and his intention was also perceived in these terms in
Moscow. The Soviet Politburo noted that in Jaruzelski’s address ‘the emphasis
was properly placed on fundamental issues’, especially ‘the leading role’ of
the Party and the ‘fidelity of the [Polish People’s Republic] to its alliance
obligations’.129
On the other hand, in Jaruzelski’s own memoirs, written after 1989, he
did not emphasise the desire to protect state socialism, but rather pointed
to two other aspects. First, the threat of an intervention of Warsaw Pact
forces in defence of state socialism, and second, the will to pacify the
country and prepare it for transformation at a later point. The general,
obviously writing in hindsight, claimed that ‘the Martial Law cleared the
path towards dialogue, towards agreement’ and that it ‘froze the socio-
political setup’, ‘brought it forward to a different historical time and to a
different geopolitical dimension’, underlining that the Round Table agree-
ments of 1989 were ‘essentially a repetition of the idea of the Council of
National Agreement’ he had ‘put forward in the autumn of 1981.’130 He
presented the ‘care for Polish statehood – even defective, even limited’ as
‘one of the key elements which impacted upon [his] thinking and [his]
decisions in the dramatic months towards the end of 1981.’131
There are strong objective arguments in favour of claiming that the Mar-
.
tial Law was, in fact, a sovereign dictatorship. Lech Mazewski underscored
that Jaruzelski ‘did not intend to suspend the force of some socialist con-
stitutional arrangements with the aim of protecting them’, because his true
aim was to ‘preserve the monopoly of the political power of the security
apparatus’ and to introduce, at the same time, ‘changes leading to a more
effective functioning of the economy and make further steps towards the
construction of the foundations of the rule of law.’132 In his view, the Mar-
tial Law led to the ‘dethronement of the Politburo (…) as the “political”

128 ‘Protocol no 18’ 443. Cf. Rakowski, Dzienniki polityczne 1981-1983, 125-126.
129 ‘Protocol no 40 of the CPSU CC Politburo Meeting’ (13 December 1981), in
Paczkowski and Byrne (eds), From Solidarity, 473.
130 Wojciech Jaruzelski Stan wojenny, 412.
131 Jaruzelski, Stan wojenny, 276.
.
132 Lech Mazewski, ‘O sposobie prawniczej interpretacji stanu wojennego z 13
grudnia 1981 r. i jego następstw. Nie Carl Schmitt, a Jerzy Stembrowicz’ [On the
Method of Juristic Interpretation of the Martial Law of 13 December 1981 and
Its Consequences: Not Carl Schmitt but Jerzy Stembrowicz] (2013) 21 Przegląd
Sejmowy (4) 103, 108.
 Poland’s 1981 martial law 163

government.’133 Paweł Bała, in turn, claimed that Jaruzelski’s initial intent was
to protect the existing order (i.e. to introduce a commissary dictatorship), but
that nonetheless he abolished it and ended up being a sovereign dictator.134
.
Indeed, Bała’s claim resonates with Mazewski’s view that the Martial Law
effectively ended the leading role of the Party, reducing it to an ‘empty shell’.135
Following this line of reasoning, the Martial Law would be a sovereign dicta-
torship which replaced the original state-socialist constitution providing for the
hegemony of the Leninist party, with an interim constitution based on the power
of the formal governmental bodies and backed by the political police, which,
towards the end of the decade, opened the process of transformation towards
capitalism.136 This interpretation finds some corroboration from the construc-
tion of the rule of law, which I discuss in the next section.

The path towards transformation

The introduction of martial law coincided, paradoxically, with a series of
legal and economic reforms which could be introduced without much dis-
cussion with the now silenced opposition. Although the first building block
of the rule of law – the creation of judicial review of administrative action –
was already laid down in 1980, the construction of the Polish Rechtsstaat
speeded up following the Martial Law.137 On the one hand, the constitu-
tional lex scripta gained authority at the expense of the ius politicum: the
Council of Ministers, hitherto only a technical government overshadowed by
the Politburo and the Secretariat of the Central Committee, gained real
decision-making powers;138 also, Parliament, hitherto a rather decorative
body, was strengthened and its legislative authority expanded, making par-
liamentary debates more lively and publicly accessible.139 This was accom-
panied by an increasing juridification of life, as General Jaruzelski ‘decided
to stress the need for legalism in state-citizen relations in order to both
reduce the level of social dissatisfaction and depoliticize it.’140 The

.
133 Mazewski, Posttotalitarny, 105.
134 Paweł Bała ‘Stan wojenny 13 grudnia 1981 r. jako zagadnienie prawa ustrojo-
wego. Interpretacja decyzjonistyczna’ [The Martial Law of 13 December 1981 as
a Question of Constitutional Law: A Decisionist Interpretation], (2013) 21 Prze-
gląd Sejmowy, (4) 83, 99.
.
135 Mazewski, Posttotalitarny, 108.
136 In ideological terms, one can speak of a depletion of the Marxist-Leninist ideol-
ogy already progressing from the 1970s, when it came under pressure of con-
sumerism and technocratism, before being replaced with nationalist rhetoric in
the early 1980s. This paved the way towards the neoliberal and nationalist ideo-
logical hegemony after 1989.
.
137 Lech Mazewski, ‘O sposobie’, 108.
138 Poznański, Poland’s Protracted, 144.
139 Ibid. 144–145.
140 Ibid. 148.
164 Rafał Mańko

‘construction of the rule of law in the Polish People’s Republic became

clearly accelerated.’141 The 1982 constitutional amendment created a con-
stitutional court142 and a tribunal of state, the latter body tasked with jud-
ging ministers and other holders of high public office. The Constitutional
Court started to function in 1986, and although it had a relatively weak
mandate – its judgments could be rejected by Parliament – nonetheless it
was a second important element of the Rechtsstaat, following the Chief
Administrative Court, functioning since 1980. The two courts were joined in
1987 by a third liberal institution, the Commissioner for Citizens’ Rights
(ombudsman), with consumer lawyer Professor Ewa Łętowska being the
first incumbent. Legal reforms were also accompanied by radical economic
reforms, such as the adjustment of prices (by as much as 400%), a reduction
of real wages (by 25%) and the introduction of elements of a market econ-
omy (prices of many goods were no longer regulated).143

Conclusions
In 1980, the fundamental pillars of the Leninist model of Poland’s state-
socialist constitution came under direct challenge from the Solidarność
movement, which emerged in the midst of the country’s deepest economic
crisis since World War II. Solidarność increasingly openly challenged the
Leninist party’s leadership position and Poland’s strategic alliance with the
Soviet Union – to the dismay of Poland’s allies in the Warsaw Pact, who
created a commonly perceived impression of their readiness to intervene in
order do defend the authoritarian state-socialist system, just as they had done
in 1953, 1956 and 1968 in other countries of the bloc. The decision to intro-
duce martial law on 12/13 December 1981 was aimed, in particular, at
blocking the further activity of Solidarność, subjecting its chief activists to
administrative detention without trial, outlawing strikes and introducing a
temporary military control of the state apparatus and the economy. On an
ideological level, the Martial Law was yet a further step in the decomposition
of Marxist-Leninist ideological hegemony in Poland. While in the 1970s,
under the rule of Edward Gierek, a rhetoric of technocracy and consumerism
had been introduced,144 the Martial Law signalled a language of ‘national
salvation’ even in the most basic, biological sense. The presence of the mili-
tary in many positions of responsibility, starting from the first secretary and
prime minister, certainly contributed to the ideological shift.
.
141 Mazewski, Posttotalitarny, 115.
142 On the origins of the Court see e.g. Adam Sulikowski, ‘Government of Judges
and Neoliberal Ideology: the Polish Case’ in Rafał Mańko, Cosmin Cercel and
Adam Sulikowski (eds), Law and Critique in Central Europe: Questioning the
Past, Resisting the Present (Oxford: Counterpress, 2016).
143 Poznański, Poland’s Protracted, 85.
144 Cf. Sulikowski, ‘Government of Judges’, 35.
 Poland’s 1981 martial law 165

From its inception, the formal legality of the Martial Law has been subject
to debate. The main arguments of its opponents include the lack of a sub-
stantive legal basis for its introduction (lack of security threat), the alleged
retroactivity of the legislative decrees on the emergent legal regime and of the
introduction of martial law, and finally the fact that the decrees were adopted
without first closing the session of the Sejm (the Council of State was allowed
to issue decrees only between sessions). Against the backdrop of this critique,
I have argued that the act of introduction of martial law was beyond doubt
formally legal, keeping in mind that the decision that an exceptional situation
is at stake is, in its very essence, a political decision and is not susceptible to
juridical evaluation.145 Concerning the legislative decrees, issued despite the
formally ongoing session of Parliament, I noted that any prior debate on the
emergency legislation would have undermined the effectiveness of the state of
exception, voiding this constitutional institution of its purpose. In any event,
in January 1982 Parliament ratified the decrees in the form of an act of
parliament.146
Looking at General Jaruzelski’s dictatorship through the lens of Schmitt’s
dichotomy of sovereign vs. commissary dictatorship, one should keep in mind
that the state-socialist order, revolutionary in its origin, preserved, to a certain
extent, the essence of a sovereign dictatorship, even if ossified.147 The gen-
eral’s act of introducing the Martial Law, however, was presented at the time
as a commissary dictatorship, aimed at protecting the status quo threatened
by Solidarność. Nonetheless, objective factors indicate that already in 1982
the General commenced the construction of elements of the liberal rule of
law, as well as implemented far-reaching economic reforms which, on the one
hand, created an effective workers’ self-government in state enterprises but on
the other hand also broadened capitalist elements in the economy. However,
despite a temporary transfer of power to the military, as early as 1985 the
general withdrew from the position of prime minister, and retained the role of
first secretary. The party-state system of dualist governance, based on the
nomenklatura system, was once again in place. Despite the Party’s relatively
weakened position, the general refused to dissolve it, prolonging its existence
up to January 1990, even if as an ‘empty shell’.148 My radically realist
approach to state-socialist constitutionalism, taking into account not only
what was presented as ‘law’ (the lex scripta) but also what de facto operated
qua law (the ius politicum) has been instrumental to conceptualising the real
significance of General Jaruzelski’s act of introducing the Martial Law: on the
level of the lex scripta it was merely commissary, but if we take the

.
145 Mazewski, Problem legalności, 71.
146 Ibid., 57–63.
147 I would like to thank Przemysław Tacik for suggesting this idea to me.
.
148 Mazewski, Posttotalitarny, 108.
166 Rafał Mańko

constitution as a whole, in its substantive and not only formal sense, it had
clear elements of a sovereign dictatorship.
A final question that begs for an answer is the place and role of the working class
in the historical process. After all, in a state-socialist polity the working class
is, in a constitutional sense, the sovereign, even if organised and expressing its
will through the channels of the Party. The emergence of Solidarity as a
working-class movement with a generous social programme and more or less
concealed political ambitions challenged the Party’s role as the porte-parole of
the working class. The direct effects of the Martial Law were the outlawing
of strikes and protest actions, the suspension of Solidarity and the internment
of its chief activists, many of them workers. In that sense, the Polish state of
exception is no exception: it was directed against the working class. On the
other hand, however, reforms introduced under Martial Law created, for the
first time in Polish history, an effective workers’ self-government in state
enterprises (though many were exempt from it), making an unprecedented
move towards the Yugoslav model of socialisation of the economy, rather than
its etatisation.149 But in the long run workers were the losers as it was them
who were asked to pay the bill of transformation to capitalism in 1989.150 The
21 proposals of August 1980 or the 1981 programme of a ‘Self-Governing
Republic’ were deliberately forgotten.151 The Party elites joined the opposi-
tion elites, leaving the working class behind.152 The Martial Law was a success
in preserving the role of the nomenklatura and allowing it survive until more
favourable geopolitical circumstances, when they could engage in the infa-
mous ‘nomenklatura privatisation’.153 It destroyed Solidarity as a workers’
movement which would have most probably fiercely opposed the later neo-
liberal transformation.154 The working class, the de nomine sovereign in the
Polish People’s Republic, was the ultimate loser.155

149 Poznański, Poland’s Protracted, 154.

150 See e.g. David Ost, The Defeat of Solidarity (Ithaca, London: Cornell University
Press, 2005); Jane Hardy, Poland’s New Capitalism (London, New York: Pluto
Press, 2009).
151 Kowalik, From Solidarity, 33–49.
152 Sowa, Inna Rzeczpospolita, 168.
153 Hardy, Poland’s New Capitalism, 24–25; Kowalik, From Solidarity, 50–54; Sowa,
Inna Rzeczpospolita, 183–184.
154 Sowa, Inna Rzeczpospolita, 181–183.
155 For a poignant anthropological case study see Elizabeth C Dunn, Privatizing
Poland: Baby Food, Big Business and the Remaking of Labor (Ithaca, London:
Cornell University Press, 2004).
Chapter 8

A state in anomie
An analysis of modern Turkey’s states of
exception
Ceylan Begüm Yıldız

Introduction
[T]he norm functions precisely by way of managing the prospect of its undoing,
an undoing that inheres in its doings.1

It is late January 2016; a group of people are trapped in the basement of an

apartment building in Cizre, a town in Şırnak, Turkey.2 This event, which
would go on to monopolize Turkey’s politics until 1 February, was not the
result of unfortunate circumstances or a natural disaster, rather it was
caused by ongoing round-the-clock curfews and military operations which
had begun to dominate the life of Kurdish-populated cities in Turkey’s
south-eastern regions, where Cizre/Şırnak is located.3 The declaration of
curfews, followed by intensive military operations, had caused those injured
to seek shelter in a basement, where they waited, trapped, for an ambulance
that would never arrive. On 1 February, communication with those trapped
in the basement was lost for good.4 According to reports from local and
international human rights organisations, a similar accident happened in at

1 Judith Butler Frames of War: When is Life Grievable? (London: Verso,

2010), 12.
2 ‘Urgent Action: Injured, Stranded, in Need of Emergency Care’, Amnesty Inter-
national, 26 January 2016, available at www.amnesty.org/download/Documents/
EUR4433222016ENGLISH.pdf, accessed 13 February 2019.
3 For the latest figures on the curfews, see the Human Rights Foundation of
Turkey report: Curfews in Turkey between the Dates 16 August 2015–1 Jan-
uary 2019 (2019b), available at http://en.tihv.org.tr/curfews-in-turkey-
between-the-dates-16-august-2015-1-january-2019/, accessed 13 February
2019.
4 According to MPs from the People’s Democratic Party (Halkların Demokratik
Partisi – HDP), through whom communication was carried out, people trapped
in the basement were left under the debris after the building they were in was hit
by bombs. ‘Latest reports from wounded in Cizre: We’re under debris’, Bianet, 1
February 2016, available at http://bianet.org/english/human-rights/171692-lates
t-reports-from-wounded-in-cizre-we-re-under-debris, accessed 13 February 2019.
168 Ceylan Begüm Yıldız

least two more basements in Cizre around the same time,5 with at least 130
people losing their lives.6
The story of those who were trapped and died in that basement is just a
drop in the ocean of Turkey’s juridico-political history of deadly exceptional
measures. After the demise of the one-party regime in 1945, Turkey experi-
enced a series of military coups in 1960, 1971 and 1980. In 1982, after the
1980 coup, Turkey’s military regime drafted a new constitution, under the
authority of the ruling military group. The 1980 coup was followed by a dual
regime of state of emergency rule and counter-terror law that dominated
political, as well social and economic, life in the 1990s. Since the summer of
2015, the infamous tight control seen in the 1990s has been extended further
still to include round-the-clock curfews and a nationwide state of emergency.
During the final state of emergency in 2016–2018,7 Turkey went through a
parliamentary regime change after a constitutional referendum. The state-
form change – from a parliamentary system to a strong presidential one –
took place de facto through executive decrees (KHK –Kanun Hükmünde
Kararname) issued during the state of emergency, which were later formalised
via the constitutional referendum of April 2017.8 The new system was pre-
sented by the ruling Justice and Development Party (AKP) as a Turkish-style
presidency.9 While some scholars referred to it as hyper-presidentialism,
emphasising the ‘strong single executive power with very little or no

5 The Human Rights Foundation of Turkey’s Cizre field report located three shel-
ter basements, which had been destroyed by military forces. Although some of the
bodies were identified and buried hastily, either by the families or by local gov-
ernment authorities, the whereabouts of the other bodies is still unknown. The
field report mentions human remains scattered all over the city and witness testi-
monies mention some human remains thrown in the Tigris River. Human Rights
Foundation of Turkey, 76-Day Curfew: Cizre Field Report, 2016, available at
http://en.tihv.org.tr/79-day-curfew-cizre-field-report/, accessed 26 February 2019.
6 Amnesty International reports that the number of people who sought shelter in
various other basements in Cizre amounts to 130. Amnesty International,
Amnesty International Report 2016/17: The state of the world’s human rights
(2017), available at www.amnesty.org/download/Documents/POL1048002017E
NGLISH.PDF, accessed 26 February 2019.
7 A nationwide state of emergency was declared on 21 July 2016 after the failed coup
attempt by the followers of Fetullah Gülen. The AKP government used this
opportunity to eliminate all opposition with mass purges in governmental posts
including civil service and the military. For an overview of events, see (Amnesty
International 2017:. 367–371). For figures of two years of emergency measures, see
‘OHAL sona erdi: lki yıllık sürecin bilançosu’, BBC Türkçe, 19 July 2018, available
at www.bbc.com/turkce/haberler-turkiye-44799489, accessed 26 February 2019.
8 Sinan Erensü and Ayça Alemdaroǧlu, ‘Dialectics of reform and repression: Unpack-
ing Turkey’s authoritarian “turn”’, (2018) 52(1) Review of Middle East Studies 16.
9 For political context on this Turkish style of presidency, see Ersin Kalaycioǧlu,
‘The challenge of à la Turca presidentialism in Turkey’, Global Turkey in Europe,
2014, available at www.iai.it/sites/default/files/gte_c_18.pdf, accessed 23 July 2019.
 A state in anomie 169

constitutional constraints’,10 others presented the reform as a part of the

ongoing process of weakening political institutions.11
Despite these various readings, it is common to analyse the current state of
Turkey as a sudden ‘authoritarian turn’, which became apparent after the
2013 Gezi protests, accelerated after the 2016 failed coup attempt and, finally,
was legalised by the presidential regime change.12 While an authoritarian turn
is often related to a ‘democracy in crisis’,13 or even considered a betrayal of
democracy,14 some suggest the recent political and legal change in Turkey
‘signals a transition to a more “exceptional” paradigm of security’.15 How-
ever, neither authoritarian tendencies nor exceptional measures are new
trends in Turkey’s political and legal climate.
In this chapter I would like to consider the transformation of the excep-
tional measures from a historical perspective, with the aim of exposing the
evolutionary pattern of the states of exceptions in modern Turkey. In order to
do so, I will consider the round-the-clock curfews as a signpost. Even though
Turkey is living proof of exception being the norm, I suggest that the round-
the-clock curfews expose a pattern of anomie within the paradigm of excep-
tion; that is to say, that some exceptional measures are even more exceptional
than others are. Although Giorgio Agamben demonstrates in the book State
of Exception that exceptional measures are necessarily neither internal nor
external to law16 – in other words, situated in a zone of indistinction – Tur-
key’s states of exception show nuances due to its subject target. Hence, this
chapter follows Agamben’s lead in investigating Turkey as an anomic state,

10 Şule Özsoy Boyunsuz, ‘The AKP’s proposal for a “Turkish type of pre-
sidentialism” in comparative context’, (2016) 17(1) Turkish Studies.
11 Canan Aslan Akman and Pınar Akçalı, ‘Changing the system through instru-
mentalising weak political institutions: The quest for a presidential system in
Turkey in historical and comparative perspective’, (2017) 18(4) Turkish Studies
577.
12 In addition to those cited within the text, there are special issue journals focusing
on the matter of authoritarian turn in Turkey, see: Kerem Öktem and Karabekir
Akkoyunlu (eds.), ‘Exit from Democracy: Illiberal governance in Turkey and
beyond’, (2016) 16(4) Southeast European and Black Sea Studies 469. Cemal
Burak Tansel, ‘Decoding the Repertoires of Authoritarian Neoliberalism in
Turkey’, (2018) 23(2) South European Society and Politics 197. Kumru F. Tokta-
miş, and Isabel David, eds. ‘Critical Crossroads: Erdogan and the transformation
of Turkey’ (2018) 29(3) Mediterranean Quarterly 1.
13 Ziya Öniş, ‘Monopolising the Centre: The AKP and the uncertain path of Turk-
ish democracy’, (2015) 50(2) International Spectator.
14 Kumru F. Toktamiş and Isabel David, ‘Introduction: Democratization betrayed:
Erdogan’s New Turkey’ (2018) 29(3) Mediterranean Quarterly.
15 Özlem Kaygusuz, ‘Authoritarian neoliberalism and regime security in Turkey:
Moving to an ‘exceptional state’ under AKP’, (2018) 23(2) South European
Society and Politics 281.
16 Giorgio Agamben, State of Exception. Kevin Attell transl. (Chicago: University
of Chicago Press, 2005).
170 Ceylan Begüm Yıldız

while introducing a subject-oriented perspective to bring to light the parti-

cular pattern of states of exception on which the Turkish nation state was
built (and continues to live in).

Turkey: a state in anomie

Exceptional measures suspend the juridical order for its restoration or
defence. As Agamben stresses, those measures are

neither external or internal to juridical order, and the problem of defining

it concerns precisely a threshold, or a zone of indifference, where inside
and outside do not exclude each other but rather blur with each other.
The suspension of the norm does not mean its abolition, and the zone of
anomie that it establishes is not (or at least it claims to be) unrelated to
the juridical order.17

In other words, exceptional measures indicate a state of anomie, where legal

boundaries and definitions of inside and outside blur. With this definition in
mind, I propose to analyse Turkey as a state in anomie where the inside and
outside of the juridical order blurs.
‘A state in anomie’ bears a double meaning. In their discussion on the
nation state, Judith Butler and Gayatri C. Spivak remind the readers of the
double meaning of the word ‘state’.18 The first meaning is the juridico-poli-
tical construct, that ‘signifies the legal and institutional structures that delimit
a certain territory’, while the other refers to the ‘conditions in which we find
ourselves’.19 These two meanings collide, especially in exceptional times. As
the boundaries between the juridical and political order blur, so does the dis-
tinction between those two meanings of state as the state manifests its force
on subject-bodies. During states of exception, the state claims to restore or
defend its juridical order by leaving subjects in a certain “state”, such as being
trapped in a basement sheltering from military operations conducted by the
state of which you are a citizen. At this point, it is crucial to unearth the
relationship between the state in juridico-political terms and the subjects left
in a determinate state. In order to understand the relationship between the
Turkish state and the state of those subjects trapped in the basement to die, it
is necessary to recall the foundational state of the Republic of Turkey, or in
other words its foundational state of war.
After the establishment of the Turkish Republic in 1923, the first
exceptional measure issued was against a Kurdish rebellion known as the

17 Ibid., 23.
18 Judith Butler and Gayatri Chakravorty Spivak, Who Sings the Nation-State?
(London, New York and Calcutta: Seagull Books, 2010).
19 Ibid., 3.
 A state in anomie 171

Sheikh Said Rebellion of 1925. The government ordered mobilisation only

in certain areas where the revolt took place and established martial courts
(İstiklâl Mahkemeleri) in Turkey’s new capital, Ankara, and in the de facto
capital of the Kurdish region, Diyarbakır, where Kurdish community lea-
ders, including Sheikh Said, were hanged.20 Additionally, the government
adopted the Law for Maintenance of Order (Takrîr-i Sükûn Kânunu, no.
578),21 which ended the multi-party regime and replaced it with single-
party rule, embellished with extraordinary powers, which lasted until the
end of World War II.22 During this period yet another Kurdish uprising –
the Dersim rebellion of 1937 – was supressed by heavy military operations,
which again concluded with hanging the leader, Seyit Rıza, his sons and
five other followers.23
Although in the interwar period exceptional measures were quite common
among nations across the continents,24 it is worth noting that in Turkey’s case
what triggered the single-party regime was not an outside threat but rather an
inside one.25 However, prior to the establishment of the martial courts and the
Law for Maintenance of Order, two other legal measures were adopted, just a
couple of months after the official foundation of the Republic of Turkey in
1923. The first one is a law called Izale-i Şekavet (no. 356), translating as
‘elimination of bandits’,26 which declared that the killing of those labelled
bandits was not a crime.27 This was followed by another decree (no. 372),28
which gave amnesty to all possible criminal actions carried out while

20 ‘Bir Halki Yargılamak: Türkiye’de Ulus-Devlet ve Kürt Meselesi’, Toplum ve

Kuram (2012), 6–7, 13–27.
21 Law for Maintenance of Order (Takrîr-i Sükûn Kânunu), 4 March 1925, no. 578.
22 Erik J. Zürcher, Turkey a Modern History (London: I. B. Tauris, 2017).
23 Nicole Watts, ‘Relocating Dersim: Turkish State-Building and Kurdish Resis-
tance, 1931–1938’, (2000) 23 New Perspectives on Turkey 5.
24 After emphasising the role of World War I in generalising the exceptional mea-
sures, Agamben provides a brief history of the exceptional measures taken during
the world wars. Agamben, State of Exception, 11–22.
25 For a detailed analysis of exceptional measures of the interwar period, see:
Joakim Parslow, ‘Theories of Exceptional Executive Powers in Turkey, 1933–
.1945’, (2016) 55 New Perspectives on Turkey.
26 lzale-i Şekavet was adopted when the Rumi calander was still in use, hence .in the
official documents the year of the law is .1339. Elimination of Bandits (lzale-i
Şekavet). 18 October 1923, no. 356. The lzalei Şekavet law was terminated in
1962. In a report prepared by the Ministry of Justice it was noted that the law
was in breach of the Constitution and also that it was no longer needed since
there were provisions to punish bandits under criminal law, police conduct law
and gendarme conduct law. Draft Law to Abolish Law. on Elimination of Bandits
and Reports from Ministry of Interior and Justice . (lzalei Şekavet Kanununun
yürürlükten kaldırılmasına dair kanun tasarısı ve lçiŞleri ve Adalet komisyonları
raporları (1/191)), TBMM, 27 April 1962, No. 255.
27 Selin Esen, KarŞılaŞtırmalı Hukukta ve Türkiye’de Olaǧanüstü Hal Rejimi
(Ankara: Adalet Yayınları, 2008).
28 Degree no. 372, 19 November 1923.
172 Ceylan Begüm Yıldız

defending the country between the years 1918 and 1923.29 It appears that
this decree was enacted in response to the Ottoman war criminals tribunal,
which aimed to prosecute the military elites of the independence war – such
as Enver, Cemal and Talaat Pashas, who later became political leaders of
the Turkish Republic – for offenses against Greeks and Armenians.30 As
Taner Akçam’s detailed account of crimes committed within those years
discloses, ‘Christians were to be eliminated by expulsion or massacre. Non-
Turkish Muslims, such as the Kurds, Arabs, and Balkan migrants (refugees
from Christian persecution), were relocated and dispersed among the Turk-
ish majority to be assimilated into the dominant culture.’31 In other words,
the Izale-i Şekavet (no. 356) and the decree no. 372 pardoned any criminal
acts carried out in supressing Greek, Armenian and Kurdish minorities to
prevent their possible alliance with the occupying forces.32 These two legal
measures cannot be dismissed as exceptional measures taken during excep-
tional times of crisis; rather, they indicate the pattern of exceptional norms
in which modern Turkey’s juridico-political system operates. Even in this
brief history of exceptional measures taken during the foundation of the
Republic of Turkey, it is possible to spot the difference in terms of ‘who was
left in what state’, which serves as a pattern for upcoming states of emer-
gency.33 The answer lies in what type of state of exception was granted to
different subjects; in other words, who was killed and who was granted
amnesty for their killings.
In his inquest on the state of exception, Agamben unearths an interesting
relationship between mourning, feast and anomie.34 He considers mourning
in terms of public mourning, and specifically in the case of a sovereign’s

29 Esen, 146.
30 The offences subject to the war crimes tribunals were the expulsion of Greeks and
Armenian Genocide. The articles 2216–230 of the Treaty of Sévres, which is a
peace treaty signed between the Ottoman state and the Allied forces (the Eur-
opean opponents in the First World War) in 1920 but later on replaced by the
Lausanne Peace Treaty with the foundation of the Turkish Republic in 1923, were
concerned with prosecution of Ottoman war criminals. Taner Akçam, From
Empire to Republic: Turkish Nationalism and The Armenian Genocide (London:
Zeb Books, 2004), 180–207.
31 Taner Akçam, The Young Turks’ Crime Against Humanity: The Armenian Gen-
ocide and Ethnic Cleansing in the Ottoman Empire (Princeton: Princeton Uni-
versity Press, 2012), xv–xvi.
32 The Treaty of Sévres aimed to partition Anatolia to establish Armenian and
Kurdish nation states and included partitioning Thrace to Greeks (ibid.).
33 It is hard to spot such an obvious pattern in the late Ottoman period, which
suggests that the pattern has to do with the foundation of Turkey as a nation
state. For an analysis of exceptional measures taken during the Ottoman period,
see: Noémi Lévy-Aksu, ‘An Ottoman variation on the state of siege: The inven-
tion of the idare-i örfiyye during the first constitutıonal period’, (2016) 54 New
Perspectives on Turkey 1.
34 Agamben, State of Exception, 65–73.
 A state in anomie 173

funeral and its potential to create public chaos. He writes: ‘[t]he correspon-
dence between anomie and mourning becomes comprehensible only in the
light of the correspondence between the death of the sovereign and the state
of exception’.35 Agamben considers public mourning a ritualised form of the
state of exception that is declared to prevent chaos. The other point he makes
is related to the periodic feasts ‘that are characterised by unbridled license
and the suspension and overturning of normal legal and social hierarchies
[when] criminal behaviour is considered licit or, in any case, not punishable’.36
Although Agamben’s reading of mourning and feast are quite specific, I
believe his exposure of the relationship between mourning, feast and anomie
enables us to comprehend the workings of two parallel regimes of states of
exception embedded within the foundation of the Republic of Turkey.
At this point I would like to bring a contemporary account of mourning in
relation to a state of exception to the discussion. Just after the 2015 bombings
in Paris, which were followed by a two-year state of emergency,37 Judith
Butler wrote a short commentary unpacking this intrinsic relationship
between public mourning and exception.38 Referencing Gillian Rose, Butler
titles her commentary ‘Mourning Becomes the Law’. Although Butler does
not openly refer to Agamben’s work, she elaborates in a similar vein:

‘Hollande announced three days of mourning as he tightened security

controls […] Are we grieving or are we submitting to increasingly mili-
tarized state power and suspended democracy? How does the latter work
more easily when it is sold as the former?’39

35 Ibid., 68.
36 Ibid., 71.
37 A state of emergency was declared in France following the November 2015
attacks, which expired in November 2017. The state of emergency served as
grounds for legitimising the AKP government’s grip on power through the emer-
gency measures. Similar to the executive power grab of AKP through a refer-
endum, France ended its state of emergency by introducing a counter terrorism
bill, which was criticised for normalising the state of emergency. ‘France declares
end to state of emergency almost two years after Paris terror attacks’, Indepen-
dent, 31 October 2017, available at www.independent.co.uk/news/world/europe/fra
nce-state-of-emergency-end-terror-attacks-paris-isis-terrorism-alerts-warnin
g-risk-reduced-a8029311.html, accessed 26 February 2019.
38 Judith Butler, ‘Mourning becomes the law: Judith Butler from Paris’, Verso, 2015,
available at www.versobooks.com/blogs/2337-mourning-becomes-the-law-judith-
butler-from-paris. The text appears to be taken down from the website, however it
can be reached from: Judith Butler, ‘Mourning becomes the law: Judith Butler
from Paris’, Instituro 25 de Mayo para la Democracia, 2015, available at https://
instituto25m.info/mourning-becomes-the-law-judith-butler-from-paris/, accessed
28 February 2019.
39 Ibid., 2.
174 Ceylan Begüm Yıldız

What Butler suggests is that the state of public mourning had become an
excuse for the state of exception. This contemporary example can help us
relate Agamben’s analysis on mourning and exception to today, and to see
that their relationship is not only a casual one, but rather, they overlap
and blur into one another. In other words, the state of mourning is not
only a part of the apparatus of exception but at times it appears as a form
of a state of exception that paralyses and captures subjects in a constant
state of mourning.
These two parallel states of exception operated within the foundational
years of modern Turkey – one issuing a state of mourning (Takrîr-i Sükûn
Kânunu) and the other a state of feast (Izale-i Şekavet and decree no. 372).
They constitute a frame for what is inside and what is outside of the Turkish
nation state. Here I am referring to the Butlerian concept of ‘frame’ which is
defined as follows: ‘to call the frame into question is to show that the frame
never quite contained the scene it was meant to limn, that something was
already outside, which made the very sense of the inside possible, recogni-
sable’.40 Considering the framing of the Turkish nation state enables us to
approach its inside/outside features, free from the limitations of territorial
nation state borders. The last point is crucial to help us unpack Turkey’s
anomic state characterised by the territorial nation state borders of Turkey
(known as misak-i milli) containing both those left in the state of mourning
and those granted the state of feast (or amnesty). The exceptional measure
of issuing an amnesty for criminal acts only makes sense if there is an
exceptional criminal activity that would not be accepted in normal times on
recognised subjects. Hence, the double form of states of exception, mourn-
ing and feast, sets the frame of the Turkish nation state, which indicates a
group of subjects placed out of the frame regardless of their citizenship
status. However, there is a catch; it is this outside that makes the inside
possible and recognisable.
Regardless of its ethnic diversity, the Republic of Turkey is commonly
referred to as the Turkish state (Türk milleti) rather than the state of Turkey.
This choice of words is not random; it refers back to the nation state building
process in Turkey.41 Since its foundation, all other ethnicities, other than those
recognised non-Muslim minorities, have been forced to unite under one
national identity.42 In other words, the Turkish state is the ‘frame’ of the

40 Butler, Frames of War, 9.

41 Barış Ünlü in his work on the social contract of the Turkish nation state suggests
that the contract of being a Turk is built on being Muslim. In this way, only non-
Muslims are recognised as minorities while other Muslim ethic groups were
assimilated. under the identity of Turkishness. Barış Ünlü, Türklük Sözleşmesi:
OluŞumu, lşleyişi ve Krizi (Ankara: Dipnot Yayınları, 2018).
42 The Lausanne Peace Treaty was signed after the conclusion of the First World
War in July 1923 between Turkey and the allied forces. According to Section III
‘Protection of Minorities’, the Republic of Turkey recognised only non-Muslims
 A state in anomie 175

Republic of Turkey, not only as a separation from a territorial outside

(enemy) but more so, from the inside, through which other identities have
been placed out of the frame. As Butler reminds us the inside of the frame is
only recognisable by its outside. Thus, what is left out of the frame becomes
the condition for the existence of the Turkish state.
Furthermore, as Butler remarks, there is yet another meaning to the word
‘frame’; that is ‘to frame’ in the sense of falsely accusing someone of a crime
or wrongdoing. This blurring of the division of the outside and inside of the
Turkish state relates to the perpetual framing of Kurdish subjects as bandits,
or to put it in modern terms, as terrorists. In this regard, Butler’s deliberation
on the frame of recognition, that is, recognising the inside through its outside,
is to ask the question: when is a life ‘grievable’, or to be more precise, whose
life is ‘grievable’. She mentions ‘specific exploitation of targeted populations’
and that ‘[…] when such lives are lost they are not grievable, since, in the
twisted logic that rationalizes their death, the loss of such populations is
deemed necessary to protect the lives of “the living”’.43 Butler suggests that
the lives ended to secure other lives are the ones who are considered ‘ungrie-
vable’. However, the case of Turkey demonstrates that the issue of grievability
is more complex than that general statement. Not only is there always some-
one to grieve – in other words, to mourn after the lost ones – but in relation
to the frame of recognition there is the question of who is grieving and whe-
ther the shared (public) grief or mourning of a targeted population is recog-
nised by the rest. Different from the state of exception resulting from public
mourning, the frame of the Turkish state constitutes a line of separation: one
person’s mourning is the other person’s feast. Thus, Turkey is an anomic state
and at the same time, in a state of anomie.

The threshold of lawfulness/lawlessness

Turkey’s pattern of states of exception is reflected on the legal form of such
measures. Theoretically speaking, the characteristic of the state of exception
is the blend of executive, juridical and legislative powers – which are claimed
to be clearly separate from one another in a democratic state – producing a
zone of anomie. In Homo Sacer, Agamben highlights that life becoming a
target of a political decision allows an uninterrupted shift from democracy
to totalitarian (absolute state) and totalitarian regimes to democracies.44
This is one of the main collateral factors for exceptional measures

as minorities and granted only non-Muslims with minority rights. The rest of the
population is recognised as Turkish by the allied forces. ‘Lausanne Peace Treaty’,
24 July 1923, Republic of Turkey Ministry of Foreign Affairs, available at www.
mfa.gov.tr/lausanne-peace-treaty.en.mfa, accessed 28 February 2019.
43 Butler, Frames of War, 31.
44 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Daniel Heller-
Roazen transl. (Stanford: Stanford University Press, 1998) 72.
176 Ceylan Begüm Yıldız

transformed into a paradigm of governance. By declaring exceptional mea-

sures, nation states do not lose the legitimacy that comes with them being
‘democratic’, since the suspension of the juridical order for its restoration or
defence does not mean the abolition of the entire juridical system. Rather,
adopting exceptional measures results in a dual system in which both the
juridical order and its exception co-exist. Agreeing with this broad descrip-
tion of the state of exception, I would like to highlight a pattern evident in
Turkey’s states of exception; that is, a dual regime of exception. While one
covers completely the juridico-political territory of Turkey, the other is spe-
cific to the Kurdish-majority provinces of eastern and south-eastern Turkey,
an area even more legally arbitrary and militarily fortified than the former.
This pattern is related to the discussion of ‘who is left in what state’, and at
the same time unearths the threshold of lawfulness and lawlessness within
Turkey’s anomic state.
In the aftermath of Turkey’s founding years, in 1951 some amendments
were made to articles 141 and 142 of the Turkish Penal Code (no. 5844)45 in
response to the Cold War that added communism as a threat. Article 141
criminalised any acts to abolish a social class, establish the rule of one social
class above others or change economic and state structures, while article 142
criminalised the making of ‘propaganda’ in favour of those crimes listed in
the previous article, including writing about them. After the military coups
of 1960, 1971 and 1980, a separate emergency law was added to the new
constitution, commonly known as OHAL (Olaǧanüstü Hal Kanunu, no.
2935),46 in spite of already having an article on the state of siege in the
previous 1961 constitution.47 OHAL was implemented immediately, with a
similar scope to the round-the-clock curfews of 2015, mainly covering the
Kurdish majority in southern and south-eastern provinces of Turkey. While
the juridico-political territory of Turkey was governed by exceptional

45 Amendments to Article 141 and 142 of Turkish Penal Code, 3 December 1951,
No. 5844.
46 OHAL (Olağanüstü Hal Kanunu), 25 October 1983, No. 2935.
47 The state of exception (OHAL) was split from the state of siege by the 1982
Constitution. The Constitution, amended after the Constitutional Referendum of
April 2017, combined the two back again under the responsibilities of the
National Security Council, although the president alone can declare a state of
emergency. As article 119 says: ‘In the event of war, the emergence of a situation
necessitating war, mobilization, an uprising, strong rebellious actions against the
motherland and the Republic, widespread acts of violence of internal or external
origin threatening the indivisibility of the country and the nation, emergence of
widespread acts of violence aimed at the destruction of the Constitutional order
or of fundamental rights and freedoms, serious deterioration of public order
because of acts of violence, occurrence of natural disasters, outbreak of danger-
ous epidemic diseases or emergence of a serious economic crisis; the President of
the Republic may declare state of emergency in one region or nationwide for a
period not exceeding six months’. Amendments to the Constitution of the
Republic of Turkey, 16 April 2017, No. 6771.
 A state in anomie 177

measures, the Kurdish-majority provinces were governed under a double

regime of exception that was established by the combination of the anti-
communist articles of the Turkish Penal Code and OHAL emergency
measures. In 1991, while OHAL in the Kurdish provinces continued,
Turkey adopted its first version of the counter-terror law (no. 3713). This
was presented as a more comprehensive version of the anti-communist
articles of the Turkish Penal Code, which were due to be abolished after
the passing of the counter-terror law. The 1990s, which saw the intensified
regime of exceptional governance through the combination of OHAL and
the counter-terror law, are renowned as among the deadliest times in the
Kurdish regions. Unlike the state of emergency declared according to the
Constitution, the curfews and military operations were based on the Pro-
vincial Administration Law (İl İdaresi Kanunu, no. 5442),48 which origi-
nated a debate about its legality.49 The declaration of the round-the-clock
curfews accompanied by military operations were based on provisions
relating to governors’ and sub-governors’ responsibility to take the ‘neces-
sary measures to prevent crimes from being committed and to protect
public order and security’ and ‘to secure peace and security, personal
immunity, safety of private property, public well-being and the authority of
preventive law enforcement’.50 The European Commission for Democracy
through Law, known as the Venice Commission, issued a detailed report
on the legal framework of the curfews.51 The Commission concluded that
‘the curfews imposed since August 2015 have not been based on the con-
stitutional and legislative framework which specifically governs the use of
exceptional measures in Turkey, including curfew’.52
The case of Turkey shows, therefore, that there are different standards in
the exceptionality of exceptional measures. Grounding the curfews and
military operations within the Provincial Administration Law without
declaring a state of emergency exposes a double standard according to
which the Turkish state’s understanding of the rule of law differs depend-
ing on the targeted subject. Furthermore, the arbitrariness of the curfews
exposes, once more, the pattern of Turkey’s states of exception as being
nothing other than a never-ending civil war with its Kurdish citizens.

48 Provincial Administration Law (İl İdaresi Kanunu), 10 June 1949, no. 5442.
49 Erkan Şenses, ‘OHAL’siz OHAL Sokaǧa Çıkma Yasakları!’ (2016) 145 Güncel
Hukuk Dergisi.
50 Article 11(a) and (c) of Provincial Administration Law.
51 European Commission for Democracy through Law, Opinion on the Legal Fra-
mework Governing Curfews, 2016, available at www.venice.coe.int/webforms/
documents/?pdf=CDL-AD(2016)010-e, accessed 25 November 2019.
52 Ibid., 20.
178 Ceylan Begüm Yıldız

Uncovering stasis: round-the-clock curfews

Agamben adds a note at the very end of his elaboration on the concept of
civil war (stasis): ‘[t]he form that civil war has acquired today in world history
is terrorism’.53 And immediately after, he repeats an argument already
advanced in book Homo Sacer in relation to stasis. He writes:

[i]t is no coincidence that the ‘terror’ should coincide with the moment in
which life as such – the nation (which is to say, birth) – became the
principle of sovereignty. The sole form in which life as such can be poli-
ticised is its unconditioned exposure to death – that is, bare life’.54

By taking this note as a point of departure, I suggest that Turkey has been in
a never-ending state of civil war since its foundational war of independence in
1923, which served as a condition for the continuity of the Turkish nation
state and, hence, for its sovereignty.
As argued above, throughout its history the Turkish state has governed the
Kurdish region through exceptional measures while legitimising those mea-
sures through the rhetoric of the ‘war on terror’, nearly a decade prior to its
global use. Those exceptional measures against the Kurdish population were
legitimised with the historic accusation of terrorism, and they enabled the
threshold to be pushed further still and the anomie to be extended even fur-
ther. Today’s post-referendum question of ‘what went wrong’55 concerning
Turkey’s de jure dictatorship has its answers in this gradual expansion of
anomie through the ultra-exceptional measures issued on the Kurdish popu-
lation. During the most violent times of the curfews, this point was raised by
a large group of Turkey-affiliated academics, known by the name Academics
for Peace, who wrote in a statement that Turkey has been systematically kill-
ing its own Kurdish citizens.56 This is civil war and the current situation of de

53 Giorgio Agamben, Stasis: Civil War as a Political Paradigm, Nicholas Heron

transl. (Edinburgh: Edinburgh University Press, 2015), 18.
54 Agamben, Homo Sacer, 18.
55 At the ‘Law and Politics in Turkey: Reform, Authority and Emergency’ con-
ference that took place on 26–28 October 2017 at Northwestern University, the
question of ‘what went wrong?’ dominated the debate. To follow up the con-
ference debate, see: Saygun Gölarıksel and Z. Umut Türem, ‘The banality of
exception? Law and politics in “post-coup” Turkey’ (2019) 118(1) South Atlantic
Quarterly 175.
56 Academics who signed this petition statement have been facing mass purges and
state prosecution. For the full statement by the Academics for Peace, see: ‘We will
not be a party to this crime’, Academics for Peace, 10 January 2016, available at
https://barisicinakademisyenler.net/node/63, accessed 18 February 2019. For a
detailed report focusing on the aftermath of the peace petition see; Human
Rights Foundation of Turkey, Academics for Peace: A Brief History, 2019, avail-
able at www.tihvakademi.org/wp-content/uploads/2019/03/AcademicsforPea
ce-ABriefHistory.pdf, accessed 17 July 2019.
 A state in anomie 179

jure dictatorship is a simple outcome of a state of a civil war extended

nationwide.
To investigate further the state of Turkish civil war it is worth looking at
the first part of Agamben’s volume Stasis, which is a response to Nicole
Loraux’s series of articles on this theme. By studying the concept and the
practice of stasis in ancient Greece she concludes that civil war is ‘war within
the family’.57 Agamben, although relying heavily on Loraux’s detailed study,
objects to this idea and suggests placing stasis exactly in between family and
the city; indeed, ‘stasis does not have its place within the household but con-
stitutes a threshold of indifference between the oikos and the polis, between
blood kinship and citizenship’.58 Like Agamben’s other propositions on
anomie, stasis is a blurred space in which the apolitical life of kinship
becomes politically charged, and the politically charged citizenship is depoli-
ticised.59 Despite the problematic assumption of bare life that is presupposed
by Agamben in general, Turkey’s anomic state confirms in a way his theory of
stasis as a threshold between kinship and citizenship.
If the Turkish nation state was a family, in the eyes of the state Kurdish
citizens are considered the unreliable sibling who is likely to betray the
family, if they have not already done so. The troubled relationship between
kinship and citizenship was at its peak during the peace negotiations, which
were carried out between the Turkish state and the Kurdish Worker’s Party
(PKK – Partiya Karkerên Kurdistanê) between 2009 and 2015.60 During this
time ‘my Kurdish sibling’ became a common phrase, which was often used
by the then prime minister and now president R. T. Erdoǧan, and by the
rest of the Turkish state officials, to emphasise the period of reconciliation
after a decade-long blood feud.61 However, peaceful times did not last long
and the Turkish state officials who were carrying out the negotiations once
again accused their Kurdish siblings of backstabbing, to which the Turkish
state responded with round-the-clock curfews and military operations.62 As

57 Agamben, Stasis, 3–8.

58 Ibid., 11.
59 Ibid., 14.
60 Mesut Yeǧen, ‘The Kurdish peace process in Turkey: Genesis, evolution, and
prospects’, Global Turkey in Europe, 2015, available at www.iai.it/sites/default/
files/gte_wp_11.pdf, accessed 19 February 2019.
61 ‘Benim Kürt kardeŞlerim’ in Turkish. On 5 March 2019 at a rally Erdoǧan repeated
his gesture of calling Kurds his siblings while asking for the Kurdish votes for the
upcoming March 2019 local elections. ‘Erdoǧan Kürtlere seslendi: Bak size ‘karde-
Şlerim’ diyorum!’, Cumhuriyet, 5 March 2019, available at www.cumhuriyet.com.tr/
haber/siyaset/1278526/Erdogan_Kurtlere_seslendi__Bak_size__kardeslerim__
diyorum_.html, accessed 5 March 2019.
62 This chapter does not intend to debate the events, which are arguably the cause of
the failed peace process, nor the events prior to the curfew, but rather aims to
demonstrate the specific exceptional measures issued to the Kurdish region,
within the framing of the Turkish state.
180 Ceylan Begüm Yıldız

argued above, this has its roots in the foundational war of the Republic of Turkey
and its nation state framing process.63 The exceptional measures that followed,
and which had been implemented within the Kurdish regions since the founda-
tion of the republic, demonstrate the evolution of the founding war of the
Turkish state into a continuous state of civil war that has been kept as a possi-
bility within the anomic state of Turkey from the start. Thus, the Kurdish
population have always been perceived by the Turkish state as potential terror-
ists, and the Kurdish majority provinces have always been considered the head-
quarters of terrorism to keep stasis a waiting possibility. Indeed, as Agamben
claims, stasis ‘must remain always possible in the city, yet … nonetheless must
not be remembered through trials and resentments’.64
For stasis to remain a possibility in a state, the times of feast and mourning
should be left unpunished. This has been the case in Turkey since the first amnesty
of 1923. The Turkish state neither accepted responsibility for the systematic vio-
lence imposed on the Kurdish region nor punished those responsible for the extra-
judicial killings, which took place during the double regime of OHAL and the
counter-terror law of the 1990s.65 Relatives of those who were forcibly disappeared
during those times, known as the Saturday Mothers (Cumartesi Anneleri), have
been gathering in Istanbul at Galatasaray Square every Saturday since 27 March
1995. The Saturday Mothers not only demonstrate the transitiveness of kinship
and citizenship but also contribute to the argument raised above regarding Turkey’s
anomic state, leaving the Kurdish subjects in a constant state of public mourning.
Finally, the last aspect that is exposed by the round-the clock curfews is the
economy of Turkey’s anomic state, which is yet to be explored in the literature.
Agamben briefly mentions the economic aspect of stasis when he writes; ‘civil
war marks the threshold through which the unpolitical is politicised and the
political is “economised”’.66 The Turkish government issued ‘emergency expro-
priation’ orders in the areas under the curfew. According to Amnesty Interna-
tional’s report on displacements during the curfews, ‘in the city of Cizre, a total
of 22 plots of land were expropriated across three neighbourhoods’,67 and this

63 While Turkey’s founding war, commonly referred to as the independence war, is

glorified by Turkish nationalists as a victory against occupying colonial powers, it
is also remembered as a time of public mourning by its minorities.
64 Agamben, Stasis, 16.
65 During the peace negotiations, as a sign of reconciliation the state accepted the exis-
tence of hundreds of mass graves located across Turkey’s Kurdish region. According
to the Human Rights Association’s special report of 2014 on mass graves, 49 mass
graves were estimated in Diyarbakır alone, of which only eight have been opened.
These contained remains belonging to 77 individuals. Human Rights Association,
Türkiye’de Toplu Mezarlar Raporu (2014), available at www.ihddiyarbakir.org/Con
tent/uploads/28148ca9-d128-4b4c-afde-87cec90eef89.pdf, accessed 11 July 2017.
66 Agamben, Stasis, 17.
67 Amnesty International, Displaced and Dispossessed: Sur Resident’s Right to
Return Home, (2016), available at www.amnesty.org/download/Documents/
EUR4452132016ENGLISH.PDF, accessed 28 February 2019.
 A state in anomie 181

number goes up to 60% of land in the historical Sur district of Diyarbakır. The
report concludes that this was a systematic plan to displace its Kurdish
residents.68
At this point, I would like to recall Agamben’s critique of Michel Fou-
cault’s genealogy of biopolitics in which Foucault suggests that the sovereign
power’s interest in the economy of life began with liberalism.69 In Kingdom
and the Glory, Agamben argues that every primary target of the sovereign
power requires calculation, writing: ‘[e]very act of government aims at a pri-
mary target, yet, precisely for this reason, it can lead to “collateral damage”
which can be expected or unexpected in their specifics, but are in any case
taken for granted’.70 Surely, Agamben has a point here, that the Turkish
forces consider the people trapped and killed in the basement as no more
than collateral damage, and their deaths require no further investigation or
punishment. However, I believe the economy of emergency can be considered
in broader terms, either in the Foucauldian sense of homo economicus (bio-
politics in the sense of economy of life) or in terms of neoliberal war econo-
mies.71 Over the last decade, Turkey’s economic growth has been heavily
based on the construction sector.72 In this sense, curfews reveal the economic
aspect of the state of exception; that the destruction of cities and the deaths of
their inhabitants were coordinated in order to facilitate rebuilding – to gen-
erate growth not only through rebuilding infrastructure but also through the
rebuilding, or rather re-branding, of Kurdish cities that are to be consumed
by ‘the other’; such as for tourism.73 In other words, in neoliberal times of
crises, economic projections become the driving force behind the imple-
mentation of states of exception.

68 On the relationship between curfews and the government’s gentrification plans as

a form of cleansing at the Kurdish cities, see; Ceylan Begüm Yıldız, ‘Diyarbakır’s
objects of memory: “Restoration” of the Kurdish city into a biblokent’ (2016) 2
London Journal of Critical Thought.
69 Michel Foucault, The Birth of Biopolitics: Lectures at the Collége de France,
1978–79, Graham Burchell transl. (New York: Palgrave Macmillan, 2008).
70 Giorgio Agamben, The Kingdom and the Glory: For a Theological Genealogy of
Economy and Government, Lorenzo Chiesa and Matteo Mandarini transl. (Stan-
ford: Stanford University Press, 2011 [2007], 119.
71 It is not possible to further discuss this within this chapter due to space limita-
tions. However, to clarify, my emphasis is on the necessity to merge subject
oriented questions – such as who constitutes collateral damage; or in other words,
who is consumed, and who are the consumers – with neoliberal analysis while
considering the economy of exceptional measures.
72 On Turkey’s economic transformation from being a neoliberal success story to
civil war economy see: Yahya M. Madra and S Yılmaz, ‘Turkey’s decline into
(civil) war economy: From neoliberal populism to corporate nationalism’ (2019)
118(1) South Atlantic Quarterly 41.
73 Regarding the government’s plans to make Kurdish cities desirable for tourists
after the curfews, see: Yıldız, 2016.
182 Ceylan Begüm Yıldız

Conclusion
Although Agamben exposes the crucial placement of stasis within the modern
juridico-political systems, he provides little explanation as to how the active
state of stasis is calmed or concluded only to be evoked again in the future.
Surely, this is partly due to Agamben’s general argument of exception being
an everyday paradigm of government; hence, stasis never calms down. How-
ever, as the case of Turkey demonstrates, it changes form; and at this point it
is possible to direct a criticism at Agamben’s lack of differentiation between
different forms of states of exception.74 As the case of Turkey exhibits,
although exception is the norm, there are different forms of exception, which
leave targeted subjects in different, and at times opposing, states. Further-
more, target-oriented exceptional measures, such as granting one group an
amnesty while another is left in mourning, are the motor that keeps stasis as a
constant possibility within the state. Hence, in order to keep an active state of
stasis as a possibility, there must be passive form(s) of stasis when the active
state of civil war seems to be concluded. As a way of conclusion, I would like
to recall the state of those trapped in the basement.
On 26 January 2015, one of the trapped people in Cizre lost his life while
waiting for an ambulance to arrive, and while waiting for the European Court
of Human Rights’ (ECtHR) decision on the request for an interlocutory
injunction due to interim measures.75 He was the sixth person to die in that
basement. The next day three MPs began a hunger strike to raise awareness
of those trapped, calling for ambulances not to be stopped at military check-
points.76 This should have created a commotion in parliament, but the hunger
strikers were MPs from the People’s Democratic Party (Halkların Demokra-
tik Partisi – HDP), the Kurdish Party-led leftist coalition party which was
accused of conspiring against the Turkish government. They were quickly
labelled as terrorists by the government,77 and on the third day of their
hunger strike, the Turkish Constitutional Court denied their application for

74 Agamben’s theory of state of exception provides a very helpful lens, however as a

result of its broadness fails to guide any detailed analysis. As in the case of
Turkey, his lack of differentiation between state of emergency and counter terror
laws proved to be problematic.
75 ‘Selami Yılmaz dies while waiting for ambulance in Cizre’, Bianet, 26 January 2016,
available at http://bianet.org/english/human-rights/171502-selami-yilmaz-dead-while-
waiting-for-ambulance-in-cizre, accessed 28 February 2019.
76 ‘3 HDP MPs on hunger strike for ambulance to reach injured’, Bianet, 27 January
2016, available at http://bianet.org/english/human-rights/171554-3-hdp-mps-on-hun
ger-strike-for-ambulance-to-reach-injured, accessed 28 February 2019.
77 ‘MPs on hunger strike call government to pull their weight’, Bianet, 28 January
2016, available at http://bianet.org/english/human-rights/171585-mps-on-hunger-
strike-call-government-to-pull-their-weight, accessed 28 February 2019. ‘MPs on
hunger strike: Don’t hinder ambulances’, Bianet, 29 January 2016, available at
http://bianet.org/english/human-rights/171626-mps-on-hunger-strike-
don-t-hinder-ambulances, accessed 28 February 2019.
 A state in anomie 183

an injunction.78 While a group of 132 public figures issued a statement that

they were ready to save those trapped in the basement, it was already too late.
On 1 February, the hunger-striking MPs declared that they had lost commu-
nication with the people in the basement. They added that in their final con-
tact they had heard explosions and those in the basement said they were
trapped under debris.79 Both national and international human rights orga-
nisations reported that the basements were destroyed by heavy weaponry, if
not specifically targeted by the Turkish forces. The Human Rights Founda-
tion of Turkey’s Cizre field report says that basements were burnt and that
human remains were spotted in the neighbourhoods where basements were
located, with some said to have been thrown in the Tigris River. An active
stasis transformed into a passive one when one side wins; when one side feasts
on the other’s mourning; when the memory of stasis is erased through
destruction. Whether it is a gravestone or a land; when everything belonging
to the losing side becomes the property of the other.

78 ‘AYM Cizre’de Ambulans Talebini Reddetti’, Bianet, 29 January 2016, available

at http://bianet.org/bianet/insan-haklari/171640-aym-cizre-de-ambulans-talebini-r
eddetti accessed 28 February 2019.
79 ‘Latest reports from wounded in Cizre: We’re under debris’, Bianet, 1 February
2016, available at http://bianet.org/english/human-rights/171692-latest-reports-
from-wounded-in-cizre-we-re-under-debris, accessed 28 February 2019.
Chapter 9

Beyond ‘the most serious

suspension of rights’ of Genoa
Violence, anomie and force (of law)
Sara Raimondi

Introduction
The language of the exception has increasingly been used in academic litera-
ture to denote a wide range of phenomena proliferating globally in the last
decades, particularly in the wake of the global war on terror and the recent
migration ‘crises’. Prisons and refugee camps, extraordinary renditions,
counter-terrorist legislation and the increased focus on border controls are
just some of the examples that are often listed as instances of exception.
Much less attention, however, tends to be paid to the weight that similar cir-
cumstances play at the domestic level and in the putatively liberal-democratic
life of states. The chapter intervenes in this debate by offering a novel analysis
of the case of acute violence and police brutality that occurred in the context
of the 2001 Genoa G8 summit, which for gravity and scope has been descri-
bed as the ‘most serious suspension of democratic rights in a Western
Democracy after WWII’.1 The analysis departs from existent attempts to
investigate the case through the lens of studies of popular protests or brutal
police behaviour. It argues that the framework drawn from Carl Schmitt,
Walter Benjamin and Giorgio Agamben, which defines the exception as an
anomie produced by a specific triangulation of power, law and life, provides
an original and unexplored reading of the case. By applying the framework of
the exception to the case of Genoa, the aim of the enquiry is twofold. First, it
demonstrates that the taxonomy of the exception stretches beyond the
instances commonly found in the literature on the topic and to which the
term is often reduced. Second, it opens up the question as to the function of
exceptional measures within the context of contemporary democracies.
In this regard, the analysis highlights how, across multiple contexts, excep-
tion operates at the intersection and blurring point of the juridical and the
political, right and violence, inside and outside, legal and physical status of
those who are victims of exceptional practices, of citizenship and bare life. In

1 Amnesty International Annual Report, ‘Italy: G8 Genoa Policing Operation of

July 2001. A Summary of Concerns’, November 2001.
 Beyond ‘the most serious suspension of rights’ 185

so doing, the chapter aims at suggesting an enlargement of the current use of

the concept of the exception and intimates that the applications and instances
of the measure are in fact more complex, nuanced and blurred than the cur-
rent literature accommodates. The case of abuses and law suspension of
Genoa may offer an example of exception beyond its factual declaring, and
demonstrates that exceptional instances are used by states also in the context
of democratic life, and, potentially, against their own citizens whenever state
institutions feel threatened. In this light, the study here conducted raises the
question of the historical continuity and geographical circulation of models of
exception and suspension of rights and the function that these have in secur-
ing power in domestic state life.

Between law and politics: the framework of the exception

In modern juridical and political literature, the concept of the ‘state of
exception’ has been used to designate an extra-ordinary measure applied by
states in situations of perceived emergency or potential or actual crisis. The
flourishing of theories around the phenomenon is historically linked to the
inter-war period and the collapse of European democracies in the first half of
the 20th century.2 In that scenario, the figures of Carl Schmitt and Walter
Benjamin contributed to framing the debate, reaching different and mutually
responsive reflections. More recently, the concept has been revitalised by
Giorgio Agamben, whose contribution has been central in informing the
reception of the measure today. The works of the three authors can be used to
conceptualise the framework along which instances of exception can be
examined, by looking at the configuration that the exception produces
between political power, legal order and life. It is here suggested that the
constitutive criteria to recognise the measure can be identified with the fol-
lowing: a factual suspension of the existent legal or normative order, the
presence of a sovereign power that performs such an action and the limiting
and downgrading effect that the legal suspension produces on subjects’ lives.
Historically, the idea of the exception has been used to identify the confer-
ment of exceptional powers in periods of superior external or internal threat
to the life of states, resulting in the suspension of the rule of law and in the
expansion of executive powers.3 At the beginning of the 20th century, Carl
Schmitt brought the concept to attention by applying it to his contemporary
historical scenario. Taking issue with the positivist legal approach of authors
like Hans Kelsen,4 Schmitt articulates a decisionist position that puts the

2 Giorgio Agamben, State of Exception, Kevin Attell transl. (Chicago: University

of Chicago Press, 2005 [2003]), 6.
3 Jef Huysmans, ‘The Jargon of Exception: On Schmitt, Agamben and the Absence
of Political Society’, (2008) 2(2) International Political Sociology 165, 183.
4 Hans Kelsen, ‘The Pure Theory of Law: Its Methods and Its Fundamental Con-
cept’, (1934) 50 Law Quarterly Review 474, 498.
186 Sara Raimondi

focus on the mechanism of institution of the measure. Against claims arguing

for the self-sufficiency of the law, Schmitt ties the origin of the exception to
the figure of the sovereign, defined as ‘he who decides on the state of excep-
tion’.5 The reference to the sovereign becomes key to classifying the measure:
the decision upon the exception highlights the existence of an agent, or
agency, that is in fact superior to the norm and that can, at any time, trans-
cend it. Exception denotes ‘the decision in absolute purity’,6 which overcomes
any legal order and mediation. A formal legal power is then opposed to the
actual, empirical power that can at any time bypass the legal order, revealing
the constitutively political character of the action that precedes and trans-
cends the law. Hence, whereas the rule of law safeguards the regular perfor-
mance of domestic affairs, the exception effects a superior political decision,
which can suspend the law and act above the legal system. By connecting the
notion of the exception to sovereignty, Schmitt makes clear the controversial
nature of the exception, which stands as ‘ambiguous, uncertain, borderline
fringe, at the intersection of the legal and the political’.7 If the exception is
enforced as a juridical measure – a bracketing of the ordinary rule of law – it
only gains significance because of a political decision that turns the measure
into actual practice.
It should also be noted that the sovereign authority that produces an
exception does not need to coincide with the top of institutional state struc-
tures. William Rasch makes this clear when, commenting on Schmitt, he
highlights that the sovereign must be figured ‘as an autonomous entity, an
agent, or at least an agency, which has the authority to make decisions. That
agent may be a monarch, a dictator, a ruling body, or any of a variety of other
decision-making mechanism’.8 The crucial element for an exception can thus
be identified with the factual suspension of the law by the contingent author-
ity that can, in a specific situation, surpass the norm and impose a legal void.
Interestingly, the role of state institutions and the scope for action and
decision left to them with regard to the legal order is touched on by Walter
Benjamin in his Critique of Violence.9 As the author announces, the essay
investigates the relationship between violence and justice and thus, the space

5 Carl Schmitt, Political Theology, George Schwab transl. (Cambridge, MA: MIT
Press, 1985 [1933]), 5.
6 Carl Schmitt, Political Theology, 7; also in Georg Schwab, The Challenge of the
Exception: An Introduction to the Political Ideas of Carl Schmitt between 1921
and 1936 (Westport: Greenwood Press, 1989).
7 Alessandro Fontana, ‘Du Droit de Résistance au Devoir d’Insurrection’, in Jean-
Claude Zancarini (ed.) Le Droit de Résistance, XIIe-XXe Siècle, 15–33, (Paris:
ENS, 2001), 16.
8 William Rasch, ‘Conflict as a Vocation: Carl Schmitt and the Possibility of Poli-
tics’, (2000) 17(1) Theory, Culture and Society 8.
9 Walter Benjamin, ‘Critique of Violence’ in Marcus Bullock and Michael W. Jen-
nings (eds.), Walter Benjamin: Selected Writings. Vol. 1, 1913–1926 (Cambridge:
Harvard University Press, 1996 [1921]).
 Beyond ‘the most serious suspension of rights’ 187

for violence in relation to the law. In this regard, the author distinguishes
between forms of institutionalised violence that can either create the law (law-
making) or maintain it (law-preserving) and that are part of the functioning
of the modern state.10 In this classification, he defines the function of the
police in particular as a ‘spectral mixture’ that sits astride the two forms of
institutional (legal) violence and but is emancipated from both: in the author’s
words, ‘this (of the police) is violence for legal ends, but with the simultaneous
authority to decide these ends itself within wide limits (in the right to
decree)’.11 While operating within the mythical function of the law, the police,
as an authority of the modern state, also have the power to decide their own
ends, thus enabling a hybrid and, for Benjamin, ignominious, form of vio-
lence. To continue with the author: ‘the police intervenes “for security rea-
sons” in countless cases where no legal situation exists’,12 thus creating a
mismatch between their own ends and the ends of the general law. For Ben-
jamin, therefore, the figure of the police is chiefly well positioned to perform a
type of violence where no clear legal situation exists, by acting in a factual
legal void where decision-making institutions are able to define their own
ends. The result is a contingent action by the police that can act simulta-
neously within and beyond the law. I maintain that, although not openly
defined as such, the role of the police reproduces a configuration analogous to
an exception by filling a situation of legal anomie with an action that bears
no essential relation to the law. Therefore, it can potentially transgress and
transcend the ordinary legal order in its actual conduct.
In addition, the analysis of Benjamin’s work allows us to shift attention
beyond the moment of the suspension of the law onto the dynamics produced
within the legal vacuum: the factual bracketing of the law – produced by the
police’s deciding upon their own ends – questions the nature of the acts
committed under the anomie, which escape any legal classification. For Ben-
jamin, an authority like the police, or, in fact, following Rasch, any decision-
making agency of the modern state, can enact a form of violence whose aims
are not identical to and, potentially, even disconnected from, those of the
general law. By doing so, they create a potential source of exceptional

10 In fact, Benjamin introduces another category of violence, which he calls ‘pure’

or ‘divine’. In contrast to legal violence, pure violence is the only form of (revo-
lutionary) violence that has existence outside the legal order, by reaffirming the
subjective power to act in the name of justice and against the coercive power of
the law (Benjamin, Critique of Violence, 282). Although the alleged matter of
contention between Schmitt and Benjamin at the time chiefly concerned this
category of sovereign action, the focus of the chapter is on the question of the
space for violence within the institutionalised structures of the state in maintain-
ing – or bypassing – the legal order. I thus do not engage further with the yet
many central ideas discussed by Benjamin in the essay.
11 Benjamin, Critique of Violence, 286.
12 Ibid.
188 Sara Raimondi

violence that, going beyond that of law-making or law-preserving, has no

essential relationship with the law at all.
By creating a space for violence within the institutions of the state, more-
over, an action similar to the one performed by the police implies a shift of
level, from the normative dimension of the rule to that of the instantaneous
decision – that is, to the sphere of contingent and immediate fact. This
develops further and even potentially moves beyond Schmitt in classifying the
instituting of the measure and the relation to sovereignty. Jacques Rancière
voices this when, criticising the situation of a-political subjects in modernity,
he notes that the effect of the exceptional action beyond the law is ‘the erasure
of the boundary between law and fact, law and lawlessness’.13 Under legal
anomies, the decision no longer follows a norm, but is rather left to the
immediacy of the praxis. This inversion has a related impact on the definition
of sovereignty: sovereign power does not require a formal instituting; rather, it
is affirmed in the very moment of the decision over the suspension and
transcending of the law. The divide between the formal declaration and the
actualisation of power that derives from a factual exception is highlighted
clearly by Judith Butler, who notices:

it is not, literally speaking, that a sovereign power suspends the rule of

the law, but that the rule of the law, in the act of being suspended, pro-
duces sovereignty in its action and its effect. This inverse relation to law
produces the ‘unaccountability’ of this operation of sovereignty.14

Closing the circle of what has been presented above, the action of institutions
like the police can thus be defined as sovereign, since, by acting beyond the
law, they are produced in such a capacity. As Benjamin also specifies,15 this is
more true (and, in fact, for him, more devastating) in regimes like democ-
racies, where the modern conditions of rule of law and separation between
legislative and executive are active, than in cases like an absolute monarchy,
where the two powers are already united in the figure of the king. It is thus
democracies that can bear witness ‘to the greatest conceivable degeneration of
violence.’16
The unfettered power enabled by the situation of legal indefiniteness,
therefore, discloses the arbitrariness with which sovereign power can be exer-
cised: the exception effects the possibility of a sovereign action, which is not
accountable to the regulations, or constraints of the general law. Any ruling
or executive act can be performed without justification of the reasons that

13 Jacques Rancière, ‘Who is the Subject of the Rights of Man?’, (2004) 103(2/3)
The South Atlantic Quarterly 306.
14 Judith Butler, Precarious Life: The Powers of Mourning and Violence (London:
Verso, 2004), 66 [emphasis added].
15 Benjamin, Critique of Violence, 286.
16 Ibid.
 Beyond ‘the most serious suspension of rights’ 189

make the action possible, and that bear nothing essential in their ends and
aims, if not renewing their position of sovereignty. Agamben describes this
dynamic when he notices that

In order to apply a norm it is ultimately necessary to suspend its appli-

cation, to produce an exception. In every case, the state of exception
marks a threshold at which logic and praxis blur with each other and
pure violence without logos claims to realize an enunciation without any
real reference.17

The justification of rational logos is separated from the task of governing so

that any action is disconnected from any declared end. The undefined, and
even paradoxical, character of the exception lies therefore in this controversy:
a power different from the rule establishes itself by altering the rule and
actualising its suspension. While still dependent on the legal order, it replaces
the function of the legal apparatus and imposes itself as the new sovereign
voice. By overcoming the law, thus, the political decision upon an exception
obtains an immediate access to the target that is protected through the legal
order, that is, subjects’ life. Life that can be subject to a sovereign decision
emerges thus as a further logical element implied by the enactment of an
exception. It is in particular with the formulation given by Giorgio Agamben
that the dimension of ‘life’ is incorporated into the conceptual edifice of the
state of exception.
The notion of life is introduced by the author when defining the measure.
In his view:

the state of exception is the device that must ultimately articulate and
hold together the two aspects of the juridical-political machine by insti-
tuting a threshold of undecidability between anomie and nomos, between
life and law […]. It is founded on the essential fiction according to which
anomie in the form of auctoritas, living law or force of law, is still related
to the juridical order, and the power to suspend the norm has an
immediate hold on life.18

Besides the legal dimension, the exception enables a direct reach to the lives
of the subjects involved. In particular, the challenge of the exception consists
in opening an area of ‘undecidability’, where a pure decision disconnected
from the regular legal ends (and the violence ensuing from it) may occur. The
divide between law and sovereign decision, between norm and fact in the

17 Giorgio Agamben, State of Exception, Kevin Attell transl. (Chicago: University

of Chicago Press, 2005 [2003]), 40.
18 Ibid., 86 [emphasis added].
190 Sara Raimondi

exception, is paralleled by a correspondent blurring of the threshold between

‘human’ and ‘non-human’, between ‘meaningful’ and ‘bare’ life.19
The roots of this division may be found already in the work of Hannah
Arendt, who stresses such distinction when analysing the condition of refu-
gees in The Origins of Totalitarianism.20 Here, Arendt insists on the con-
troversial relationship of both the link and the opposition between nature and
politics, between bare and qualified life, that establishes different degrees of
existence. Significantly, the same concepts also appear in Rancière’s work
expanding on the same topic: a bare conception of life is opposed to the fully
human condition, a form of being appraised by the inscription in a political
structure that grants rights to life: only then does life gain meaning and
become entitled to preservation and protection.21 This core distinction,
therefore, provides the demarcation between a life that ‘deserves’ to be safe-
guarded and a simple being without purpose, on which, consequently, every-
thing is permitted.
The possibility of an existence denied of importance provides the logical
counterpart of the unfettered decision that was pointed out with regard to the
establishment of the exception: if the authority that acts as sovereign holds
the power to act beyond the law that protects subjects, then the legal suspen-
sion downplays simultaneously the life valued by those rights. Consequently,
any form of behaviour, even that which is violent and degrading, becomes
possible in the exception, since the sovereign does not obey any rule. The
behaviour of the authority is thus a pure decision over a naked and unquali-
fied existence: under the exception, subjects are neither full citizens nor
human and are potentially exposed to any form of conduct, even that which
is annihilating and humiliating.
It appears thus evident why Agamben reintroduced the notion primarily to
describe the condition of men in camps under totalitarianism: the sovereign
decision undermines the consideration of subjects’ existence as properly
human. The implications of this are clearly presented by Rancière:

what is correlated with the exceptionality of sovereign power is the

exception of life. It is life as bare and naked life, which means life cap-
tured in a zone of indiscernibility, of indistinction between zoe and bios,
between natural and human.22

The dynamic active in the moment of the exception is then a declassification,

a return to a bare acceptation of being. Hence, to actualise an exception, the

19 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Daniel Heller-
Roazen transl. (Stanford: Stanford University Press, 1998 [1995]).
20 Hannah Arendt, Origins of Totalitarianism (New York: Harvest Books & Har-
court, 1985 [1951]).
21 Jacques Rancière, ‘Who is the Subject of the Rights of Man?’.
22 Ibid., 306.
 Beyond ‘the most serious suspension of rights’ 191

authority must consider subjects’ lives as having no meaning, since poten-

tially this deprives them of any recognition and safeguard. By denying
their existence the protection of the law, any action on them becomes
conceivable (and applicable). Quoting Thanos Zartaloudis, what char-
acterises the exception is a ‘zone of indistinction between bare life and
qualified life, it is the understanding of this relation […] that binds and at
the same time abandons the living being to a law without a content’.23
The element of the arbitrariness of the decision then returns: through the
exception, the sovereign obtains a direct access on life, and decides over it
by transcending the legal mediator that prevents abuses. The idea of a
devalued and naked life is thus introduced to the conceptual matrix of the
notion, and suggests that only when qualified as political – that is, entitled
to protection – can life be considered as fully human.
The main elements pointed out in the analysis so far – a contingent
authority that transcends the law, the factual enacting of an exception
beyond any formal declaration and the downgrading of subjects’ lives –
can be deployed as a framework to read instances of the exception. The
analysis just conducted defined the exception as a complex measure that
shares both a legal and a political nature. If it implies an action in the
juridical sphere – by a factual suspension of the rule of law – the decision
upon the exception is in fact a political act by which the sovereign regains
direct access to life. Ultimately, the exception realises a condition of law-
lessness, wherein any contingent authority can exercise a sovereign power
and devalue subjects’ lives.

Anomies in practice: the ‘exceptional’ reading of the case of Genoa

In the following section, I want to demonstrate that the conceptual heur-
istic just outlined can provide an alternative framework to read through
and identify circumstances of exception, particularly in opposition to the
vast literature that uses the concept in critical IR studies, and in the con-
text of the politics of security in particular, where the notion has been
widely adopted.24 With this aim, I set out to apply the framework of the
exception just analysed to a case that would seem to escape the common
taxonomy of the concept.
The series of protests and demonstrations that accompanied the Interna-
tional G8 Summit held in Genoa in July 2001 was an emblematic case

23 Thanos Zartaloudis, Giorgio Agamben: Power, Law and the Uses of Criticism
(Abingdon, UK; New York: Routledge, 2010), 160.
24 See for instance Mitchell Dean, Governmentality: Power and Rule in Modern
Society (London: Sage, 1999); Vivienne Jabri, Discourses on Violence (Manche-
ster; New York: Manchester University Press, 1996); Andrew Neal, ‘Foucault in
Guantanamo: Towards an Archeology of Exception’, (2006) 37(1) Security Dia-
logue 31, 46; Jef Huysmans, ‘The Jargon of Exception’ 183.
192 Sara Raimondi

brought to the attention of public opinion, media and scholars. The diverse
literature on the topic tends to point out the extraordinary intensity of the
violence deployed in the policing operations surrounding the event. The per-
vasiveness of repressive tactics by police and security forces resulted from a
pre-emptive regime of control which, according to Naomi Klein, was
enforced around the city even a month before the summit took place.25
Nevertheless, the peculiarity of the circumstances witnessed in Genoa was a
use of force beyond the limited situations of protests, which was manifested in
moments exceeding regular policing tasks on the streets.26
The spread layer of abusive facts perpetrated by law enforcement autho-
rities emerges clearly in a study conducted by Michael Boyle27: his analysis of
the experience of groups of activists during the protests shows how Genoa
was characterised by a set of incidents of patrolling all the areas of the event,
culminating in degrading treatment and curtailment of rights against the
subjects involved. I maintain that the events witnessed in Genoa were not
only a case of accidental brutality in enforcing policing duties. Rather, the
exceptionality of facts turned into systematic conduct that can be classified as
an instance of exception according to the criteria highlighted above: there, a
police body acting as sovereign created a legal anomie where the law was de
facto suspended and subjects’ rights were downgraded to the point of dehu-
manisation. These dynamics ascribe a particular interest to the events occur-
red and distinguish them from a simple case of deployment of brutal force by
the police. Before approaching the analysis, it is useful to briefly describe the
episodes in more detail.
Among the widespread examples of ill-treatment and excessive measures
deployed across the whole set of events in Genoa, two specific cases stand out
as relevant for the analysis. On the night of the 21 July 2001, the second day
of the protests, a squad of police national forces attacked the Diaz-Pertini

25 Naomi Klein, ‘Getting Used to Violence: How Years of Police Brutality Culmi-
nated in the Death of the Italian Protester Carlo Giuliani’ in Klein, Fences and
Windows: The Front Lines of the Globalization Debate (New York: Flamingo,
2002), 149.
26 Notably, the protests culminated with the killing of one of the demonstrators (see
Klein, ‘Getting Used to Violence: How Years of Police Brutality Culminated in
the Death of the Italian Protester Carlo Giuliani’, or Rory Carroll, ‘Italian Police
Framed G8 Protesters’, The Guardian, 22 June 2002. For the International reg-
ulation around the use of force by enforcement officers in situations of protest, see
the UN legislation around protest policing; in particular, the UN Code of Con-
duct for Law Enforcement Officials (Art. 3) and the UN Basic Principles on the
Use of Force and Firearms by Law Enforcements Officials (Pt. 4–10, 14; also in
Amnesty International Annual Report, ‘Italy: G8 Genoa Policing Operation of
July 2001. A Summary of Concerns’).
27 Michael Boyle, ‘The Criminalization of Dissent: Protest Violence, Activist Per-
formance, and the Curious Case of the VolxTheaterKarawane in Genoa’, (2011)
55(4) The Drama Review 113, 127.
 Beyond ‘the most serious suspension of rights’ 193

High School building in one of the town districts. It had been transformed
into a temporary centre for the Genoa Social Forum28 and the broadcast
organisation Indymedia, both collecting national and non-national demon-
strators, journalists and lawyers involved in the event. The raid by the police,
initially explained as a check against the carrying of weapons and damaging
acts allegedly carried out by the group of 93 activists, turned later into a
prolonged assault, with systematic beatings, ill-treatment and injuring of the
provisional detainees. The subjects’ status within the detention has been
described in the statements of the victims, which denounced the ‘special kind
of discipline’ that the police performed by incarcerating victims in ‘a deten-
tion centre that became a place of dark terror’.29 Beatings were accompanied
by further abuses, mutilations, physical violations and the enforced simulation
of animal behaviours.
A similar situation was later replicated at the police point of the nearby
Bolzaneto facility, which had been reassigned as a detention structure for
protesters before they were moved to formal imprisonment. Here, the same
regime of cruel and inhuman tactics was deployed against the over two
hundred detainees, with repeated beatings, verbal abuse, needs deprivation
and humiliating physical and psychological mistreatment by both law
enforcement officers and medical staff during the days of confinement.
Again in reports: ‘Prisoners described their feeling of being cut off from the
rest of the world, in a place where there were no laws and no rules. Indeed,
the police forced their captives to sign statements waiving all their legal
rights.’30 The downgrading of political and human rights was therefore a
remarkable feature pertaining to the whole experience and imposed by the
officers involved in the event.31
The incommensurability of violence deployed has been significantly cap-
tured by the words of one of the policemen involved, who later defined the
beating at the Diaz as a ‘Mexican butcher’s shop’,32 signalling the inhuman
and degrading character of the abuse. What is relevant for the argument,
however, is primarily the judgment that came from the international commu-
nity, which intervened to define the event as ‘the most serious suspension of
democratic rights in a Western country after the Second World War’, stressing

28 A counter-globalisation organisation made up of political movements and parties

and civil society.
29 Nick Davies, ‘The Bloody Battle of Genoa’, The Guardian, 17 July 2008.
30 Ibid. [emphasis added].
31 The description of the facts is here derived from secondary sources; for a more
detailed description of the events and testimonies released in the aftermath, see
the reports Nick Davies, ‘The Bloody Battle of Genoa’ and Amnesty Interna-
tional Annual Report, ‘Italy: G8 Genoa Policing Operation of July 2001. A
Summary of Concerns’; the latter was eventually also used in the legal trials.
32 Declaration by the police commissioner Michelangelo Fourier during the trial,
2007.
194 Sara Raimondi

the disproportion and uniqueness of the facts witnessed in Genoa.33 Even-

tually, judicial and parliamentary inquiries sanctioned Bolzaneto as a case of
torture, referring to the systematic curtailment and downplay of rights per-
petrated in the facility.34
I argue that the events of Genoa can be productively captured by the con-
ceptual elements outlined in the framework of the exception suggested
above – that is, a transcending of the legal order, a contingent authority
exercising sovereign power and the effects of this action on subjects’ lives. The
situation of anomie and suspension of rights is a common feature cited in the
literature on the issue: as has been described, the reclusion of provisional
detainees turned into a ‘lawless limbo’, and unrestricted action could be
applied to the subjects involved.35 The source of the legal openness pertaining
to the detainment of Genoa derived, first, from the role played by the police
responsible for deciding on the events: through ‘their special kind of dis-
cipline’,36 the police enforced a new order transcending the regular applica-
tion of the rule in the contingent moment of the confinement and abuses. The
police acted as the sovereign voice and actualised a suspension of the ordin-
ary rule of law and of the ensuing rights. The establishment of an exception
can here be recognised: the police could contingently exercise the sovereign
power of suspending the law and behaving as an agent superior to it; a con-
dition of exception was thus enforced, and the police even created a physical
space where the legal anomie could take place.
Moreover, as argued above, the subversion of the regular legal order did
not require a formal instituting; rather, it was enacted at the level of concrete
facts established in the particular and contingent moment. In this, the point
that was derived from Rasch becomes fully clear: an exception can be enacted
by any agency that has decision-making force. By exercising this sort of
decisional power, enforcement officers in Genoa were able to suspend any
legal order and condemn victims to a status where, in detainees’ own testi-
mony, ‘there were no law and no rule’.37 As has been powerfully described by
Benjamin, despite maintaining their structure and organisation, the police

33 Amnesty International Annual Report, ‘Italy: G8 Genoa Policing Operation of

July 2001. A Summary of Concerns’.
34 To present briefly the legal events that followed: though hundreds of policemen
were declared involved, a restricted number were finally convicted, and none
served the full application of the sentence. For a full consideration of juridical
procedures in the aftermath of Genoa and the ensuing charges, see the series of
‘Parliamentary Commission Acts’ produced during the trials until the final sen-
tences on 12 July 2012 (Diaz) and 14 June 2013 (Bolzaneto). (Parliament of Italy,
‘Commissioni Parlamentari di Inchiesta’, 2001–2013).
35 Paul Kennedy, ‘One Deadly Summit (The Italian Collective Documentary Project
about G8 in Genoa and the Concomitant Protest Movement)’, (2001) 11 Sight
and Sound 28.
36 Davies, ‘The Bloody Battle of Genoa’.
37 Ibid.
 Beyond ‘the most serious suspension of rights’ 195

were able to create a space for an action independent from and unconnected
to the regular functioning of the law. The police thus became the vehicle
through which the exception was realised, acting as a sovereign power with
the ultimate decision-making authority in the situation.
The dual role of the police and the fine line between policing duties and
arbitrariness of behaviour may not only be contingent to the case, but rather
a feature substantially embedded in the figure of the police. As seen in Ben-
jamin, in the function of enforcing public order, police authority is con-
stitutively placed on the threshold between the legitimacy of the action and
the discretionary application of legal measures. Agamben further restates this
point when, in an essay titled ‘Sovereign Police’, he notes that ‘contrary to
public opinion’, in performing their task the police are

not merely an administrative function of law enforcement; rather, the

police are perhaps the place where the proximity and almost constitutive
exchange between violence and right that characterizes the figure of the
sovereign is shown more nakedly and clearly than anywhere else. […] If
sovereign, in fact, is the one who marks the point of indistinction between
violence and right by proclaiming the state of exception and suspending
the validity of the law, the police are always operating within a similar
state of exception. Their rationale […] defines an area of indistinction
between violence and right that is exactly symmetrical to that of
sovereignty.38

The indefinite detentions of Diaz and Bolzaneto may thus be considered

as points in which the sovereign role constitutively belonging to the police
was expressed and realised in its highest manifestation, activating an
exceptional vacuum where sovereign action could constantly turn into
violence. The sovereign role of the police in these cases could be described
as the kind of violence defined by Benjamin, implied by and simulta-
neously transcending the duty of enforcing the law and setting ends out-
side those of the general legislation. For this reason, the action of the
police in Genoa cannot simply be reduced to the (more straightforward
and declared) need to maintain public order; rather, it can be considered
as an even higher degeneration of violence, since it maintains no essential
link to the regular ends of the law. A further point for classifying Genoa
as exception derives therefore from its disclosing a pure exercise of sover-
eign power, by which the threshold between right and abuse may con-
stantly blur without any justification.

38 Giorgio Agamben, Means without Ends: Notes on Politics, Vincenzo Binetti and
Cesare Cesarino transl. (Minneapolis: University of Minnesota Press, 2000
[1996]), 103.
196 Sara Raimondi

In addition, if sovereign action addresses primarily the domain of the law,

the further dimension that is involved in the exception is the parallel effect on
targets’ lives. The same challenge to individuals’ lives may now be applied to
the context considered, where power is embodied by the sovereign figure of
the police and the subjects are the provisional detainees deprived of their
rights. In particular, the tipping point here is not only the threat to the poli-
tical rights of the individuals involved, but the curtailment of even physical
rights at all levels. The notably degrading ill-treatment perpetrated against the
subjects signals the (dis)qualification of the lives involved: by the ‘lawless’
action taken, existence is affirmed as unqualified, naked life – that is, a life
lacking any value. Thus, the exceptionality of the circumstance lies not only
in performing an action that lies beyond any legal end but also in the form of
existence that is produced: subjects are no longer political entities or bearers
of rights, but reduced to merely physical, bare existence. Resorting to Agam-
ben’s most famous definition,39 subjects are reduced to homines sacri.
Central for understanding this point is the annihilating and degrading
treatment perpetrated, in which the subjects were forced to act like animals.
The characteristics highlighted in the first section are therefore realised in the
case and complete the meaning of the ‘indefinite’ detentions pointed out by
Boyle40: the indefiniteness of the case pertains both to the legal openness
created by the factual suspension of the law and, connectedly, to the suspen-
sion of the humanity of the subjects involved. The triangulation between
power, law and life is reactivated and meaningfully confirmed in the cases
analysed: in the comment of Giuseppe D’Avanzo: ‘Diaz and Bolzaneto
appear as places “outside the law”, wherein rules as well as humanity are
suspended and in which only the civic sense of the police would be ultimately
held accountable’.41 A condition of exception is thus created here in the
relation between a normless power of the sovereign police and the naked life
of provisional targets left at the mercy of the contingent authority acting in
the circumstance.
Hence, with the disclosure of the concept of inhumanity in the form of bare
existence, the second side of the relation between power and life pertaining to
the exception also re-emerges: in its extreme manifestation, the figure of
naked, unqualified life brings back to the image of the man in the ‘camp’, in
relation to which the modern idea of the exception was forged. The analogy is
confirmed when Monica Jansen notices that the case of Bolzaneto in parti-
cular has been often linked to the humiliating conditions within the Nazi
camps, as political aggression aimed at affecting life and bodies – in this case,

39 Agamben, Homo Sacer, 47–52.

40 Boyle, ‘The Criminalization of Dissent. Protest Violence, Activist Performance,
and the Curious Case of the VolxTheaterKarawane in Genoa’.
41 Giuseppe D`Avanzo, ‘Prefazione’, in Massimo Calandri, Bolzaneto: La Mattanza
della Democrazia (Roma: DeriveApprodi, 2008), 10 [author’s translation;
emphasis added].
 Beyond ‘the most serious suspension of rights’ 197

those of the protesters involved.42 The presence of an unqualified life deprived

of any form suggests a connection with the array of examples in which the
paradigm of the exception has been moulded and formulated, both in their
more immediate understanding (concentration camps) and in their modern
articulations (detention places, provisional confinements or places of ‘indefi-
nite’ justice where no clear law applies): in all situations, a devaluation of life
is replicated, and a sovereign act – here coinciding with the police – may turn
the status of political subjects into unqualified, non-political and, thus, inhu-
man existence. All these reasons prevent us from considering Genoa as just an
example of police brutality and suggest instead that we define it as a peculiar
condition of exception.
Existent analyses of the case might include the example in the overall series
of violent events occurred around the summit. Following Donatella della
Porta and Lorenzo Zamponi,43 it is certainly true that the spread of violence
of the protests resulted from the reciprocal interactions between demonstra-
tors and authorities, which were determinant in structuring the confrontation.
Nevertheless, my interest lies in the deliberate perpetration of exceptional
measures rather than the degeneration of actions during the actual moments
of the demonstrations. In my argument, the specificity of the experiences of
Diaz and Bolzaneto consists in the ‘indefinite detainment’ created there44 as
lawless situations in which even abuse and torture became possible. Departing
from the mainstream literature that links the facts to the comprehensive con-
text of protests, the episodes described should be considered in their auton-
omy, and identified as circumstances where an exception has been
materialised: scholars, protesters and even enforcement officers involved sug-
gested that the police in Genoa created ‘zones of indistinction’, drawing from
Agamben’s famous definition.45 This clarification is useful in order to distin-
guish the reading suggested here from other approaches found in the litera-
ture: mainstream analyses associate the case of Genoa with the anti-
globalisation movement and with the trends peculiar to the phenomenon.46

42 Monica Jansen, ‘Narrare le Forze dell’Ordine dopo Genova 2001’, (2010) 65(3)
Italian Studies 418.
43 Donatella della Porta and Lorenzo Zamponi, ‘Protest and Policing on October
15th, Global Day of Action: The Italian Case’, (2013) 23(1) Policing and Society:
An International Journal of Research and Policy 65, 80.
44 Boyle, ‘The Criminalization of Dissent: Protest Violence, Activist Performance,
and the Curious Case of the VolxTheaterKarawane in Genoa’, 114.
45 Agamben, State of Exception, 4.
46 See for instance Donatella della Porta and Herbert Reiter, La Protesta e il Con-
trollo: Movimenti e Forze dell’Ordinenell’Era della Globalizzazione (Milano:
Altraeconomia/Piacenza: Berti, 2004); Luis Fernandez, Policing Dissent: Social
Control and the Anti-Globalization Movement (New Brunswick, NJ: Rutgers
University Press, 2008); John Noakes and Patrick Gillham, ‘Aspects of the “New
Penology” in the Police Response to Major Political Protests in the United States,
1999–2000’, in Donatella della Porta, Abby Peterson and Herbert Reiter (eds),
198 Sara Raimondi

Alternatively, some research focuses on structural features of protests and

demonstrations, referring to the composition of groups involved,47 tactics and
strategies deployed,48 or surrounding discourses of criminalisation of dis-
sent.49 Finally, other works explain the dynamics that occurred as a legacy of
the fascist culture embedded in the Italian police, re-emerging in response to
the events of 2001.50 All these readings may contribute to defining the wider
framework, but they do not cover the specific object of study that has been
highlighted here, which may add a new perspective to the application of states
of exception.
The example can also be distinguished from other cases of exception. The
remarkable denouncing of the case by Amnesty International (AI) as ‘the
most serious suspension of rights’ in the Western world for over half a century
indicates the depth, magnitude and distinctiveness of the facts and their extra-
ordinary character. In AI’s statement, two fundamental aspects in particular
can be highlighted. First, the statement underlines the link between the case
and the current life of a democracy, with the only antecedent going back to
the period of the Second World War. The link to the circumstance of con-
flict – and the War in particular – suggests a comparison with the unique
political events of that time: the instauration of totalitarian regimes and the
experience of the concentration camps. As we have seen, the literature has
already made the connection in the case analysed here, pointing out the ana-
logy with the political conduct of totalitarianism and the practices of the
Nazi regime.51
AI’s sentence also highlights that the fact pertains to the realm of a Western
liberal-democracy. The challenge for theoretical investigation is thus that of
justifying similar occurrences in the context of liberal-democratic countries,
where the endowment and achievement of basic rights is taken for granted.
An instance that proves the contrary questions the relation between formal
recognition of democratic principles and their concrete implementation. In
this sense, the argument may go further than existent studies on the subject
and enlarge the array of modern exceptions: if the measure has already been

Policing Transnational Protest: In the Aftermath of the ‘Battle of Seattle’ (Alder-

shot: Ashgate, 2006).
47 Peter Hajnal, ‘Civil Society at the 2001 Genoa G8 Summit’, (2001) 58(1) Inter-
national Journal 13, 15; Jeffrey, Juris, ‘Violence Performed and Imagined: Mili-
tant Action, the Black Bloc and the Mass Media in Genoa’, (2005) 25(4) Critique
of Anthropology 413, 32.
48 Donatella della Porta and Lorenzo Zamponi, ‘Protest and Policing on October
15th, Global Day of Action: The Italian Case’.
49 Boyle, ‘The Criminalization of Dissent. Protest Violence, Activist Performance,
and the Curious Case of the VolxTheaterKarawane in Genoa’.
50 John Allen, ‘Fascism’s Face in Genoa’, The Nation, 20 August, 2001; Melody
Niwot, ‘Narrating Genoa: Documentaries of the Italian G8 Protests of 2001 and
the Persistence and Politics of Memory’, (2011) 23(2) History & Memory 66, 89.
51 Jansen, ‘Narrare le forze dell’ordine dopo Genova 2001’.
 Beyond ‘the most serious suspension of rights’ 199

applied in contemporary contexts (in the highest exemplification of Guanta-

namo Bay dealt with by Agamben52) and with regard to other ‘lawless’ sub-
jects, such as refugees, migrants, provisional detainees,53 the aim is now to
extend discussion to its embedding and presence within domestic state life.

Beyond Genoa: enlarging the taxonomy of the camp

At first, Genoa may appear a contingent case of rights curtailment produced
by an accidental degeneration in police behaviour during the circumstance of
the protests. The analysis of the inner dynamics, however, allowed for a
reading of the case as an example of a state of exception, enforced by the
police acting as sovereign and producing the consequent dehumanising treat-
ment against the subjects involved. By replicating these mechanisms, the case
can be compared to the wider set of occurrences gathered under the concept
of the exception, which can now be further explicated.
The identification of instances of exception has been often linked analyti-
cally to the image of the ‘camp’ to denote a locus that undergoes an autono-
mous logic of governing: the camp designates a space of juridical void, where
no difference between rule and fact holds.54 The connection with the excep-
tion is thus close: by physically realising the suspension of the norm, the
camp formalises the decision upon an exception and creates the material
conditions for locating the anomie. The rule of law is totally subverted within
the dimension of the camp, and the actual power is transferred to the hands
of the contingent authority that acts as sovereign.
It is important to notice that, if historical experiences of camps during the
totalitarian regimes contributed to the formulation of the image, the theore-
tical figure of the camp must be taken as an independent analytical concept
that denotes the peculiar structure effecting an exception. Treating the notion
of the camp as explanatory category rather than as ‘mere’ historical occur-
rence helps enlarge its application and allows us to export the model beyond
its literal meaning: the camp defines all instances where a legal suspension
and curtailment of rights is replicated. As a consequence, subjects that ‘inha-
bit’ these various forms of camp are equally part of the same classification
since, missing a defined juridical status, they are liable to a fully arbitrary
rule: refugees, provisional detainees, illegal immigrants become the subjects of
modern exceptions, given their condition of juridical indefiniteness.55 By
taking the camp as physical locus of the exception, it is then possible to fulfil
the connection and enlarge the array to also include the case studied: if the

52 Agamben, State of Exception, 4.

53 Vivienne Jabri, ‘War, Security and the Liberal State’, (2006) 37(1) Security Dia-
logue 47; Rancière, ‘Who is the Subject of the Rights of Man?’.
54 Agamben, Homo Sacer: Sovereign Power and Bare Life.
55 Giorgio Agamben, State of Exception; Jabri. ‘War, Security and the Liberal
State’; Rancière, ‘Who is the Subject of the Rights of Man?’.
200 Sara Raimondi

camp represents the space where law and fact blur and sovereignty accesses
bare life, then the case of torture and abuses of Genoa provides an example of
the same form of ‘camp’: legal norms are totally abandoned and the situation
is left in the hands of authorities that exercise an unfettered power over sub-
jects’ lives. As expressively explicated by Agamben:

If this is true, if the essence of the camp consists in the materialization of

the state of exception and in the creation of a space in which bare life and
juridical rule enter into a threshold of indistinction, then we find our-
selves virtually in the presence of a camp every time such a structure is
created, independent of the kinds of crime that are committed there and
whatever its denomination and specific topography. […], an apparently
innocuous space delimits a context in which the normal order is sus-
pended and in which whether atrocities are committed depends not on
the law but on the civility and ethical sense of the authority that tem-
porarily acts as sovereign.56

The already known areas where German authorities gathered ‘illegal’ subjects
under the Nazi regime, the prisons for suspects where police deploy counter-
terrorist measures, the structures for immigrants along the borders of Western
countries and, we can now add, the temporary facilities where officers keep
demonstrators before an official trial can all be considered camps: they all
provide the material condition to locate an exception and degrade individuals
to the level of an unqualified existence. Reading the exception as a juridical-
political category realised empirically by the camp helps us connect the case
of Genoa to the comprehensive range of modern exceptions and reconsider
the pervasiveness of the measure in the political life of current modern states:
all cases open a space of juridical anomie wherein any sorts of behaviour,
even violent and inhuman, become possible.
Moreover, with the extension just reached, the case that was presented may
even go further than previous examples: if, so far, the concept has been
ascribed to subjects with uncertain legal status – refugees, immigrants or
individuals placed at the margins of the juridical order – Genoa shows that it
is possible to direct such mechanisms towards the same citizens that the state
is responsible for protecting. The measure of the exception, then, gives con-
sistency to a single comprehensive process: if restricted to well-defined situa-
tions in the past, the exception gradually turns into a targeted measure and,
finally, appears possible in episodes addressed potentially to any subject. In all
cases, a degrading, abusive and dehumanising action is performed, indepen-
dently of the specific circumstances and context of application. The argument
thus achieves a double result: on the one hand it suggests that Genoa is not
an accidental occurrence but partakes to a precise analytical category; on the

56 Agamben, Homo Sacer, 174.

 Beyond ‘the most serious suspension of rights’ 201

other, it tests that practices of exception are more pervasive than their stan-
dard definition and are present within current democracies.
A final clarification may be added: in discussing the exception in today’s
domestic contexts, many authors, and Agamben himself, critically extend the
measure to an encompassing reading of the modern political condition. They
draw from Foucault’s biopolitical approach57 and take life as the core objec-
tive of politics. In these readings, the aim of state power is to achieve a tota-
lising control over its citizens by also disciplining the natural, (apparently)
non-political existence. The practice of the exception is thus seen as over-
whelming, up to the point of interpreting the camp as the ‘fundamental bio-
political paradigm of the West’.58 Moreover, today’s use of Foucauldian
governmentality59 tends to connect the topic to the ‘exceptional’ measures
adopted in discourses of security in the West after 9/11: provisions such as
monitoring communications, borders checks and all the operations enforced
as internal defence are included in the same range of exceptional practices.
The analysis of the case of Genoa using the framework of the state of
exception can be seen as opening up an additional dimension that cuts across
the trends and mainstream approaches identified in the literature. On the one
hand it distances itself from the language of security studies that tend to
mainly apply the analysis of the exception to the societal trends supported by
the discourse of the ‘war on terror’ and the structuring of the social field with
exceptional practices. On the other hand it also moves beyond the more easily
recognisable cases of dehumanisation and ill-treatment. If cases like Guanta-
namo Bay or Abu Ghraib have become emblematic of the application of the
‘no man’s land’ that the exception produces, and of the ‘inclusive exclusion’60
through which bare life is incorporated in the very order and legitimation of
modern politics, Genoa demonstrates that cases of exception are even more
pervasive and hidden in the context of democratic life and can also be
enforced by states against their own citizens. More than as a paradigmatic
example, therefore, the analysis of the case provided here wishes to open up
an additional avenue of enquiry to the approaches usually emphasised in the
literature in relation to the exception. Even more, the case examined here
invites treating the concept of the exception as more blurred and ‘messier’
than many categorisations in the literature would have it. The analysis per-
formed highlights how, across multiple contexts, exceptions require the co-
presence of only apparently opposite terms of analysis: the juridical and the
political; right and violence; the legal status and the physicality of those who

57 Michel Foucault, Discipline and Punish (London: Penguin, 1977); Michel Fou-
cault, Society Must be Defended: Lectures at the Collège de France, 1975–76
(London: Penguin, 2004).
58 Agamben, Homo Sacer, 181.
59 Jabri, ‘War, Security and the Liberal State’; Neal, ‘Foucault in Guantanamo:
Towards an Archeology of Exception’.
60 Agamben, Homo Sacer, 22.
202 Sara Raimondi

are victims of exceptional practices; citizens and bare life. Beyond the cases
usually analysed, then, the exception can become a privileged point of obser-
vation for a reflective diagnosis of the life of modern states. More than inter-
rogating the changing nature of politics in the age of globalisation that the
literature on exceptionalism often tends to highlight,61 the analysis conducted
here opens up new questions around the function of exceptional measures
within the context of contemporary democracies, their historical continuity
and geographical circulation, and asks what exception reveals about the
complex relationship between the legal, political and social dimension (also)
of domestic state life.

61 Huysmans, ‘The Jargon of Exception, 165-83.

Afterword: Emergencies,
exceptions, legalities
David Fraser

Pessimism of the intellect, optimism of the will.

– Antonio Gramsci

I write this afterword in the middle of the Covid-19 pandemic. We live day
to day in compulsory social isolation. We are citizens and subjects of the
state of emergency and of states of exception. While some have argued
that the pandemic is exaggerated and being deployed for nefarious pur-
poses, the death tolls are not fictional.1 The legal and political possibilities
of the virus, its potential to serve as a fundamental disruption to the
constituted order remain real, but are perhaps overwrought in relation to
other ‘normal’ states of legal exception.2 The chapters of this book are
now more than theoretical, jurisprudential, historical, socio-legal inter-
rogations of the state of exception; they are part of the explanation of our
quotidian reality and an examination of our existential and jurisprudential
state of being.3 The law and politics of the state of exception are no
longer the outliers of our existence.
Of course, as the contributors make clear, governments do not need a
pandemic to institute emergencies or states of exception. Before Covid-19,
Myanmar committed genocide against the Rohingya, whose very juridical
existence they deny.4 China placed tens of thousands of Uighers in re-educa-
tion camps to teach them authentic Chinese values, before, during, and no

1 Lukas van den Berge, ‘Biopolitics and the coronavirus: Foucault, Agamben,
Žižek’, (2020) 49(1) Netherlands Journal of Legal Philosophy 3-6. Available at
SSRN: https://ssrn.com/abstract=3566072 SSRN 3566072.
2 Cristiano Paixão and Juliano Zaiden Benvindo, ‘”Constitutional dismember-
ment” and strategic deconstitutionalization in times of crisis: Beyond emergency
powers,” Int’l J. Const. l. Blog, 24 April 2020, available at http://iconnectblog.
com/2020/04/constitutional-dismemberment-and-strategic-deconstitutionaliza-
tion-in-times-of-crisis-betond-emergency-powers/.
3 Simon Western, “Covid-19: An intrusion of the Real. The unconscious unleashes its
truth”, Academia.edu, available at https://birkbeck.academia.edu/SimonWestern.
4 Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (The Gambia v. Myanmar), Order, 23 January 2020, International
Court of Justice, General List, no. 178.
204 David Fraser

doubt after the coronavirus.5 India attempted to reconfigure its laws to exclude
citizenship for many Muslims.6 Dingong Duterte in the Philippines cured himself
of being gay by being surrounded by beautiful women, urges regulatory simplifi-
cation to aid his economic supporters and allies, and gives official approval to the
killing of drug dealers as enemies of the state.7 In Brazil, Bolsonaro destroys indi-
genous populations in the name of economic progress and allows the coronavirus
free reign in the favelas.8 In the United States, Trump used the invasion of “bad
hombres” from the south to take military funding to build his wall.9 He asserted
ordinary executive powers to exclude travellers from Muslim countries.10 Detention
camps for migrants from Australia to the Balkans to Italy are a commonplace of
normal governmental practice.11 The camp is no longer, if it ever was, a place of
exception or emergency. Attacks on Roma in every country in the European
Union, where their status as gens du voyage poses a threat to sovereignty of the
nation state and the pan-European polity at one and the same time, continue
unabated.12
The pandemic simply gives an excuse, and a broader power and authority to
governments who wish to use it, to institute long-term anti-democratic reforms
that will persist after the exception. This is the fear, and the reality, of Orban’s
Hungary, but that country is perhaps only the exception to the exception.13
History teaches us that the processes of states of emergency and exception are
constituted by complex matrices of power and resistance. The most effective
tools of ideology, politics, and law have always involved the invocation of the

5 Darren Byler, “Violent paternalism: On the banality of Uyghur unfreedom”, (2018)

16 (24–4) The Asia-Pacific Journal: Japan Focus, available at https://apjjf.org/2018/
24/Byler.html, 15 December 2018.
6 “‘Muslims are foreigners’: Inside India’s campaign to decide who is a citizen”,
New York Times, 4 April 2020.
7 “Duterte says he “cured” himself from being gay”, New York Times, 3 June 2019;
Hannah Ellis-Petersen, “Rodrigo Duterte’s drug war is ‘large-scale murdering
enterprise,’ says Amnesty,” Guardian, 8 July 2019.
8 ‘What Brazil’s President, Jair Bolsonaro, has said about Brazil’s Indigenous Peoples’,
Survival at www.survivalinternational.org/articles/3540-Bolsonaro; “Lula: Bolso-
naro leading Brazil ‘to slaughterhouse’ over Covid-19”, Guardian, 17 April 2020.
9 Maggie Haberman and Zolan Kanno-Youngs, 'Trump plans to divert additional
$7.2 billion from military to wall', New York Times (1 January 2020); 'Donald
Trump’s contempt for democracy’, New York Times (20 October 2016); 'Donald
Trump: Deport "bad hombres"', New York Times (20 October 2016).
10 John Doe et al v Donald Trump et al., Stipulated Dismissal, Case 2:17-cv-00178-
JLR, Document 205, 10 February 2020, United States District Court, Western
District of Washington, Seattle.
11 Irit Katz, “Between Bare Life and Everyday Life: Spatializing Europe’s migrant
camps”, (2017) 12(2) Architecture Media Politics Society 1, DOI:10.14324/
111.444.amps.2017v12i2.001.
12 “EU to delay human and minority rights initiatives due to Covid-19”, EURACTIV,
16 April 2020, available at www.euractiv.com/section/eu-priorities-2020/news.
13 “Hungary’s emergency law ‘incompatible with being in EU’, say MEPs group”,
Guardian, 31 March 2020.
 Afterword 205

need to protect, to immunize, the body politic from a foreign threat. The pan-
demic has merely allowed the invocation of these signifiers in a blatant and overt
way, bringing to light already present prejudices and hatreds. The figurative virus
of history has become the literal virus of the present.
For Donald Trump, Covid-19 is a new “Yellow Peril,” a Chinese virus.14
Exceptional measures inside and at the border continue in a slightly mag-
nified, and more legally plausible, form. In India, anti-Muslim violence,
already widespread under Modi’s proto-fascist attempts to change the
citizenship laws, has morphed into the creation of a Muslim virus, spread
perniciously by the Other among true (Hindu) Indians.15 In Israel, ultra-
Orthodox Jews protest against the secular authorities of the Jewish state
and their attempt to identify and isolate them for what they experience, or
classify for their own political ends, as discriminatory, anti-religious pur-
poses.16 In the United States, Canada, and throughout Europe there has
been a rise in anti-Asian violence against the Chinese virus and its embo-
died enemy carriers.17 At the same time, the Jew as virus, the signifying
apparatus of law and politics so popular among the Nazis, has simply
been reconstituted by today’s antisemites.18 Historical “fact” gives way to
a reconstituted historical present as new/old tropes and signifiers are
deployed by the opponents of the “deep state” and “fake news.” Anti-
lockdown demonstrators invoke Holocaust imagery, introduce tropes sig-
nifying and constructing modern liberal government as a Nazi regime in
disguise, controlled by the Jews Soros and the Rothschilds. The idea of a
Nazi Jewish regime is deployed with no apparent ironic, and certainly no
historical, self-understanding. The protesters create a self-signification as
the real victims of Hiterlite/Jewish oppression.19 They demand a return to
normal constitutional order, an order which for many requires the decon-
struction of the state itself. Those on the far right have found a danger to
true democracy in the invocation of the state of exception by authorities
they consider antithetical to “authentic” values. As Elie Mystal has con-
cluded, this is a new embodied form of constitutional unpatriotism.

14 “‘Not racist at all’: Donald Trump defends calling coronavirus the ‘Chinese
virus’”, Guardian, 18 March 2020.
15 “Coronavirus conspiracy theories targeting Muslims spread in India”, Guardian,
13 April 2020.
16 Loewenthal, Adv. et al v. Prime Minister, HCJ 2435/20.
17 “Targeting Asians and Asian Americans will make it harder to stop Covid-19”,
Washington Post, 2 April 2020.
18 Marcy Oster, “Anti-lockdown protests spawn more anti-Semitic conspiracy the-
ories, Holocaust imagery”, The Forward, 20 April 2020; Lev Topor, “Covid-19:
Blaming the Jews for the Plague, again”, Fathom, March 2020.
19 Frank Hornstein, “Holocaust trivialization at protests isn’t just offensive. It
threatens democracy”, The Forward, 20 April 2020; “Dutch-Muslim politician
tweets Jewish yellow star to protest coronavirus surveillance plan”, Jewish Tele-
graphic Agency, 20 April 2020.
206 David Fraser

Solidarity is for them a demand from the deep state that must be resisted
in the name of liberty.20 The battles of resistance to the power of the state
of exception can and do take on forms sometimes as dangerous as the
emergency itself.
In the anti-lockdown protests against public health measures we can
uncover the real nature of the exception and its juridical apparatus. When
those on the left voice their fears of a surreptitious attack on civil liberties and
on broad understandings of the appropriate place for social solidarity in
modern democracies, when Orban and Modi use the virus to deepen their
power and authorise violence against the enemy, and far-right protesters
invoke a Jewish plot to control true citizens and profit from the cure for the
“fake” or manufactured pandemic, the law and politics of emergencies come
into the light in a much clearer fashion. The state of exception is never simply
about the “state” in the exception, but more centrally focuses on deeper
iterations of the nation and its others. Everywhere the idea of the nation, of
an authentic identity combatting pretenders, including the state, the “deep
state,” and real Other, becomes the true ideological, political, and legal point
of contention in the different, but always recognizable, states of exception.
Before Covid-19, as Fusco (chapter 1) and Cercel (chapter 2) highlight,
France lived under a state of emergency for significant periods of Fifth
Republic democracy. From “Muslim terrorism” to the gilets jaunes and pen-
sion reform protests, the constitution and a supplementary legislative frame-
work establish the legal context for the exception that is not one.21 Before the
pandemic, in eastern and central Europe, conservative, populist, nationalist
governments turned back democratic reforms and reconfigured institutional
arrangements in the name of national identity and sovereignty, with gutless
non-reactions from their neighbours and the European Union.22 All that was
and is needed in each of these cases, and others studied by the contributors to
this volume, is an identified enemy and law.
As Fusco (chapter 1) argues, the creation of the enemy, of the threat to
the state, or the nation, of the war that demands and indeed creates the
exception, is largely an ideological device. Rhetoric and propaganda,
assertions by executive and legislative branches of a public emergency,
demanding exceptional measures, are left unchallenged or merely con-
firmed by the judicial branch of liberal democracies. The “historical”

20 “These people aren’t freedom fighters – they’re virus-spreading sociopaths”, The

Nation, 21 April 2020.
21 Bruno Latour and Nikolaj Schultz, “Gilets Jaunes as an occasion to restart poli-
tics”, Dagbladet Information, 15 December 2018; French Constitution, Article 16,
Article 36, Loi no 55–385 du 3 avril 1955, relative à l’état d’urgence.
22 Wojciech Sadurski, “Poland’s ruling party just made its anti-democratic agenda
radically clear”, Washington Post, 13 September 2019; Martina Klicperová and
Jaroslav Koštál, “European Sociopolitical Mentalities: identifying Pro-and Anti-
democratic Tendencies”, (2015) 17 European Societies 301.
 Afterword 207

requirement for the factual existence of a state of war or revolution is now

replaced, or more accurately reversed, by the jurisprudential demand that
the factual conform to the legal. The state of exception, like law itself for
legal positivists, which has much to answer for here, determines the con-
ditions of its own existence. The exception as fiction becomes the excep-
tion as juridical and political reality.
As Cercel reminds us (chapter 2), the Kelsenian Grundnorm and the
apparently cruder (or perhaps more honest?) Schmittian project of politicizing
law can lead and have each led us to the state of exception. No jurisprudential
understanding or device can save law from itself, particularly when law does
not wish to be saved from its true self. Both Kelsen and Schmitt have laid the
intellectual groundwork for those who followed a path of constitutional
legitimation and strict legality within and underneath the state of exception.23
Non-normative positivism of the Hartian variety, the great différend of the
Anglosphere, most clearly underscores the position of law as the determinant
of its own existence at the core of legalized atrocity.24 Normative theories of
Marxism, as the great jurisprudential challenger to liberal and anti-liberal
legal theory, offer no solace. As Cercel highlights, law was never absent from
a Stalinist state of exception in the USSR or the “satellite” jurisdictions of
central and eastern Europe. At the intersection of political theory and the
practical invocation and implementation of the state of exception we always
find law.
We likewise find law at the intersection of the state and the individual, the
citizen, the patriot, who can be transformed with little effort into the homo
sacer. As Tacik illustrates (chapter 3), an appropriately nuanced and critical
account of the concept of sovereignty as articulated in international law
theory, but especially practice, leads us, perhaps inevitably, to a place of the
lawful exception. History, as both Tacik and Cercel demonstrate, places us in
a state of exception that can only be law-full. Emergencies are legal fictions
with real world consequences as the repressive and ideological state appara-
tuses find their best and most appropriate, and perhaps, “natural,” iteration in
the identification of the war, the emergency, the enemy, the Homo sacer, the
exception, as a juridical reality.25
Lavis (chapter 5) elucidates the jurisprudential analysis that places law at
the centre of the exception with a careful study of the jurisprudential history
of the Schmittian exception as deployed by Agamben and attacked by his
critics. In the context of the Nazi state, he rightfully situates the Schmitt/
Agamben position in the context of Fraenkel’s emplotment of the “Dual

23 Or Bassok, “The Schmitelsen Court: The question of legitimacy”, (2020) 21

German Law Journal 131.
24 HLA Hart, “Positivism and the separation of law and morals”, (1958) 71 Har-
vard Law Review 593.
25 Louis Althusser, “Idéologie et appareils idéologiques de’État”, (1976) Positions
(1964–1975), (Paris: Les Éditions sociales, 1976), 67.
208 David Fraser

State.”26 Law and the Nazi state were in a constant position of self-contented
juxtaposition and mutual reflection throughout the 1933–1945 period. Any
argument that this was not the case must confront the historical and con-
stitutional realities set out and analyzed by Lavis. As Kivotidis (chapter 6)
also makes clear, the insights of Schmitt and Agamben into the core law/
exception nexus are not marginal to our endeavors. We have known, or
should have known, for some time that “law is politics.” To dismiss Schmitt is
to dismiss the central reality of law as a political phenomenon in either its
“normal” or its “exceptional” manifestations. There is never, nor can there be,
any kind of fundamental normative or taxonomical change from the Schmit-
tian consolidating conflict between friend and foe within a state of exception.
The politics of the exception are always political, and the law of the exception
is always law.
Kai Ambos in his recent work has established and carefully analysed the
close and intractable links and continuities between Nazi criminal law, the
immediate pre-Nazi period, the 1933–1945 “caesura,” and the post-Nazi
period.27 The time has come to move beyond any debate that Nazi law was
not law, or that the National Socialist period was marked by some kind of
pure exceptionality devoid of law. An appropriately nuanced “rediscovery” of
Schmitt is a step in the right direction. The normativity and legality of the
exception are core elements of any confrontation with the emergencies that
constitute our lived realities. This does not mean, as the writers in this volume
make clear in a variety of historical and geo-political contexts, that we must
resign ourselves politically to a Schmittian right-wing political dictatorship.
The dynamics and outcomes of power/resistance are not written in jur-
isprudential or political stone. We simply need to become comfortable with a
legal philosophical place where the actual nature of the form and content of
Nazi law, the position of exceptionality within its normative structures, and
the ideas of a truly constitutive “exceptionalism” are placed at the centre of
our historical and philosophical inquiries. When, as a jurisprudential matter,
the Nazi state is understood as a legal state, the exception as a lawful con-
stitutional moment, true critical engagement can begin. When we arrive at
this constitutional and constitutive realization, Trump, Orban, Modi, Bolso-
naro, Duterte, et al., for all the necessary contextual differences, occupy a
similar and comparable jurisprudential space.
The political and philosophical critique of our current legal/political
regimes and the place of the “exception” within that social and juridical order
are at the heart of all the contributions to this volume. From French con-
stitutional normativity to the historical events and jurisprudential

26 Jens Meierhenrich, The Remnants of the Rechtsstaat: An Ethnography of Nazi

Law (Oxford: Oxford University Press, 2018).
27 Kai Ambos, National Socialist Criminal Law: Continuity and Radicalization
(Nomos/Hart: Baden-Baden/Oxford, 2019).
 Afterword 209

developments of natural law and legal positivism in European and English

legal theory and legal history, the different forms of the law/exception nexus
are clear. As Kivotidis sets out, our existential position can only be properly
situated, and forms of possible resistance identified, if we understand the
centrality of Schmittian jurisprudence to the historical realities of the con-
stitutive orders of norm and exception from Weimar to National Socialism,
from the new Europe of “rights” to normal and ordinary exceptional regimes
around the world.
The current situation must also be placed in another set of institutional and
jurisprudential frames that operated, and operate today, in Europe. As Cercel
(chapter 2), Johansen (chapter 4), and Mańko (chapter 7) elucidate in differ-
ent circumstances and in the context of multiple legal/political ideologies, the
state of emergency, the exceptional rules of law under “extraordinary” cir-
cumstances, are not known only to “westernized” natural law or legal positi-
vism, from Kelsen to Hart. The state of exception, in different but related
guises, was never unknown to socialist/Marxist legality. Law has not dis-
appeared as the state withered away; the commodity form has not been
superseded by a non-legal reconfiguration of social relations. The dialectical
oppositions of actually existing socialism and its exceptions were always pre-
sented in political and juridical guises. The current state of right-wing, anti-
democratic populist governmentality and law in Poland has its historical,
special, political, and jurisprudential roots in the martial law regime in that
socialist country from 1981.
Issues of exception, emergency, constitutional order, and re-ordering are at
the heart of the modern legal history of Europe. The moves from capitalism
to the dictatorship of the proletariat, (through the vanguard of the revolution,
the Party), from democracy and the Weimar crisis to “Nazi dictatorship,” and
from Communist “dictatorship” to democracy post-1989, are less character-
ized by “transition” or transitional justice, than by the substitution of one
form of the legal exception by another, equally lawful, state of emergency.
Law, it would seem, in all its guises, democratic capitalist, National Socialist,
Marxist Leninist, has always found, and has had to find, space in its own
normative and institutional structures for the state of exception.
Yildiz (chapter 8) moves the geographical frame to Europe’s legally con-
stituted formal borders, but the legal history echoes the same ideological
structures and state juridical practice. From democratic regimes, to military
rule, to Erdogan’s populist, quasi-Islamizationist AKP, the laws of emergency
have been invoked over and over again to protect the nation. The nation and
its others situate legality and the exception wherever they are found as foun-
dationally juridical phenomena necessary to safeguarding, preserving, and
constituting, legally and politically, the real Turkey.
The Schmittian enemy remains a constant of our political and legal reali-
ties. Kurdish nationalists, democrats, gilets jaunes, Muslim terrorists, or just
Muslims, striking shipyard workers, Jews, Nazis, communists, the “deep
210 David Fraser

state”—the identity of the enemy matters little. Every state, every nation
concretized inside or outside, or even in opposition to, formal nation state
structures has complex or crude mechanisms for identifying the internal or
external enemy and for dealing with the threat through the state of the
exception. The taxonomies deployed are always, despite local, national parti-
cularities and specificities, reducible to a juridified enemy who must be elimi-
nated. As Raimondi (chapter 9) sets out, liberal democracy, the rule of law,
the Rechtsstaat, are no shield. In Italy, this enemy, foreign and domestic, in
the form of G8 protesters, can be identified, singled out, “exceptionalized,”
and as the Homo sacer, beaten and killed by the forces of a legitimate demo-
cratic European legality. The new European order, the Europe of human
rights, a Europe allegedly constructed on the premise of a post-1933–1945
legalized “never again,” confirms the state’s right to kill within some regime
of undefined, but apparently murderous, legal proportionality.28 There is, as
there has always been, a legal frame in which the state of exception permits
the execution of its will through the execution of its enemy.
Johansen (chapter 4) offers a somewhat more optimistic (but still always
realistic) argument that the condition of law/emergency is perhaps not per-
manent. He seeks to place law in a minor key, reduced in power and sig-
nificance, by social and political actions of reorganization and re-ordering.
The dynamics and possibilities of resistance to emergency power can be
identified. The process of a new, diminished legality and the questions of
social practices as moments of resistance to law, of the reconfiguration of a
knowledge/power juridical and political dynamic, of norm and exception, are
however still decided within a legalized frame that appears to be dominated
by law and lawful exceptions. The identification of spaces available for a
Johansenian resistance appears from this perspective to be one of practising
deconstructive politics, of identifying the necessary lacuna, the signifying
break in the chain of social meaning through political endeavor. The decon-
struction occurs in a moment or in a place, in a spatio-temporal site, a point
of weakness into which a new politics might make some form of disruptive
incursion. The problem, the legalized exception as resistance to counter-
power, may or indeed must always nonetheless remain. Writing law under
some form of political erasure still requires both the original writing of law
and the irreducibility of the law that remains, even when deconstructed. The
dynamic relationship between that which is written (law) and that which is
erased (law) must still, as Johansen recognizes, as do the other contributors to
the volume, operate in the new relationship and dynamic of the written that is
resistance. Law has yet to wither away or to be replaced in any meaningful
fashion by some still ill-defined and barely recognizable set of social practices
that would eliminate, or even significantly reduce, the omnipresence of a

28 Stephen Skinner, Lethal Force: The Right to Life and the ECHR (Oxford: Hart,
2019), 92, 139.
 Afterword 211

looming state of legalized emergency. The enemy is always present because

the enemy is the fictionalized sine qua non of the conditions of law’s excep-
tional existence.
Instead of glorifying the rule of law or the Rechtsstaat that can kill when
“necessary” and “proportional,” hardly criteria meant to instil confidence on
the question of which side of the line we might fall, every entrance to every
law faculty and court house should carry Dante’s inscription, “Abandon hope
all ye who enter here.” Nonetheless, as we despair, we continue to get out of
bed every day. We remain socially isolated, Covid-19 or no Covid-19. We are
full and free democratic citizens, socially distant, confined, living in a world of
the commodity form and commodity fetishism. We inhabit and are inhabited
by the emerging rule of data. We are always already more consumers than
citizens, more data points to be exploited than free subjects of law imbued
with transcendent and inherent “rights.” We may no longer need emergencies
and exceptions when we can simply consent to whatever cookies we encoun-
ter. As jurists, whether we like it or not, whatever our practices and moments
of resistance may be, writing chapters in a book about the state(s) of excep-
tion, we incrementally strengthen the enemy, law, as we fight against it. There
is no anti-law vaccine.

David Fraser, FAcSS

Professor of Law and Social Theory
University of Nottingham
Index

Abu Ghraib 201 authoritarianism 2, 3, 8, 43, 127

Academics for Peace 178; see also Turkey autocratic legalism 2
Ackerman, B. 24
actually existing socialism 12, 140–42, Bała, P. 163
158, 209 Bazyler, M. 97–98
administrative detention 153, 164 Being 61, 63, 85 see also Heidegger, M.
Agamben, G. 7–9, 18, 22–23, 26, Benjamin, W. 8–9, 41–42, 47, 49, 54,
29–30, 44–50, 52, 54–63, 66–69, 74–75, 83–84, 103, 184–88, 194–95
72, 73–75, 77–78, 82–86, 88, 93, biopolitics 45–47, 63, 181, 203; biopower
101–110, 113–115, 140, 169–170, 70; see also Foucault M.
172–73, 175, 178–82, 184–85, bios 47, 58, 190; zoe- 47, 58, 190; see also
189–90, 195, 200–201, Agamben G.
207–208 body politic 204
Althusser, L. 36 borders 70, 174, 200–201, 204, 209
Akçam, T. 172 bourgeois society 79–81, 119, 124–26,
Ambos, K. 208 128–30, 132, 136, 140; bourgeois
amnesty 154–55, 172, 174, 180, 182, legality 42, 78, 140
Amnesty International 180, 198, Boyle, M. 192, 196,
Anarchism 75, 85 Brazil 204; Bolsonaro J. 3, 204
anarcho-syndicalism 147–48 Butler, J. 170, 173–75, 188
anomic state 12, 169, 174–76,
179–180, Caldwell, P. 111–112
anomie 49, 103, 169–170, 172–73, 175, camp 11, 39, 46, 55, 68–71, 73–74,
178–79, 184, 187, 189, 192, 194, 92–93, 95, 104, 105–107, 110, 184,
199–200 190, 196–201, 203–204
antisemitism, 205 Canada 205
archè 52, 63 ; see also Agamben, G. Capitalism 12, 59, 63, 75, 119, 127,
Arendt, H. 45, 54, 69, 190 130, 142, 147, 157, 163, 166, 209;
Aufhebung 59, 83 capitalist society 80; contradictions
August Agreements 146–47 see also (socio-economic) 119–20, 125–26,
Poland 129–30, 133–34, 137–39; finance
Auschwitz 93, 103–105, 108 see also capital 131–32; reproduction 12,
Holocaust 119–20, 123, 125–26, 128, 133–34
Ausnahmezustand 62 see also Schmitt, C. see also Marxism
Austin, J.L. 30–31 Catholic Church 145, 149, 152
Australia 204 Ceauşescu, N. 44
authoritarian turn 2, 169 see also Cemal, P. 172
populism China 203
 Index 213

Christianity 62, 84 deconstruction 44, 84, 205 see also

civil liberties 16, 206 Derrida J.
civil war 6, 22–23, 41, 51, 61, 177–80 see della Porta, D. 197
also stasis democracy 3, 6, 44, 58, 68, 129, 132, 135,
class 78, 80, 84, 119, 121, 125, 126, 148, 169, 173, 175, 198, 204–206
128–31; 132–38, 141, 144, 146, Derrida, J. 58
176; class relations 80; class destituent power 81, 83–86
struggle 49–50, 119–20, 125–28, destitution 46, 49, 82–83
132–38 dictatorship of the proletariat 43, 75, 80,
coercive force 73, 76, 87 159, 204, 209
Cold War 176 dictatorship 12, 19, 22–23, 26, 32; 41, 43,
Collège de France lectures 68 see also 75, 80, 100, 123, 159–62, 165, 178–79,
Foucault, M. 208–209; commissarial dictatorship
coming community 74, 85–86 see also 99, 120, 122–23, 159, 163, 165;
Agamben, G. sovereign dictatorship 99, 100,
commodity 42, 78–79; commodity 101–102, 120–24, 159–60, 163,
fetishism 211; commodity form 209 165–66; see also Schmitt C.
see also Marxism différend 207
communism 36–37, 44, 74, 76, 78–81, Doty, R. 113–14
85, 87, 176; wartime communism dual state 94–95, 102, 105, 107–110, 114,
141–42, 159 122, ; normative state 109, 123, 128, ;
Communist Party of the Soviet Union, 43 prerogative state 94, 96, 98, 106, 107,
conflation (philosophy) 56–63, 67–68 see 109–110, 114, 116, 123, 128 see also
also threshold Fraenkel, E.
constituent power 48, 82, 98–99, 101, Duterte, R. 204, 208
121, 123–24
Constitution (of the Polish People’s economic crisis of 1929 119, 130
Republic) 141–42, 150, 156, 158–59 economic reforms 163–65
see also Poland efficacy (law) 39–40, 44, 50, 52, see also
constitutional guarantees 17, 35–36 Kelsen H.
constitutional law 9, 36, 42, 56, 79, efficiency 120, 124, 128
136–37, 160 Elshtain, J. B. 65
constitutional order 98, 100–101, 107, Enemy 21, 23, 113, 120, 124–26, 130,
111, 121, 124, 160, 205, 209 134, 138, 163, 205–207, 209–210 see
Corinthians 83 also Schmitt C.
Coronavirus 203–204 Engels, F. 76, 80, 142
counterterrorism, 173 Enver, P. 172
criminal law 79, 86–87, 89, 111, 171 Erdoğan R. T. 209
crisis 3–4, 16, 19, 21–24, 32–33, 39, eschatology 49, 84
119–20, 129–33, 145, 160, 163, Europe 8, 36, 64–65, 71, 205, 208–210;
172, 185, Central Europe 39, 131, 206 Eastern
curfew 152, 154, 167, 169, 176–81 Europe 147, 207
Czechoslovakia 147, 149 European Commission for Democracy
through Law 177
Daesh 15; see also terrorism European Convention on Human
Dante, A. 211 Rights 71
Debord, G. 59 European Court of Human Rights 182
decision 17–21, 23–24, 27, 29, 32, 39–40, European Union 204, 206
43, 63, 65–67, 71, 89, 94–95, 99–101, exception (philosophy) 56, 138,
110, 112–16, 120, 124–28, 130–31, 184–187, 190
134–38, 143, 152, 156, 165, 175, executive powers 1, 98, 109, 185, 204
185–91, 194–95, 199 see also Schmitt C. extraordinary measures 5, 148–49
214 Index

far right 35, 205–206 Hobbes, T. 52, 82

fascism 131, 137 Hollande, F. 15, 173
feast 82, 172–75, 180, 183 Holocaust 8, 92, 101, 104–105, 110,
Ferejohn, J. 5 116, 205
fiction 19, 23–32, 103, 121, 189, 203, 207 homo sacer 45, 106, 207, 210 see also
First World War 38–39, 41, 42, 51, 61 Agamben, G.
force of law 6, 109, 189; see also Derrida Hope, A. 21
J.; see also Benjamin W. human rights 2, 15, 38, 47, 67–71, 90,
Foucault, M. 45, 68, 181, 201 167, 183, 193, 210
Fraenkel, E. 94–97, 105, 107–109, 114, Hungary 147, 204
122, 128, 207
France 15–16, 173, 206; French ideological state apparatuses 205, 207;
Revolution (of 1789) 18–19, 61; Paris repressive state apparatuses 207; see
20, 35, 173; Vichy 69; yellow vest also Althusser, L.
protests 35, 206 ideology 37, 42, 90, 101, 107–108,
Frankenberg, G. 18 110–111, 114, 124–26, 129, 134,
Fraser, D. 110 161, 204
free trade, 130 indeterminacy 25, 102
frontispiece 52 India 203–204
Fuller, L. 6, 27 inoperativity 57, 81–82
fundamental rights 2, 38, 99, 141, 143–44 International Covenant of Civic and
Political Rights 157
genealogy 7, 22, 34, 50, 52, 181 see also international law 8, 11, 55, 56, 60–61,
Foucault M. 63–72, 77; treaties 66;
general will 43, 121, 135 interwar period 5, 7, 35, 40–41, 43, 47,
genocide 68, 92, 172, 203 50, 119, 133, 137, 171
Germany 43, 69–70, 92–94, 96, 100, Israel 77, 205
102–103, 105, 108, 110, 112, 114–116, Italy 10, 204, 210, Genoa G8 summit 184
119–120, 126, 129, 131, 136; Freikorps Genoa Social Forum 193
129; German Democratic Republic ius politicum 142–43, 145, 156,
147, 149; German Labour Front 163, 165
136–37; German Revolution of 1919 iustitium 22–24, 48, 62
119; see also Nazi state; see also Nazi
law; see also Weimar Constitution; Jaruzelski, W. 150, 156, 158–63
gesture 60; see also Agamben, G. Jesus 59
Gierek, E. 146–47, 164 Jowitt, K. 142
God 59, 64 Judaic law 74, 77, 85
Governmentality 201, 209
Gramsci, A. 203 Kaczyński, J. 3
Grievability 175, see also Butler J. Kafka, J. 60
Grundnorm 39, 207 see also Kelsen H. Kania, S. 147
Guantanamo Bay 199, 201 Kelsen, H. 38–41, 47, 50–51, 66, 185,
207, 209
Halacha 74, 77, 85 Kershaw, J. 94–97, 106, 111–12
Hamilton, A. 25, 29 khôra 58
Hegel, G. W. F. 59, 65, 69, 138–39, Kramer, M. 149
Heidegger, M. 46, 60–63, 72, 85 Krebs, A. 133
Heraclitus, 66 Kripke S., 56
Hindenburg, P. v. 96–100 Kurdish population 178, 180, Kurdish
Hitler, A. 11, 43, 95–100, 102, citizens 177–80, Kurdish Worker’s
105–106, 109, 112–13, 122, 124, Party see also Turkey
128, 131–33, Kurdish rebellion 170
 Index 215

Lacan, J. 52–53, 143 nation state 12, 71–72, 170, 174, 176,
language (philosophy) 46, 55, 59, 63, 178–80, 204, 210
67, 70, 74, 82, 89; legal language National Socialism (ideology) 36, 92,
25, 29, 74; legal performance 31; 97–99, 111–12, 127, 137, 209,
performativity 10, 18, 30–31; speech Nationalism 2, 4, 35, 37
act 30–31; system of signification 6, Nazi law 11, 92–96, 101, 103, 105, 109,
45, 53 see also Austin, J. L. 115–16, 209; Nazi legal system 93, 94,
legal fiction 10, 18, 21–22, 26–28, 207 111; Nazi legality 93–94, 108, 110;
legal form 4, 5, 11, 37, 38, 40–43, 50, Nuremberg laws 69
80–81, 88, 90, 96? 129, 144, 156, 175; Nazi state 92, 95, 97–98, 100, 104,
legal relations 42–43, 74, 79–80, 86; 107–109, 112, 114, 119, 122–26, 130,
legal superstructure 43 see also 133, 135–37, 207–208; Enabling Act
Pashukanis, E. 97, 100–101, 122–25, 133; Führer 43,
legal theory 28, 40, 46–47, 81, 115, 207, 209 94–97, 101, 103, 106, 108, 110–115,
legal certainty 2–3; legal proportionality 126, 135–36; führerprinzip 94, 101,
56, 210 108, 111–15, 126, 136; führerstaat 110;
legitimation 123, 135, 201, 207 Nazi ideology 107, 110, 112, 115;
Lenin, I. V. 76, 87, 142 National-Socialist Party 102, 123, 125,
Leninism 141–145, 148–49, 159, 137; Reichstag Fire Decree 96, 98,
161–64, 209 100, 123, 133
Łȩtowska, E. 164 Neocleous, M. 5, 138
lex scripta 142–43, 145, 156, 163, neoliberalism 81, 166, 181,
liberal democracy 1, 4, 12, 34, 135, 198, neutralisation 41, 82
210; liberal legality 2, 22, 53 Nietzsche, F. 2, 66
liberalism 2, 36, 41, 148, 181 nomenklatura 143, 146, 165–66
Liebknecht, K. 129 Northern Ireland 44
Loick, D. 77–78, 88, 90 Notrecht 139 see also Hegel, G. W. F.
Loraux, N. 179
Löwith, K. 62 Orbán, V. 3, 204; 206, 208
Lukács, G. 51
Luxemburg, R. 129 Paczkowski, A. 151, 161
Pandemic 203–206
Maine, H. 27–28 Pashukanis, E. 11, 42–44, 47,
Mandelstam, O. 9–10 73–88, 91
Marion, E. 104–105 Pasquino, P. 21
martial courts 171 Paul, St. 83
martial law 4, 34, 38, 97–98, 110, Philippines 204
140–43, 149–66, 209 Pilate 59
Marx, K. 76, 142 plebiscite 97, 122, 126, 135
Marxism 41–43, 49, 51, 74–76, 78, 81, Poland 10, 12, 140–66; Commissioner for
84–85, 149, 159, 161, 164 Citizens’ Rights 164; Gdańsk 146,
.
Mazewski, L. 143 160; Institute of National Memory
Mazower, M. 105 147; Military Council of National
McLoughlin, D. 102 Salvation 151, 159–60; Ministry of the
minor law 73, 76 Interior 144, 153; Patriotic Movement
minorities 172, 174 of National Regeneration 152; Polish
modernity 11, 36, 46, 48, 52, 55, 59–67, People’s Republic 156–59; Presidium
71–72, 93, 188 of the National Coordination
Modi, N. 205 Commission of Solidarity 148;
mourning 172–75, 180, 182–83 Round Table agreements 157,
Myanmar 203 162; Sejm 149, 165; Solidarity
Mystal, E. 205 157–62, 166
216 Index

Politburo 142–43, 147, 156, 162–63 social law 87, 89

political theology 49, 102, 138; see also socialisation 40, 148, 166
Schmitt C. socialism 80; state socialism 141, 148,
popular sovereignty 121, 135 150, 157–59, 162 ; socialist legality,
populism 2, 4 140, 143–44
potentiality 30, 82 Sohn-Rethel, A. 131
prerogative power 92, 94 sovereign debt 145
primitive law 66 sovereign police 195–96
private law 42, 79, 81, 86; property 19, sovereignty 36–41, 55, 60–70, 74, 77,
76, 79, 86–89, 120, 123, 128–139 95, 104, 108, 112–15, 121–24, 127,
profanation 3, 52, 89–91 135–38, 178, 186–89, 195, 204,
proletariat 81, 138, 140, 159 206, 207
protectionism 130, 133 Sowa, J. 147
public law 18, 23, 26, 42, 62, 79, 80, 120, Spivak, G. C. 170
122, 125 Stalin, I.V. 43
Putin, V. 3 stalinism 43–44, 76, 141, 207
stasis 6, 51, 178–82
Real (psychoanalysis) 46, 143; see also state of emergency 15–18, 20, 23–24,
Lacan J. 32–33, 35, 93, 98, 100–101, 104, 138,
Rechtsstaat 55, 92, 105, 108, 124–25, 140, 142, 148, 150, 157, 168, 173,
134, 163–64, 210–211; see also rule 176–77, 182, 203, 206, 209; emergency
of law legislation 97, 143, 165; emergency
referendum 122, 168, 178 measures 19, 38, 53, 99–100, 153, 177;
revolution 37, 39–44, 47, 49–51, 74–76; emergency powers 1, 4–5, 7, 10,
85–89, 99, 129, 147, 158–61, 165, 167, 17–19, 21, 25, 29, 96–98, 100, 138
207, 209; communist revolution 74, state of exception 1, 5–12, 16, 19, 21–26,
85; proletarian revolution 129; 28–34, 39–51, 56–62, 69, 73–75, 84,
revolutionary jurisprudence 76, 85 92–95, 97–114, 122, 140–41, 150–51,
Roberts, S. 88 156–60, 165–66, 169, 171–76, 181,
Rohingya 203 185–86, 189, 195, 197, 199, 200–201,
Roma 204 203, 205–210; exceptional measures
Roman law 22–24, 27, 45, 50, 62 171–82, 184, 197, 201–202, 205–206;
Rose, G. 173 exceptional powers 17, 19, 25–26, 32,
Ross, A. 104 128, 185; see alsoAusnahmezustand;
Rossiter 21, 32–33 see also Agamben, G.
rule of law 50, 92, 96, 111, 137–38, 141, state of peace 17, 19
143–44, 148, 161–65, 177, 185–86, state of siege 4, 6, 18–24, 176; fictitious
188, 191, 194, 199, 210–11 state of siege 19–21, 26–28
Ruritania 21 state of war 4, 16, 20
Stolleis, M. 86, 110
Sacrifice 42, 45, 59 strike 83, 137, 146–147, 149, 152, 154,
Samuels, G. 29 158, 164, 166, 182,
Scheppele, K. L. 17 study 52, 84–86, 88; see also Agamben, G.
Schmitt, C. 7–8, 12, 19–22, 29, 32, surplus value 130–32
39–43, 61–67, 93, 98, 100–108, 113, Suslov, M. 149
115, 118–127, 133–38, 159, 165, Symbolic (psychoanalysis) 53; see Lacan J.
184–91, 207–208 symbolic order 34, 46, 53, 64
Schotten, H. 104
Second World War 65, 67, 69, 145,148, Talaat, P. 172
164, 171, 193, 198 Takayoshi, I., 105–107
separation of powers 17, 26 Taubes, J. 62
Sloterdijk, P. 37 Terrorism 4, 16, 24, 178, 180, 206
 Index 217

Third Reich 8, 11, 69–70, 93–98, violence 3, 11, 38, 41–44, 46–47, 49–50,
100–109, 114–15 see also Nazi state 57, 60, 64, 74–78, 82–83, 86–91, 100,
threshold 6, 49, 52, 57–58, 93, 102, 170, 103, 106, 180, 184, 186–89, 191–93,
176–80, 189–90, 195, 200 see also zone 195–98, 201, 205–206; divine violence
of indistinction 42, 49, 83; mythical violence 42, 83;
torture 74, 194, 197, 200 pure violence 49, 187–89; see also
totalitarianism 7, 47, 70, 113, 175, 198 Benjamin W.
transitional justice 37, 157, 209 Volk 69, 101, 106, 110–111
Trump, D. 3, 35, 204–205, 208
tumultus 22–23, 49 Warsaw Pact 141, 148–49, 158, 162, 164
Turkey 10, 12, 167–83, 209; Cizre Warsaw 35
167–68, 180, 182–83, Gezi protests 169, Watkin, W. 57
OHAL (Olağanüstü Hal Kanunu) Weimar Constitution 38, 43, 92, 96–99,
176–77, 180; People’s Democratic Party 101–102, 105, 119, 122–26, 129–32;
182, Provincial Administration Law Reich chancellor 96–97, 125, Reich
177; Turkish Penal Code 176–77; president 96–97,
Turkish Republic 170, 172 welfare state 119, 126–28, 130–31
white mythology 44 see also Derrida J.
United Nations 157, Whyte, J. 86
United States of America 35, 113, Willikens, W. 111
204–205 Wittgenstein, L. 56
USSR 144, 149, 207 workers’ rights 131–32

validity 31, 39–40, 44, 50, 52, 57, 75, 95, zone of indistinction 45, 47–48, 57–58, 60,
109, 123–24, 151, 195 72, 93–95, 108, 111, 114–16, 169, 191