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;;:; !ORClO AG,\ 'J"' r"

)$ prrd0JhM of ar>-tbetks at thoc Univnsity of Verona.

He is thf' .111tlvH<'f h:n prrvinw; h00k, irvlnding the prequd to this one,

Contents

H;Ml(J i)t:r; S(TGrcign Power (If!(} fiMC I.ifr, rub1i!tcd in English by St-anford
L'niy;:r>itr Press,
KEVJ N A TTBtC is

1\ }'<':h1dLCt(lYHI f'Z'lkrw in thi;'. f:ngJlsl1 n\'.[l<irtrmml at 'l he

Hniwr5ity ofC:tl1fiwnia, Davk He i$ the tr.mo!Jtor of Gi<ng(r) Agamben's 'J'h


VJwn: .Hrm ;m;l ,nimd(

'Jl:'anslatnr's Note

rhr l'.uin,rity of Chicago Press, Chicago 6o637

ofl\xcel''"m as a

The Llni\cnitr of r;hk11go Press, Ltd,, London


2005 by The- Uniwrsity of Chicago
All rlghtq resei'VtYI. P11hlished 2005
Printed in the Uniltd States of America

11

t."l 12 n w 09

oS 07 o6 05

1"01'CC-OI-.L!rVI(

Justitium

41

G1gantomacby Conccmlng a Void

Feast, Mourning, Anomie

6 Auctoritas and

) 1 3 4 ,

1 fl N (cloth): OT.l.6009146

References 89
Index of Names

Origim1ly pul,Jlshe,l as Stahr di IXTr:dom', l(nJ Ho1hti .Ronnghi(t'i editm-e


sJ, Torino.
L1hrary ofCongrN-s Cnt,;l<JginginVublkahon Iktta
Ag;;mhcn, Giorgio, 1942
English]

SL1l1 nft'Xaptirm / (brgit> AgJmhcn; tr:>nltttcd hy Kevin Attdt


p.

on.

lndnk.s hlb!ingrOlphiral rdCreno:s (p.


lM\U 0<lt.6H09Z4-6

) and index.

(doth; aJk. papeJ) ---1SllN (hUt' 009'l54 (phk

a!k. pu};er)
L

Wur and ermng;;ocy t<wers.

United Stlltes--Hlstory.

5 St.:ttt' ofni.;geEnn)pf'-Hit<'Y

sitgt'-Unired States-History,

w:w5.AJ413

3 \Vnr and
4 ':1/,1, Jml emergency power-;-

State nfsicge.

o:>mer)jCJKY powers --Europe----History,

(;,State<)(

L Title,

1ous

321.dcz:,

Tht> p:1pcr urrd in

l.(}lj4(H36So
fhh pt:b1k;;tit1n mrds the minimnm

the American 11.1;trit<'t11 StA11(hnl fOr rn1iwrrnl10n

requirements of

Sdn1c'C$Perm:ll1<ln\'C of

f'aper f{n I'iinlf'rl l iht<lCy Mrttr:rtli\, A Nfl I Z39,4S,199:J..

of Govemment

.rt.

1 SJJN (paper): o<2:t600'):%.14

[Stb dl

vH

Potestas

93

74

65

52

Translator's Note

VVherevcr possible, 1 have indll;ded references to published

translations

of Aga.mben's r:rcnch, German, and Italian sources in the retCrences list. Flow
ever, in order lo maintain nmsistcncy in

the text, and

!ishversions hilvefrequently been modJfied. Where an nngilsll edmon ts


hihliography, the fir;;1 page number in the text citation refers to the ongmat,

and the second to the Engii.h edition (e.g., [Benjamin


edition is listed, the translation is mine.

1942., 697/257J). Where

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I'< The State of Exception as a Paradigm of Government

The essential contiguity between the state of exception and sov


ereignty was established by Carl Schmitt in his book Politische Theolo
gie (1922). Although his famous definition of the sovereign as "he who
decides on the state of exception has been widely commented on and
discussed, there is still no theory of the state of exception in public law,
and jurists and theorists of public law seem to regard the problem more
as a quaestio facti than as a genuine juridical problem. Not only is such
a theory deemed illegitimate by those authors who (following the an
1.1

cient maxim according to which necessitas legem non habet [necessity


has no law] ) affirm that the state of necessity, on which the exception
is founded, cannot have a juridical form, but it is difficult even to ar
rive at a definition of the term given its position at the limit between
politics and law. Indeed, according to a widely held opinion, the state
of exception constitutes a "point of imbalance between public law and
political fact" (Saint-Bonnet 2001, 28) that is situated-like civil war,
insurrection and resistance-in an "ambiguous, uncertain, borderline
fringe, at the intersection of the legal and the political" (Fontana 1999,
16). The question of borders becomes all the more urgent: if exceptional
measures are the result of periods of political crisis and, as such, must
be understood on political and not juridico-constitutional grounds (De
Martino 19:73,320 ), then they find themselves in the paradoxical position
of being juridical measures that cannot be understood in legal terms,
and the state of exception appears as the legal form of what cani:wt have
legal form. On the other hand, if the law employs the exception-that
is the suspension oflaw itself-as its original means of referring to and
encompassing life, then a theory of the state of exception is the prelim
inary condition for any definition of the relation that binds and, at the
same time, abandons the living being to law.
It is this no-man's-land between public law and political fact, and
between the juridical order and life, that the present study seeks to

-'

h:

l1

r
1-1

1>

Ch(tpter One

The Stilt of Exception as a Pradigm of GovcnJment

i nve s t igate. Only if the veil covering thjs ambiguous zone is lifted will
we be able to approach an understanding of the st akes involved in the
difference---<Jr the :Supposed difference-- between the political and th e

juridita1, and b<..ctwecn law and the liVing: being, And perhnps only the n
will it be possible to answer the question that never ceases to rcverberak

in the historY of\Vcstern politics: what does it mean to act poJiticaJly?


1.2

One of the dement s that make the state of ex:ception so difficult

to define is certainly its dose relationship to civil war1 insurrectio n ) and

the state of exception appears as a threshold of indetermina<...y between


democrat and absolulism.
R The expression '"global civil war" appears in th e same year

{1963) in hoth

Hannall Art>ndt's On Rrvolution and Carl Schmitt's

( itai.
siege fictif) goes

ever, as we will see) the distinction hetwccn a "wil state of exception"


de siege eff(.t;lif) and a "fictiti<ms state of exception"

(tat

de

back to Prench public !mv theory and wa alreody clearly articulated in Theodor

historiqut> et juridique (18B5), which is at

r<.sistance. Because civil war is the opposite of nonnai conditions, It lies

the orfgins of the Schmitt ian and Benjaminian opp<)sition between a real and

in a zoneofundeddabilitywith respect to the state of exception, which is

a fi<:titious state of exception. Anglo-Saxon iurisontdeno:

state power's irnmed i a1 e response to the most extreme internal conflicts.

of "funded emergency." Fo r tbe.it part, Nazi jurists .spoke openl y of a

Thus, over l_he course of the twentieth centu-ry, we have been able to

Ausnafrrn.ez!lsland, a "willed state of exception," "for the sake of establ ishing

to speaK nen:

w.itness a paradoxical phenomenon that has heen dfectivdy defin ed as

lhe National Socialist State" (Werner Spohr, quot e d. in Drobi5:che and Wieland

a "legal civil war" (Schnur 1983). Let us take the case of the Nazi State. No

199), 28).

sooner did Hider take power ( or, as we shou]d perhaps more accurately

say, no sooner was power given to him) than, on February 211, h: pro

1.3

The immediately l>iopolitical sig n ifican ce of the state of excep-

claimed the Decree for the Protection of the People and the State) which

tion as the ori ginal structure in which law encompasses llving

snspendd the anides of l'he Weimar Constitution concerning personal

hy tneans of its own suspension emerges denrly in the milit ary or

liberties. The decree was never repea led; so that f rom a juridkal stand-

last<.'. Xl twelve years. In this cnse, modern totalitarianism can be defined

missions)) (not to be .:onfuscd with the mHitary tribunals provided for

as the establishment, by means ' of the state of exception, of a legal dvi l

by the law of wa r) of noncitizens suspected of involvement ln t errorist

,.

I
!
I'

!:
!.

the entire Thl1-d Rekh c an be Consjdered a state of t':xception that

war that allows fm the phys i cal e1iminatjon no I only of political aclverw
saries bu t of entire c ategories of citizens who for some reason cannot be

"

der'' issued bythe president of the United States on November 13) 2001.,
which authorized the ''indefinite detention" and trial by "military cum

:tctivitles.
The USA Patriot Act issued by the U.S. Serwte on Octoher 16, 2nm,

integrated into the political system. Since then} the voluntary creation

already allowed the a ttorney general to "tak< into

of a per m anent state of emergency (though perhaps not declared 'in the

suspC'c ted of activities that endangered "the national security of the

cu stod y"'

aoy al ien

technical sense) has' become one of the essential practices of contempo

United States," hut w ithin seven days the alien had to he either released

rary states, including socalled democratic on es.

or charged with the violation of imn1igration laws or some other t.:rimiM

Paced with the lmstopp11ble progression of what has been called a


"global c ivi l

war1" the state of exception tends increasingJy

to appear

nal offense. What is new ahont President Bush s order is that it radically
'

er ases any legal status of the individual, thus prod ucing a legally l.m

as the dominant patadigm of governmeut in con t einpor ary politics.

narnable and unclJssitlahle being Not onl Y do the Taliban Gtptured in

This transformation of a p rovi sion al and exceptional mt:asure into a

Afghani stan not enjoy the status of PO\s as defin ed by the Geneva

technique of govern m en t threatens radically to alter--in fact) has al-

Convention, they do n ot even have the status of persons charged with

alteredth( structure and meaning of the traditional

a critne according to American laws. Neither prisoners nor p ersons ac

distinction between constitutional fi)rms. Indeed, fl'om this perspective,

rused1 but simply "detainees}>

are the object of a pure de tilcto

Chapter One

The Slate of E!((.eption as a Paradigm of Government

of a detention that is indefinite not only in the temporal sense but in its

to put the place in: state of siege''

very nature as well, since it is entirely removed trom the law and from

state of siege has its

judicial oversight. rhe onJy thing: to whkh tt could possibly be compared

8, 1791, whkh distinguii>hed among

is the le gal situation of the Jews in the Nazi

Lager l camps]) who,

along

with their citizenship, had lost every legal ldentily, but at least retained
the ir identity as Jews.

.As Judith Butler has effectively shown, in the de

tainee at Guant<inamo, bare life reaches its maximum indeterminacy.


1.4

The uncertainty of the concept is exactly maldu:d by termlnolog

ical uncertainty. The present study will use the syntagma state <{excep

timt as the technical term for the consistent set of legal phenomena that
it eeks to define. This term, which is common in German tl1eory (Aus

nahmczustrmd, but also NotstatJd, "stte of Il('Cessitf'), is foreign to ital


ian and French theory, which pref<.r to speak of emergency decrees and
st4te of siege (political or fictitious, etat de siegejicti{). .1 n An;do-Saxon
theory the. terms martial law and emergency powers prevail.
If) as. has been suggested, terminology is the properly poetic moment

neutral fn this
a position taken

of thought, then terminological choices can never be

sense) the choice of the term state ofexteptian implies

on both the nature of the phenomenon that we seek to investigate and


the logic most suitable for understanding h. Though lht notions of stnte
ofsiege and martial iaw express a connet'tion with the state of war !hat
has been historically decisive and is present to this day, they neverthe

Iess prove to be inadequate to define the proper structure of the


nomenon, and they must therefore be qualified as

polttical

terms that are themselves misleading in some ways. The state


tion is not a spedaf kind oflaw (like the law of war); ra ther, insofar a.s it

is a suspension of the juridical order itself. it defines 1aw>s threshold or

Jimit concept.
N: The historv of the term

( Reinach J88s, w9}, The institution of the

in the .Pnmch Constituent A$.Sembly's

cv
:i il authorityead1

must act in con cer l with

in which "all the

functions entrusted to the civll anthorit y for maintaining order and internai
pass to the miJl!arycommander, who exercise.<> them under his exclu
(ibid,), The decree referred only to militarystrongholds and

sive

ports, but with the law of w Fructldor Year 5, the Directory assimilated munic
in the interior with the strongholds and1 with the law of IS Fruc:tidor
of the same year,
tion from the wartime situation to which it was oribrinfl!ly
measure to cope with internal sedition and

be used as an extraordinary
djsorder1 thm:

from

one, 111 any case, it

real, or military1 state of siege to

fictitious, or

is Jmpor lant not to forget that the m od ern state of

cxcctJ t i,on is a creation of the dernocratic-revolutionary tradition and not the


absolutist one,
The idea of a snspemion of the constitution was JntrodtKi;'d for the first time
in the constitution of

Frimaire Ye.ar 8, Article 2 of which reads, "'In the case

of armed revolt or dlshnbances tha! would threaten the securityof the State, the
Jaw can. in the.

and for the time that it <ktenui.nes, suspend the rule of

the ronstitutJon, In such cases, this suspensl011 <:rln he pro visi onall y declared by
a decree of the government if the legil\lativc hody is in recess, provided that t.h is

convened as soon as possible by an article of the same decree." The city


or regwn in
is, on the one hand

was declared hors la cm1stitut-ion. Al tho ugh the paradigm


(in the st"'tc of 11iegc) the extension of the military author-

Wilrthne powers into the civil sphere) and on the other a suSpensi on of the
oonstitution (or of those wnst1Hltinnul norms that protect indivldualliherries),
in time the two modeL end up merging into il single juridic.d phenomenon that
we call the stale of<1XC<>Lioo.

fictitious

is instructive in thi6

hack to the French doctrJne tbat-in reference to Napoleon's


crce of December 24 tSu-provided. for the possibility of a state of siege that

N: The ex press i on full pnwct;; (p!rdm prmvoirs), which is s omet im es used to char
acterize the state of exception,

ref ers

to the exp<msion of the powers of the gov

not a city was actually under attack or

ernment, and in particular the confCn:al on the cxecutive of t he powi.-'t to issue

threatened by enemyforces, ''wh never circumstances reqt1ire g iving


more forces and more power to the military volice, without it

whkh was elaborated in that true and proper laboratory of modern pubJlc legal

!lle em.pcror could declare whether

or

decrees having the fon:::e oflll.w, [t d'riYE'S from the notion of plimit11dopote.trrtis,

i,
[i,

It
I:

''

H
I

Chapter One

l1atadigm of Government

terminology th{lt wa;; canon Jaw. The presupposition here is that the state of cx
enrnils. a n:tum to an original, pleromatk state in which the distinction
among the tlilferent powers (legislative, executive, etc.) has no t yet been pro

paradigm of the jurldical order come to light.

duced. As\ve will s ee, the state ofe-xception constitutes ruther a kenomaticstcttl':,

fOundly marks the evolution of the rnodern parliamentary regimes: the

an en:1ptine,;s

and the idea of an origlnary imlis1inction and fullness of

powvr m ust be co nsi dered a legal mythologeme analogOt!s tu the i dea of a statr.:
ofD<'{ure (and il is not by chance that i t was precisely Schmitt
to

this mvth ologeme),

Jn

any case,

tht. term

full powers

who had recourse

describes one of the

executive power's possible modes of action during the stare of exception, but i t

do\?s not ooindde with it


'

B'twecn 1934 and 1948, in th(: face of the c-ollapse of Europe's

democrades, the theory of the state of exoption (which had made a

1.5

moment of particular fortune, but h i.s signifi cant that this occurred

in the pseudomorphic form of a debate over s o- called constitutional

I,

dictatorship.
This term (which German jurists had already used to indicate
emergency r eccezionali] powers that Ar ti cl e 48 of the Weimar Constitu
. tion granted I he president ofthe Reich [Hugo Preuss: ReJ'cl"l!'etfasmll:gs
miiftige Diktatur J) was laken up
Watkins
Friedrich
we must also at

least mention the hook by the Swedish jurist Herbert Tingsten 1 Les p!etns
pendant et

Ia

Vv11ile these books are quite v<ded and as a whole

dependent on Schmitt's theory than a first

e_xceptlonal rneasure, but it also lets its own nature as the consti tut ive
Tingstt..n's analysis centers on an essential technkal problem that pro
delegation contained in the "full powers" laws mentioned above, and the

resulting extension of the executive's powers in td the legislative sphere


through the l:sswmce of decrees and measures, "By 'full powers Iaws' we
mean thoile laws by which an exception ally brood rcguJatory power is
granted to the executive; partkularJy the power to modify or abrogate
by decree the laws in force" (TingstenJ9341 13). BeuJSC laws of this na

first, isolated appeafance in 1921 with Schmitt'> hook Dictatorship) saw

sug-

nevcrthd.::ss equally important because they record tOr the

first time bow the dernocratic regimes were transformed bY the grad

ual expansion ofthe executive's pOwersduring the two world wars and,
more gener<'llly, by {he state of exception that had accompanied and fol
lowed those wars. They tire in some ways the heralds wl'lo announced
what we todayhave clearlybefore our eyesnamely) thar since '(the state
of exception ... has become the rule" (Benjarnin .1942, 697/2.57)} it not
only appears incteas.ingly as a technique of govemrnent rather than an

ture, which should be issued to cope with

circumstances of
'
necessity or emergency, conflict with the fundamental hierarcbv oflaw

and regulation in democratic ccmstitutlous and

to the execur qoverno I a lecisJative power that should rest exclusively with paruament, Tingsten seeks to exarnine the s ituat ion that arose in a series
SwitZ<!rland, Be!lgitun, the United States, England,
AuMria, arkl Germany) from the
expansion of executive [governattJentaliJ powers

\Vorld War One, when a state of

was declared or full powers Jaws issued in many of the warring


states (and even in neutral ones) like Switzerland). 111e book goes no
further than recording a largt nmnber of case histories; JHvcrtheless,
in the conclusion tbe author seerns to realize that although a temporary
and controlled usc of full power::; is theoretically compatible with demo
cratic con."'titntious, "a systematic and regular exercise of the institution
necessarily leads to the 'liCJUidatiod of democracy" (333), [n f<:ct, the
gradual erosion of the legislative powers of pmliament-...:wh ich today
is often limited to ratifying measures that the executive issnes through
d ecrees having the i(n:ce ofhnv "has since then become a common: prac
tice. From this perspective, 'Norld War One (and the years following

appear as a laboratory for testing and h o nin g the functional mcchaniHns


and <lpparatuses of I he stale of exception as a paraclig.m
One of the essential characteristics of the state of exception-the
sio.nal abolition of the dist1nction among
execufive,
dicial powers--here shows its

to become a

government.

Fr.iedrich's book makes: much more use than is apparent of Schmitt's

Otaptef Otte

The State ofExc.ep!inn as a Paradigm otGo-vetJtment

theory of dktatorship which is dismissed in a footnote as "a parti


san tract" (Priedrkh

[11}/tll 1950) 664). Schmitt's db;tjnction between

cmnnlissarial dictatorship an(L sovereign dictatorship reappears here

as

an opposition between constitutional dictatorshjp, which seeks to safe

guard the constituU.onal order, and unConstitutional di c tator shi p, whkh

leads to its overthrow. TI1e impossibility of det1ning and ov{Tcoming the


- forces that determine the transition from the first tO the second form of
dictatorship (which is precisely what happened) for example) in Ger"'
many) is the fundamental aporia

.Friedrich's book, as it is generally

of all theories of constitu tiona( dictatorship. All such theories remain


prisoner in the vicious drcle in which the emergency measures they
seck to justify in the name of defending the democratic constitution are
the same ones that lead to its ruin:

[4])

and that as such it is fraught with

dangers; nevcrtheless1 it is precisely the immanent necessity of consti

tmiona] dktatorsldp that he inten ds to demonstrate. nut as he makes


this attempt) he entangles himself in irresolvable contradictions. Indeed,
Schmitfs modd (which he judges to be "trai1-b1azing) if somewhat QC
c..asional)"' and which he seeks to correct

f14D. in which the distinction

between commis:saria1 dictatorship and sovereign dictatorship is Jlot


one of nature but of degree (with the decisive figure undoubtedly being
the latter) is not so easily overcome, Although Rossiter provides no
tfwer than eleven criteria for distinguihing constitutional dictatorship
from unconstitutional dktatorship, none of them is capable either of
defining a substantial difference be-tween the two or of ruling uui the

paSsage from. one to the other. The tact i s that the two essential crite

[T]here are no ultimate institutional safegt1ards available for insur


ing that emergencr powers be used for the purpose of preserving the
Constitution. Only the people's own determination to see them so
can make sure of that.... All in all the quasi-dictatorial
sions of rto(lern constitutional systerns, be they m-artial ru1e1 state of'
siege) or (onstil"utional emergency powers} fait to conform to an y ex_
acting standard of e ffective limitations upon a temporary concentra
tion of powers. Consequently, all these systems are liable to be trans
formed into totalitarian schcrncs if conditions become favorable to
it.

of constitutional government"

(584)

ria of absolute necessity and temporariness (which all the others come
down to i n

the lsl analysis) contradict what Rossiter knows pcrfecdy

well> that is} that the state of exception ha"l hy now become the rule:
"In the Atomic Age upon whkh the world i1:> now ent er ing, the use of
constitutional emergency powers rnay well become the rule and not the
exception')

(297); or as he says even more clearly at the end of the book,

"In describing th e emergency powers of the western democrades, this

book may have g.ven the impression that SU(.:h techniques of govern
ment as executive dictatorship, the delegation of legislative power) and
]awrnaking by adminjstrative det:,rree were purely transitory and tempo
rary in nature. Such an impression would be tHstinctly misleading.

J n Rossiter's book these apodas

into open contradictions.

The instruments of government depicted he-re as temporary 'crisis' ar

Unlike Tingsten and Friedrich, Rossiter cxpHcitJy seek to justify con ..

rangernents have in some countries, and may eventually in all countries,

stltuti(mal dictatorship through a broad histurkal examination. 'His

become lasting peacetime institutjons"

hypothesis here is that because the democratic regime, with its com-

came eight years after Benjamin's first fonnu1ation in the e ig h th the

balance of powers, is conceived to function under normal circum

sis on the concept of history, was undoubtedly accurate; hut the words

stances, 1'in time of crisis a democratic, constitutional go1-'ermnent must

that conclude the book so un d even more grotesque: ''No sacrifice is too

temporaril y (;e altered to whatever degree is necessary to overcome

atulrestorc no1mal conditions. 11)is alteration invariably involves gov

(313),

This prediction, which

for our democracy, least of all the temporary sacrifice of democ


racy itself "

(:;14).

ernment of a stronger character; that is, the government wiU have more
nghts" ( Rossiter

1948, 5).

Ro<>ite r is aware

1.6 An examin ati on of how the state of exception is situated in the

dictatorship (that is, the stale of exception) has, i n

traditions of the western states reveals a division- dear in principle, but

fact, become a paradigm of government C1a well-cs:labJished principle

hazier in fact-bctween orders that regu.latc the state of excevtion in the

Chapter One

text of the

ThC< State of Exceptinn as a P:nH!lgm of Government

constitution or

tl1e prol:>lcm explicitly.


ern state

Revolution) and Ger

Engla nd , and the United


between writers who
favor a constitntionaJ or legislative provisio n fOr the state of exce-p tion
and oth<rs (Carl Schmitt tOremost among them) who unrese rvt:dly crit
icize the pretense oi re gulating by law what by definition cannot he put
in norm< [normato]. Though on the level of the for mal constitution
the distinction is undoubtedly important {insofar as it presupposes, in
tJ1e latter case, that acts performed by the government outside of or in
conOkt w ith the law can theoretically be considered illeg al and must
therefme be rectified by a special "bill of i n de m nity" ) , on t he level of
the matrial constitution something like a state of exception exists in
all t he , ahOve-rnentioned orders) and the history of the in stitu tion, at
least since VVorld War One, shows that its de velopment is independent
of i ts constitutional or legisla tive formalization, '11ms} in the Weimar
Republic !where Ar ticle 48 of the constitution regulated the powers of
the president of the Reich whenever the
offentliche Sicherheit und Ordnung) were threatened),
tion perfOrmed a surely more decisive function than in
where the
institution wa s not explicitly provided for, or Jn France, which re!;uln1ted
it by a law and which also frequently had recourse to the .!tat de siee and
dt.!cree.
p roblem of the sta te of exception presents dear analot,ries to
of resistance . It has been much debated, particularly
during constituent <1sscmblies, whether the right of re sista nce should be
included in the text of the c onst itution . The draft of the current Ital
ian Constitution induded an ar ti cle that read, ''VVh:;n the pubJk pow
ers violate tlw ri ghts and fundamental libertie s g uara n te Nl by the Con
stitution) resist<:mc lo oppressjon is a right and a Juty of the citjzen."
This proposU1 whkh foll owed a suggestion by Giuseppe Dossetti, one
of the most prestigirms of the leading Catholic ligures, met with sharp
opposition. Over the course of the debate the opinion that it was im
possible to legally regulate something that, by its nature, was removed

11

from the sphere of positive law prevailed, and the artide was not ap
proved. However, in the Constitution ofthe German Fede ral Republic
there is an article (Article 20) th at uneqnivoc;; lly l egalizes the right of re
sistance, sta ting that "against anyone who attempts to aboli sh that order
[the democratic constitution]> all Germans hwe a r ight of resistance if
no other renwdiLs are possible,"
The opposing argmnents h.re are exactly symmetrical to the ones
that divide advocates of legalizing the state of exception in the text of
the constitution or a specal law and those jurists who believe its nor
mative re gulation to be entirely inappropriate. lt is certain, in any case,
omisswn
that if resistance YVere to become a
of which could be
positing i tsdf as an absolutely untouchable
but the citizens' political choices would aJso end up being determined
The fact is that in both the
byjuridicaJ norms
of resistance and the stat::
question of the juridical signi!J.catJCe
in itselfextr aj uridkaL 'IWo theses are at odds here: One asserts that law
must co incide with the no r m ) and the other holJs that the sphere of
the two p o sition:} agree
law exceeds the n orm . But in the last
in ruling out the cxbtence of a sphere ofhnmau actlon that is entirely
removed from law.
A BRIEF HISTORY OF THE $TATE OF

EXCP.P'fll)'(>l,

W<: h<lVC

<!l rel'\dy

seen

how the state o{ siege htrd its origin in Fran ce during the R:volutio:n. After being
est-ablished with the Constituent Assembly's decret; of July 8, 1.791, it acquired
its proper physiognomy as

Jfr!t de siCge fictif or fitat de siCgc Jmlitique wlth the

Directorial law of August .t.7> 1797, anJ, finally, with N::tpoleon's decree of De
cember 24, 181.1.. The idea of a susptmsion of the constitution (of the ''rule of
the constitution") h ad instead been

introduced,

as

we have also :teen, by the

Constitution of 22 Prima ire Year 8. Article 14 of the Cltartc of 1814 granted the
sovereign the power to "make the reuulations and ordinances neo::.s::;arv for the

execution of the laws and the

of the Stare"; because of !he vagueness

of the formula, Chateaubr1and observed "that it is

!llat one fine morn

i ng tl1e whole Charte wHl be forfeited for the benefit ofArtide 14," The &tate
wail expressly roentloned in the
stated that 11 could

Actc ruftliti(l!Jcf to the Constitution of


dedared with a l aw, Since then,

Chapter One

The State of'Exceptio11 ,,.:a Paradigtn of Government

moments of constitutional crisis in France over the course of the nineteenth

1931, 18),

and twentieth centuries have been marked by legislation on the stal:.c

l:Xe<:uti vc [governativo]

After the fall of the July Monarc hy, a decree by the C:onstitucnt Asembly on

regular practice iu the European democ-rades.

Jun e 24, t3A8, put Paris 1n a st ate of siege and assigned (Jeneral Cavaign<1c the

In any <:ase, it was during Lhis period tha! t'x.:epttomd legislation by


decree (which is now pel'feclly f<:unillar to us) became a

Predictably, the expansion of the executive's poweJs into the legislative

task of rest oring order in lhe city. f'_,onsequently, an art ide was included in the

continuerl after the end of hos.tilities, and it is signific ant thal

new constitution of November 4, 1848, establishing that the oc-casions, fMms,

gency now ceded its place to econ omic emergency (with a n

of the !>late of siege would be firmly set by a law. Ftom this moment

and

on, the dominant principle in the French tradition (though,

a;.;

we will see, not

withotJt exceptions) has been that the power to suspend the laws

C<Hl

belong

to the same power that produces them, that is, parliamen t (ln coutra11t to
the German tratlitlon, whkh entrusted this power to the head of;tatc). T he law
of August \,.1, 1849 (which was partially restricted later by the law of A
. .pril .1, 1878),

13

emer

tinn between war and economics). rn Janu ary 1924, at a time of serious crisis
thai threatened the st<tbiHty of the frrlnc, the I)oincarC. governme-nt asked for
powers over financial matters. After a hitter debate, in which the, Of'l "'siti:on

pointtd out that this was tantamount to parliament renonm.:ing its own runstitutionai powers, the law

v1as

on March 22, with a four-month limit

on ttu: gowrnment!s s.pedat powers. A nalogou s measures were

to

conSe quently establihed that a political state of siege could be declared by par
liament (or, additionally, by the head of state) in the case of irnminenl danger

decrees "having furce of law" in order to avoid the devaluation of the franc.

to external or intcm:1l S('\:udty. Napoleon Ill had recourse sever a( timzs to this

The ormositlon from the left, led bv Uon Bl um , stronl.Uv ouposed this "'fascist"

law ahd, one\" instnlled in power, he transferred, in lhe constitution of January

practk:e, bnt it i significant that once the l.eft took power with the

1852, the exclusive power tn proclaim a state of siege to the head of state. The

]lront, it askfd parliament in June 1937 for fuli po wers jn orde r to de\'alue the

FrancoPru:-:sian \tV;Ir and the insurrection of the Commune coil'lt:ided with an

unprecedented g e ne ralization of the state of exception, whid1 was proclaimed in

franc, establish exchange c ontrol, and impose new taxes . i\s has hcr:n observed
(Hnssitcr 1948, 123), !.his meant thar the new

forty dc partmen ls and lasted in some of them until 1876. On thebasis of these

ex:pel'i<Jlces, and ai<"t M<l(Mahon's

hli!ed

c oup d'etat in May 1877, lhe Jaw of

1849 was modified to establish that a state of siege o:mld he dedared only with
a law (or, if the Cham her of Deputies was not in session, by the head of state,
who was then ohligaled to convl;'nt> parliament within two davs) in the event of
''imminent

r esulting from

3, 1878, Art

1L

war or armed insurredion" (law of

ministries wen: t:ntmsted to nonsocialists. A nd on Aprilw, 1938, Edouard Dal

adler reques ted and obtnine<l from parliament exceptiM1t1l powers to legislate by
decree in order to cope with both tht: threat ofNa'li Germany i'lnd tht: e(:onomk
c.risis. It can therdOrc he said that until the end of the '111ird Hepnblic "th

WorM War Om .<:olndded with -a permanent tae of exception in Lbe ma

normal procedures. of parliamentary democracy were in a $!ale of suspension"

914, President Poincare issued a

(124). 'Vv11en we sludy lhe birth ofthf' so-called dictatorinl regimes in11aly and

of the \wrring counlries. On A11g ust z,

decree that put the entire cotnttry in a state

Germany, jt J,q important ni1t to forge t this concurrent process that transftrmed

vened into

the democratic constitutions between the two world wars. Undel' the pressure

until October12, 1919. Alt.hough Lh:.:activityofparliament, which was suspended

the first six months of the war, recommenced in Jan uary


the laws

1915, many of

were, in truth, pure anJ simple delegations of legislative power

of the paradigm of the state of exception, the entire poliiicocomtr itutiona11ife


ofW('s' tern sodcties began gradually to assume

new form, whkh has


.

on\y today renchcd its full development. In Decemher 1939, after the outbreak

to the t'.:xccudve, such as the law ofFcbnwry 10, 1918, which granted th<-: govern

of t h e war, the Dah1dier gove_mment obtained the power lo take hy decree aU

ment an all but absolute power to regulate. by decree the producti-on m1d trade

measures necessary to ensure the defense of the nation. Parl iamen! remained

of foodstufts. As

ha." observed, in this way the executive power was

transformed intt) a lcgis11tive organ in the material sense of the terrn'{'l'in


. gstcn

in session (except when it was suspen ded for a month in order to de-Drive the
communi st parh;nncntnrians of their immunity), but aU legislative

1-1

Chapter One

TheState of Exception a& a f'orndigm ofGovernm:nt

firmly iu tbe hands of the executive.

time Marshal PCtain assumed power,

the French riarli;:unent was a shadow of itself. Nevrthdess, the Constitutional

15

powers remained so i n determinate that n ot only

ident's

did theo rists regularly use the phrase "presidential dictatorship" in reference to
Artide 4B, l.nll in 1925 Schmitt could write thal "no conslit.utiort on earth had so

was partiaUv oc,;up,id

by the German

t z a co n p d'etat as did the Weimar Constitution" (Schmitt 19.95, 25).

Save for a rdative pause between 19_2-5 and .19 29 , the governments of the Re

In the present constitution, the state of

is

by Artide 16,

which De Gaulle had proposed, The artide e:,;lablishes that the president of the
lhe indept;ndence of the Natkm, lhe

e asily cga i ed

of its trritory,

or

th{ ewcu(io.n

of its international commitments are setlou,qly ami im ri1 cdiatelY threatened and

functioning of the constiru.tionaf plJbHC powers L'l interrupted." .In

1961, during the Algerian crisis, De Gmll.e had recourse to Article 16 even

th e functioni ng of lht pu hl ic puwers h ad no t been interrupt ed. Since

1 hat time, Article 16 has never a gain been invoked, but1 in conformity with a

-conlinuing tendency i n all of the.Weslern democracies, the declaration of the

state of exception has gradually been replaced by an unprecedented generaliza


tion of tbe paradigm of security M the normal t echnique of government

public, eginning with Brtlning's rrwdc con tin ual usc of Arlide 4&, proclaiming
a state of exn:ption and i1>suing emergency decrees \ln more than two hundred

and fifty(KCasionS-; among oth(>:f things, they employed it to impri son thomands
of communist militants and to set up

tribunals ;mthorizeJ to pronounce

capltal scnteilO'S, On several occ asion s , pnrticubrlyln October 192.1, the govern
ment had recourse- to Anicle 48 to
It is wen known that lhc
der a regime of the state ofmcp1:io11;
id.ential dictatorShip
ln JulvHno,

parliament been function


Bri:lning governrrJeut was put in

The history of Article 48 of the Weimar Constitution is so tightJy woven in h)

48 and dissolved the

Hirler's rise to power without first analyting the uses and abuses of this artide

than twelve month s in aU. while

the history of Germany between the wars that it i!l impossible to undct1>tmd

in th e ye:J rs hetwecn 1919 and 1933. lts immt'diate precedent "\<roS Article 68 of the

Bismarckian Constitution, which, in ca?tes where

ened in 1 he tenitory of the Reich,"' gnml ed the emperor the power to dedare
a part of the Reic.h to be i n a state of Wdf

wh ose cond iti<m<

Hmit<Hionfl. tt:1Howed !hose sel forth in the Prussian law of.Tune 4, 1B5J, .:on
the state of siege. Amid the disorder and riotin;; that followed th e end

Assembly th at was to vote on the

of the war, the deputies


constituti9n {assisted
out) indudcd an article

among whom the name

[ nheblirir j

seven times for no longer

fluctuating coalition of Social Democrats and


t!wn answered only to the

centrists

pre:."ident of ihc Reich. In 19321 Hindenhurg-rcdcctcd preskknt over Hitler


and named the centrist von Papen to

his post. On June 4, the

dissol ved and never reconvened until the

advent ofNazism. On July 20, a state ofexcep tio n was vrodaimed in the Pfussian
territory, Hnd von PHpen was narn ed Reich Commissioner j()r Prussia-ousting
Otto Braun's Soci.al Dcmoaatic government.

p residency wa. justified by Schmitt on a constitutional level hj' Lhe idea that the

and

presiden t acted as Jh( "guardian of the constitittion"' (Schmitt 1931); but lhe end

disturbed or thrcatened in the German

of the V-/elmar Republic clearly demonstrates lJ1at, on the contrary, a "protected.

the- president ofthe Reich may take the meJ.Slucs necessary to reestablish

democracy"' is not a democracy at all1 and that the pantdigm of constitutional

order, with the help .of the armed f(m:cs if required . 1b this

dictatorship fu nctions ins!ead as a tra mdtinn:1l nha::.e that l<."ads inevJtahlv to the

or partially suspend the fundamental rights

establishment of a totalitarian

[ Grundrechtej

established in Artidcs 1.14, 115, 117, 118) 123, 12.41 and 153." The article added that
a

From that moment on, G:rm<my in fact ceased

to h e a parliamentary republic. Parliament met

The state of exception in which Germany found itselfduring the Hindenburg

the tm:>l<!cnt ofth Rekh extremely broad

emergcn.:y !twc:im;alij powers. TIH' texl" of Artide 48 reads, "If


order are seriously

mw

minori ty, but

granted him recourse to Article

did not resig1l. Instead, President

law would specify i.n detait the conditions and limitations under which this

prc$idzntial power was to be exercised. Since that luw wus neverpassed) the pres-

Given these prn:cden ts, it is undlrstandahJe thal the constitution of the Fed
Repub1i.c diJ not mention the state

Neverthde.ss, on June 24,

19M, the "'gra n d c.oalition" ofChrls1i:m Democrats and Sodal Democr<1ts

16

Chapttr Oc

11Ie State of Exception as a Paradigm of Goverttlll('llt

a Jaw fOr the amendment ofthe constitutfon ( Gesetz z11r Ergiinzungdes Gnmdge

setzes) lhat reintroduflecl the state


m"Ces..<>ity,'' innere Notstand). However,

{dellnerl as the "state of internal

with an unin tended iron;-; for the first

time-Jli the history ,,f the institution, the prodamation

wa provided fOr not sim ply to

of the :.tate of exception

publi c order and se<:urlty, hut to de

fend the lib:rnl- democratic constjtution." By this point, prot.octcd democracy

had become the rule.

unlimited pow<-r to take aH measures necessary to guarantee the security, in

and neutrality of Switzerland." This tmunal act---by virtue of which a

non-warring state granted powers to the executive that were even vaster and
vaguer than those received by the governmenb of wuntries dinx:tly involved in
the war---is of Jntcrrst because o( the deb-ates

i.t provoked both

in the assem-

i.tself and in the Swiss Federal Court when the cltlzens objected that th ad

was unconstitutionaL The tenacity with which on this occasion the Swiss juris Is
(nearly thirtyy\tH5 ahead ofthe th eoris1s ofconstitutional dictatorship)

(like Waldkirch and Burckhardt) to derive the legltitnKY of the state of excep

tion from thetext of the constitution itself (specificall.y, Article 2-, whlch read,
"the aim of the ConfCderation is to ensure the independence of the fatherland

against the foreigner !<md] to maintain internal rmnquility and order"' ), or (like

Hoerni and FfeirH:T) to grounJ the

ent in lht;vcry <'Xistenc\: of the State," or

His) in a juridkal lacuna that the

exceptional provisions must tlll1 shows that the theory of the state of exception
is by no me-<ms the exdu?ivc

of the a.ntidemncratk tradition.

ofthe s1ate ofexception. Nevertheless,


stale ofsiege many times: in Palermo and tbeSld!ian provinces

to

in 1M2 and tMti, in N<lpl<:s in 1R62, in Sid!y and .nnicianfl in 1894, and i n N<1p!cs
and Milan in

l891),

where tJ1e repress1on of the disturbances was particularly

bloody and provoked bitter debates in parliament. The declaration of a st<tle


Calabria on

December 2A, 1908 is only apparently a different situation. Not only was the
state ofsiege ultimatdy proclaimed )r reasons of public order-that is, to $Up
press the robberies aml loo ting prov<'Jkcd by the dism>ter-but from a thCoretical
standpoint, it is also significant. that lhest acts fUrnished the occasion that al
l owed Santi Roma.n:n and other Italian jurists to elaborate the thesis (whi<:h we
examine in some detoliJ later) thnt necessity is the ptimaty source of!aw.
In ead1 of lhese cases, the state of siege

was

pr<Khlin'ICd

decree

that while nnl n:]niring parliamentnry ratifkation, was nevertheless alwa;'$ ap


provd by parliament, as were other emergency decrees not related to the state
(in 192:3 anJ l92:4severnl thou.snnd

issued in the

pneccdiJ1g Yi'ars were thm converted into law). 1n 1;'J.6 the Fascist

had a

law issued that expres.sly regulated the matter of the law-decrees. Article 3 of
this hlw cst<blished that, upon delihMtion of t he mtmdl of ministers, ''norms
forcr onaw" could be issued hy royal decree "( r) when the government
delegated to do sn by :.1 law within the limits of the delegation, and ( 2) in ex>
traordinary situations, in which it is reqnired for ft>(l SOns of urgent :md <1bsolutc
necessi t)'. The .i udgmenl concerning necessity and urgency is not subj ect to any
ovenight other than parli ament's political oversight." The decre-es provided for
in the second <:lanse h<Jd to be presented to parlinm<nt for convers-ion into law;

In Italy the
interest with reg< ml lo

emergen.;y cxecuilvc

Lovcntatl'i]

(the so-called law-dccmcs).


process {which W:'lS aloo oo.:nrringto
by which the law .decree

from

other European states)


tl

derogatory and exceptionat instru

ment for nonnative production to an ordinary sourr.:e for the production of

1981, 1)6),

but parliament's total loss of autonomy during the Fascist regime rendered this
condition .uperlluous.

functioned as a true and proper juridko-pnlit!;;:al labnratory for orga nh:ing the

law" (Fresa

Altwrrin Statute (Hke the current RepubJkan Constitution ) made no mention

on the occasion of the earthquake of Messim and

Ori August 31 1914, the Swiss federal Assemhiy granteJ lhe Federal Council "the

l7

But this also means that nne of the essential parad igms

[gov
crnamcntalc] was chiborated precisely by a state whose governrnents were often

through which democr(l(:y is transformed from parliilmentaryto executive

imst.able. In any case, it is in this context that the emergency decree's pertinence

to the problernatic sphere of the state of excepti on comes dearly into view. The

Al though the J<asds1 governments" abuse of crnergen(y decrees was so great


that in

1939 the regime itself felt

it necessary to Jimit their re;:u:J1, Article 77 of

the Republican Constitution established with singular con tinuitv that "in c:x>
traordinary situations of neces;;ity and emergenq"'
"nrovi siona] measures having force of law," which had to
day to pnr!iammt and which went out of effe<t
sixty dav.s of their issuance.
Tt is wd! known that sim:e then the
the rule

if not converted into law within

18

Chaplcr One

The State of Exception as a Paradigm of Govermnent

decrees been issued in moments of poli tl (al crisis, thus


the con
stitutional principk that th e rights of the citizens r:an be limited only 1Jy law

(see, for example, tl:e decrees issued for the repression of terrorism : the law
d ecree of !vhuch 28, 1978, n, 59) co nverted into the law of May 21 1978, n. 191

as welL Indeed , immedia tely

c-xt"'<'l1tive [goPcrnamenta1i] apparatuses


after wai W<lS d.r.dared, the govermm:nt asked

verted into the lm.v

of l"ehrwary 6, 1980, 11. 15), but law4decrees uow constitul"e


that they have hcen described

as "bi lls strt,'11.gthened by guarantee d


that the demo<:raric

(Presa

19!h, 152). This means

of the s eparation of p owers has tod.:1y mllapscd

and that the executive power h a;;; in fact, at least

tive power. Parliament is no

absorbed the legisla -

legislative body that hold<> the

exclusive power to bind the citizens

to approve o. series of

prep;m;d by the relevan t ministers) and


important of thesc acts was

! the so-c;llrd Moro Law], and th e law-decree of December 15, 1979, n. 625, con

the norma! iOrm of legislation to such a

granted the government quite vast powcrs to


also

provided for serio us limitations on the fundamen tal rights of the citizens

(in partic1dar, gran1ing mi titary tribunals jurisdiction over civilians) , The activ

ity of parliament saw a significant

for the entire durntion of the war, just

as in F:ance. And in England too this process we11t beyon d lhe emergency of
tht war,_ f1S .is shown by the approvalon October 29, 1920, in a tirne of strikes
and social tensions-of the Emergency Powers Act J n d<:>cd, Arlide

!he cxtwtive power. In a techn i cal sense, the Italian

l9

1 of the act

t.iated. i hat

Republic is no longer pairliameint;uy but executive" [governamcntaleJ. And ll j


this transformatJon ofthcwnstitutiotJal order ( whidt is

today un dcrv.-:ay to

in all the Western d em<>cracies)

wdl kn own to .iurists and politicians, it has rernained

citizen,'<, At th e very moment when

it would Hke to

to dHfercnt traditions a.nd udtures, lht!

I i]f at any time it appears to His Majesty that any action has been taken or is
Jmmediately threatened by any persons or body of petsons of such a nature
and on so cx len sive u scale as to be cal culated , by interfering with the supply

anrl distrihution of food, water, fud, or light, or with the means of locomo
tion, to dep rive the

tealize that it has entirely lost its .-"anon.

or any substanti al portion of lhe cmnmu

of the e"srntlals of life. His Majesty may, by pmdJmation (hereinafter


prodmrlation ofcrr<er,gerrcy), dtda re that a stJte ofemergency

The only legal apparatus in England that is comparab1e to the Fn:nch

tat de
sieg? goes by the term maJ"tial !aw; but this coucept is so vague that it has been
rightly described as an "unl ucky name for th e justification hy the cmnmon law

Artide 2 of !he law gave HL.,

of acts done by necessity for the defence of the Commonwealth when there

and to grant the executive th e

is war within the realm" (Rossiter 1948, 142), This, hnwev(:r, docs not mean
that somet h ing like a stat< of except ion could not exist. In tbe Mutiny Acts)

the Crown's power to dedare martial law was generally conJined to times of
war; nevertheless, it m.'c.essarily entailed sometimes serious t:onsequences for

exists.
i n Council the power m i ssue regulati o ns
and duties , . , necessary tOr the prescr("courts ofsnmmaryjuris-

va110IJ ofthe peace," and it introduced


dktion") for offenders..

: principle of

not exceed three months


the state of exception

had been

Jntrodnccd into

law.

the civlliam who found themselves factually involved in Lhe armed repression.
martial law from the miUtary tribunals and
to soldiers, in order to conceive
of il as a purdy fftctual

and draw it close.r to th state of exception:

lhe name it hea rs, martial law is ileither a right nor a law in this sense,
but rath er a proceedin g guided

necessity ofachieving a {;crtain

end" (Schmitl i92J, 171.),


World War

Out.

: ofexet"ption in

The place-bo th logical and pn!gn>atic-

the American com.titution ls in the dialectic between tl1c pow<..'T.


and thmc of Con gress. This dialectic has

taken .shape historically (and in an

exe1nplary way already begin ning with th e Civil \'Val')


auth ority

;'!S i1

conflict over supreme

ln :m em ergency sit11ation; or, jn SduniHiun 'lerms (and this is su rely

significant in a cou n try considered to be th e cradk of dem()cracy), as a conflict


a dedsjve role i n the gencraliz.'ltion of exceptional

over sovereign decision.

20

Clwph:r One

The Stalt> of Exception :as a Paradigm Q fGovcrnmeElt

21

The textual hasis of lhe conflict iies first of all in Article 1 of the constitution,

the actions of the ptesident, as it did on Au gust 6,

which estahlihes that ''[t]he Privilege of the Writ of Habt>as Corpus shaU not

t861, Strengthened by this <1pproval, on September n, 1862, the president pro

he suspended) unless when in Cases of Rebellion or Invasion the

drimed the emancipation ofthi'i' slaves ()TJ his authority alone and, two days later,

may require iC1 but does not speci fy which authority has the iurisdiction
.
dde on the suspension (even thou gh prevalling opinior1 and tbe con text of the

generalized the siate of exception tbrou;hout the entire territory of the United

States, authotiziug the arrtr-t and trial before i:Ourts martial of ''all Rebels and

passage itselflead one to assume that tbe dauHt is dinx:t,:d at Congress and not

Insurgents, their aiJ.ers and abettors within the United States, and all persons

the prtsidenl), The second point ofconflict lies in the relation betwe(11 annthcr

discour aging volunteer enlistments, tesistlng militia drafts, or

passage of Arlklc 1 (whicll dcdares tbat: the powel' to declare war and to raise

loyaJ piactke, a fforrling aid and mmfort to Rebels against the au tho rity

and suppott the army and navy rests with Congrer>s) and Article::>, which states

UnitN States." By thls point, the president of1he United. States was the holder

thai 1'(t]he Pn:sident sha!l be Commander in Chiefof the Atmyand Navy of tbe

of the

United States ."

decision on tbe state of exception.

At-umling to American historians, during World War One President Wood

Both of these problems reach their critical threshold with the Civil '\Var

row Wilson persona lly assumed cveu broader powers than those Abraham Lin

creed th<1t an army ofseventy fivc thous<1nd men was to be raised and C\lnVened

C.ongrcss, as Lincoln had Jone, Wilson prefened ead1 time to have the powers

{18(n-,t865), Acting counter to the tcxl ofArticle h on April 15, 1861, Lincoln de

coln had cla.lmed. It is, however, necessary to specify that instead of ig11 oring

a special session of Cogress for J u ly 4 Jn the ten weeks that passed betw1-;en

in question delegated to him by Congress. ln this regard, his practice of gov-

April 15 and Jufy 4, lincoln i n fact acted as an absolute dictator (for this reason,

emmCY:t is doser to th{ one that would prevaii Jn Europe in the same years, or

in his hook Dictatorship, Schmitt

to the current one, which instead of d eclari ng the state of exception prefers to

can

refer to it as a

example of rom

mis.'iarla1 dictatorship: see 1921, 136}. On Apdl 27, with a technically even more

have exceptional laws issued. l n an; case, from 1917 to J'iHS,

pend the writ of habeas corpus whenever he deemed it necessary along milltary

approved

the Espionage Act of June 1917 to the Overman Act ofMa;

significant de:ision, he authorized the General in Chief of the Army to sus


1918) that

president wmpJett:: control over the admi nistration of the

line. between washington and Philadelphia, where there had been disturbances.

t:mmtry and not only prohibited disloy<1l a ctivities (such as collaboration with

Furthermore, thl:' president's autonomy in decid ing on extraordinary i:neasures

the enemy mid the diffusion offalse reports), but even inade it a crime to "will

continued even after Congn:ss >;..;as conveued (thus, on February 14, 1862, Lin
(Oln imposed censorship of the ffi<li1 .and ;tuthorizcd the rn:rest and detention in
mnitary prisons of penums suspedcd of "disloyal and treasoitable pnlctices").
In the socech he delivered to Congress when it was finally cmwened on July
Justified his act1ons as the holder of a supreme power to

utter, pr int) write, or publish any disloyt l, profan e, scurrilous, or abusive


l.anguagt.: about the form of government of th' United St ates:'
Because the sovereign power of the ptesident is essentially grounded in the
emergency linked to a state of war, overthe course oft he twentieth ccrltuM:hc
metaphor of war be(omcs an integral purt o( the t"tresi dential political YO(abu
lary whenc'Ver dedslmls <;onsidered to be ofvitdl importance are hdng impo.scd.

declared, the mt>asures he had adopted had been taken "under what appeared
to be a popular demand and' a public
would

Jn the certainty that Congress

them. They were based on the conviction that even fundamental

Thus, in 1933, Franklin D. Roosevelt was a ble to assu me extraordinary powers


to cope with the Great Dcpr<.ssion

presenting his actions as those of a com-

mander durine: a military campaign:

la\V could be violated if the vety existence of the union and the juridical order
were at stake ("Are all the laws

but one to go unexecuted, tmd the Government

to pieces lest t.l1at one be violated ?" See


It is obvious that in

148, 229},

wartime situa tion the ccmfJict between the presiden t

I assume unht.:sitatingly the leadership of this great nrmy ofour peopk dedf.
C<lted to a disciplined atta(k upon our common problems.

1 am prepared

under my constitutional duty to recomm end the m<'aslm!s that a stricken

and Congress is essentiaUy theoreticaL The fa:t is that <lthough Congress was

Na tion in th midst o f <1 stricken world may require.

perfectly aware that the. constitutional jurisdictions had been transgressed, i t

that the Congress shall fa i! to take [the necessary measures! and in the event

But in lhc event

22

Tbc State of Exception as a Paradigm of Government

Chaptu OM

23

es;;enuany p otrtlcal , or in any case ex-

that tbe national emergency is still critical, I shall not evade the dear conr.se
of duty thHt will then confront me. I shall ask the Congress for the one re

trajuridkal, phenomenon. tunong

were ln fact invaded hy a foreign foe. {Ioosevelt 193B,

as an auton o mous source of Inw1 while others (such as Hoerni1 Rand

maining instnllut:nt to meet the crisiroad Execu tive power to wage war
against th emergency, as great as the power that would be g.iven to rne if we

14""15)

as Santi Ro-

some

mano, Hauriou1 and Mortati) unden;tand the slate of t.:xccption to be

an integral part of positi ve law bt::cause the necessity that grounds it acls
letti) and Rossiter) conceive of it as the state's subj ective ( natural or

that, from the constitutiona l stundpoint, the New Deal

ms realized by

to 1be president (throu gh a >cries of statutes cu[mi


Act of Jnne 16) '1933) an u nlimi ted

Jn the National

powt:r to

and control every aspect c)f th e economic hfr of the country-a fact
that is in nerfect contOnn ity with the al ready mentioned parallelism between

errter,gern:s that char<cterizes the politics of the

twen

The onlhn'ak of World War "IWo extended these powers with the prodama

tiOI: ofa "limited' nation al

1939, which became u n

l i rnited 011 May 27, 1941. On St"ptcmber 7. 19.12, wh ile requesting that Congress
rcpea[ a J11w con cerning economic matters, the preside11t renewed his daim to

th: eJncrg('ncy: "In the evx.'nt that the Congress


adequately, I shall accept the responsibility,

wsted in me to accomplish the defeat of our enemies in any part of the world
where our OWil safety- demands such defeat" (Rossiter 194 268-69). The most

(all the more seriotm bec::msc of hs

racial motivation) occurred on Febru ary 19, 1942, with

the in1crnmen t of sev


enty thousand American citizens of Japanese descent who nsidcd on the Wt>st
Coast (along with tOrty thousand J apan ese citizens who lived and v.rorked there).
President Bu:>h's decision to refer to himself consta:n!ly

der in C:hkf of the Army" after September u,

as

(such as Biscan.tti, BaUado.re-PaHieri, a n d Carre de Mal berg) instead


consider lhc state of ex:ception and th e n ecessi t y that grounds it to be
essentially extrnj uri.dknl, de facto elements evert though they may have
consequences in the sphere of l aw. Julius Hatschek has summarized t he

vadous pm ltions i n the contrast between an objekti e Notstandstheorie,


according to which every act perfor med outside of or in conflict w i th
the law in a-state of necessity is contrary to law and, as such, is legally
chargeable; and a .subjektive NotstandstheDrie, according to which emer"

gency I eccezionnli] powers are grounded in a constitutional or p re-con


stitutional (natural) righe1 of the sh1te (Hats<.:hek 1923, 158ff.), regarding

1-vhich good 6ti t h is enough to guarantee immunity.


The simple topographical opposition (inside/outside) imp licit in

om , , . be sure th at I haJJ not

S{X'<:t<Kl.tlar violation of dvil dghts

constltutional) right to its own preservation . Those in the tatter group

the "Cornman-.

200J, must be considered in the


context oflhis p residenti al daim to sovereign p owers in emergency sit11ations.
lf, a:> we he seen, the assumption of this titl entails a direct refere't1ce to the

state of exception, then Bush is -attemptin g to prodnce a situation in

which the

en1ergency becomes the rule:) and the verr distin{ti-on helwcen pean an d war
(and beh\'een t(Jreh;n and civil war) becmnes impossible.

these theories_ s<.cms insuffident to acco unt for the ph(nomcnon that

it should ex:plain. If tbe state


or p:artia!)

of the

characteristic property i:; a


order1 how can such a sus

pension still be contain ed within it? IIow can an anomie he inscribed


within the ju ridi cal order? And if the state of

is inste-Jd

a de facto situation, and is as such u nrelated or contrary to law1 how i s

i t possible f()r tbc order t o contain a lac.una precisely when: the decisive
situation is concerned? And what is

the mean i ng of thJs lac una?

ln lru th1 the state of


the juridical ord er, and the

is neither external nor internal to

of defi n ing it concerns p recisely

a threshold, or a zone of indifference, where inside and oursi<le do not

exclude each other but rather bl u r with each other. 'l1Je suspen5jon of

the n o rm does not mean its aboHtion, and th e zone of anomie that it
cstahlishes 1& no t (or at least claims not to be} unn:hlit'{i to

1.8

order. llcnce the in terest of those theories that, like Schmitt's, compli

tion within the suhere of the iuridkal order and those who consider it

lation, in which the very limit of the juridic(!] order is at issue. Jn any

The differences i n the legal traditions correspon d in scholarship


to th e divisJon bcnveen those who seek ttJ include the state of excep

cate the top ograph ical opposition into a more complex topological re

24

Th<:- Ste of Ex.;eptlon as a P<wadigm (If Goventroent

Chapter One

case to understand the problem of the state of excepti on, one ntust first

and comments on this princip le

correctly determine its locaJization (or illocalization ). As we will

power to grant

conflict over the state of exception presents itself essen1'ially

6: utum ei qui subditur fegi;

see, the
as a dispute

over its proper locus;


1.9

25

in relatio n to the sovereign>s

fiom the law (Prima secundae, q. 96


verfJa

art.

agere fwhether one

who is subject to law m ay act against the letter of the


1f ob serving the letter ofthe law doe& n ot ent a il in: irnmediate

A rerurrcnt oplnion posits the concept of necessi ty as the fOunda

that must he dealt with at once, it ls not i n the power of any man to

Ption. According to a tenaciously repealed La t i.n

tion of the state of exce

(a history of the adagia's

function in legal Hterature ha::;


11011 hUbetj ''ncessity has no law,')

is interpreted in two opposing ways: necessity doc:s Iwt recognize


creates its own law"

any law" and

cases, the theory of the state

(neccssite fait loi). In both

is wholl y reduced to t he theory

of the status necessitatis,. so that a judgment concerning the existence of


tht la tter resolves the question

legit imacy of the fonner.

Therefore, any discussion of the structure and meaning of the state of

cm.cept o f nece>sity.
non haiJet was for4
The prlnciplc according to which necessltas
mula ted in Grati an1S Decretum. I t appears there two times: tkt in the
gloss and then in the text. The
(whkh refers to a pas...;;age in which
Gratian limits himself to
that "m:flny things are done
of the

exception first requ ires a n

against the rule out of

dist. 48!) appea rs to a ttribllte to

the p ower to render the illicit

licitum. in lege, necessitas facit licitum. Item nr.cessitas legem non habet flf
something is done out of necessity,

it is done licitly since what is not

Likewise necessity has no lawJ ). But the

sense in which t his should be taken is made clearer by a later passage in


Gratian's text concern ing the celebration of the mass

(pars Ill. dist. 1. c.

11 ) . After having stated that the sacrifice must be offered on the altar or in

a consecn1ted place, Gratian adds, '(It is prefcrablr: not to sing or listen to


the mass than to celebrate it

l
I

in pl aces where it should not be celebrated,

unless it happens because of a s up rerne nect:ssity, for necessity has no

summa necessitate contingat, t.fuonia.m necessitas legem non


More t han renderin g the illicit licit, neccssity acts here to justify

a smgtc. specific case of transgression by means of an exa;ption.


'11lis is clear in the way Thomas in the Summa theologica. d evelops

is of use or ofhann to the chy; this can be done

by the sovereign who in a case of thi<; sort, has th:- authority to grant
dispensations from the law. If th ere is, however) a sudden dange-r, re
garding which th('re

is no time for recour>e to a higher autho rity,


with it, for n ecessi ty is not

the very net:tssity carri (;s a dispensa tion

subject "to the law [ ipsa nccessitas dispensationem hahet annexam, tfuia
necessitas non su!Jditur legi] .

Here, the theory of necessity is none other than a theory of the excep
by vi rtue of which a particular case is released from
the obl igation to observe the law. Necessity is nol a source of law, nor
do\:s it prope-.rly suspend the law; h m erely rdeases <1 [>Mticular case from
the H tera1 appl icatio n ofthe nonn: "He who acts beyond the letter of the
tion ( dispensa tio)

law in a case

or for whatever other cause" !patS J.

licit (Si prnp1er necessitatcm aliquid fit, illud licite fit: quic1 quod non est

licit in law n ecessity m akes licit .

int(f}H'Cl what

not judge by the law i tself but judges by the

particular ..:asc, in which he sees that

ll
!

the letter of the law is not to be ob-

sed iurllcat de t:asu sht,I{Ulari,

served
verba
here is not necessity

for this does it


if it fdils in this
regard, it has no ca:pa<oity

" ln the

cas(' of necessity, the


the goal

of _saltls lwmimrm is Jackin g.

a status or situation of the luridkal order as such


or necessity); rathe1\ i n each instance it is a qu estion of a particul a r case
in which the
!{ we

vis and ratio of the law find no applicatJon.

find an example of the law's ceasing to apply ex Jispensatione misercor

diae [out of a dispensation of mercy] in a pcculJar passage from Gfatian where

the canonist states that the Church can elect not to punl'lh a transgression in

Chapter One

:t6

The State of Exi;cption s a Paradigm of GO'vernment

a situation where the transgressive dccJ bas already occurred (pm

eventu rei

(for the consequence of the thing]: for <:xampk l n a case where a person who
could not accede to the episcopate bas iulact already been onhind as bishop).

P<1rac!oxically. the law is not applied here pte(':i.5ely because the tr nsgressive act
has

effe.-iively already h{:(ll commi tted aiJ(i .p11nishing it would anyway entail

negati ve consequences f()r the Church. In analyzing this text, Anton SchUlz has
rightly observed th at "in condi tioning validity by

fc lidty in s;:eking contact


,

w ith an cxtrujuridkal rality, [Gratian 1 prevent,., lJ!e law from rdCrrlng only to

tbc law

and thus prevents the closure ofthe juridical system'' (Schiiiz 1995, uo),

In th is sense, the medievai exception


syllt\.m to an external tact, a SQft offictio

by whkh, jn this

case,

one acts

as if lhe hishop had hien legitimately eieded. The modern stUte of exception is
instead ;m attem pt to indude the exception itst'lf within the juridical order by
of i:ndistinction in which fact and law coincide.

It 1s interesting to analyze frorn th i s perspective the extreme position

of Santi Romano, a jurist who had a dJnsidcrabJe influence

l egal 'thought between the wa rs For Homano, not


.

unrelated to th e juridical

necessi ty as a juridical fa_,::t or even a subjective


which is ultimately grou nded as such in the legisla tion _tn force and in
the general orh1 dvl es of law and, on the other hand, thos who think
see

IHccssity is a mere fact and that therefore the emergency

ing to Romano, both posit ions, which agrc( in their identification of the

The necessity wi th which we are concern ed here mnst be conceived of


1s a state of a ffai rs that, at least as a rule and in a compl ete and prac

necessary for the

source oflaw. . . . It Gm be said th<lt necessity is the first and originary

source of alJ law, such that by comparison l'lw ot hers are to be con
sidcrcd .somehow derivative.

ne<:eso:ity tend s to be

when it is established as a de facto process for exarnple, on the way

its vis obligrmdi { this is the sense

lo revolution. And what occurs in the in it i al moment of a parti<:ui<Jr

legem non habet) is reversed, becoming the prin


ciple accord ing to which n ecessi ty constitutes so to speak, the ultimate
ground and very source of the law. TI1is is true not only for those writ
ers who sought in th is way to justify the national interests of one state
kn ows
against another (as in the fonT.ml a Notkemtl kein Gcl1M

as

no lawL used hy the Pru.ssi an Chancellor Bethmmm-Ho11weg and taken

(drrn:!ro, !t'j'l,

11rcessitas

'

hut also for dwse

the executive in the

. , And it is to necessity that the origin

state, and its consfltnttonal order in general, must be trac,d

defines a

Duguit, who see n ecessity as the foundation of

and l egiti m ation of the legal i nsti tu tio n par excel le nce , namely, the

included within the iu rid icaJ order and to appear as a true and proper
"'sl-ale" of the law. The princi ple according to which

up again i n Josef Koh ler s book of that title

cannot be regu lated by previously cstf1blisht:d


norms. But if it has no law1 i t makes law) as an other common expres
sion has it; which means that h Hsdf ronstitntes a true and proper
effective way,

to the medieval world.

situation in which the law loses

with the law

legislation.

the end of hw, must proleed with hrw [quicunquC' jinem

lt is only with 1hc moderns tha(thc s tate

[il diritto_1

[Ia legge]," are incorrect, i nsofar


<IS they disaYoW th e existence of a true and pro per source of law b eyon d
juridical order

the common good) withoul Jaw, and that therefote ''whoever inlc'n,ls to achieve

1.10

[ f'tazicmali]

powers founded upon it have no basis in the legislative system. Accord

lent. but iure, Dante states that it is impossible to obtain 1he end oflaw (that is,

The idea tha t a smpcmion of law

the first and originary source


,

l'l: \t\/(! lind an implid t critique of tht> state ofexception in Dante's De monnrrhia.

cmmnon good Js

but it is

l aw He begi ns by distinguishing between on the one

Seeking to prove that Rome gained dominion ovet the world not !hrough vio

graditur]"

Z7

regime can also repeat itsdf, tho ugh in an exceptional way and with

" The nvn terms: fwre ate dititio and frggc, both ofwhich m1:: lJSIUJ!y !ranslated in Ene.lish
"!nw." While theooe term<; hne dot' corn::spomle;Jn' in Frencb (droit, loi), Sp<mish
and Genr;an

(Rechr, Ge>err), somc of11wir .<'!b1' ls inevit;Jb]y !ot in the

p<1SS<S" \\t Fnglish . Among thdr mc;mings, rliritto c;wri,, thl' :wnse ofbw in th0 abgtr.Kt,
ot !he rutin: spl 1ere ofbw, 1vhile leggr; refcrt to tlw spe(,:iflc hndy of rules that (1 C(lnlmtmity
0t

str.k wnsiders binding. Here nnd in a fc;w- oth<:r crises where this dislindirm is cti!k;1l, l

hnve, folkwing the author's ;1.Jg[',!">tion, tYndercd diritto a$ "llw .iuridkal order" <1nd leggt
as "the law." - -Trans.

28

Chapter One

more attenuated characteristics, even after the regime has formed


and regulated its fundamental institutions. (Romano 1909, 362)
As a figure of necessity, the state of exception therefore appears
(alongside revolution and the de facto establishment of a constitutiona
system) as an "illegal" but perfectly "juridical and constitutional" mea
sure that is realized in the production of new norms (or of a new juridi
cal order):
The formula . . . according to which, in Italian law, the state of siege
is a measure that is contrary to the law (let us even say illeg<l) but is
at the same time in conformity with the unwritten positive law, and
is for this reason juridical and constitutional, seems to be the most
accurate and fitting formul<1. From both the logical and the historical
points of view, necessity's ability to overrule the law derives from its
very nature and its originary character. Certainly) the law has by now
become the highest and most general manifestation of the juridical
norm, but it is an exaggeration to want to extend its dominion be
yond its own field. There are norms that cannot or should not be
written; there are others that cannot be determined except when the
circumstance? arise for which they must serve. (Romano 1909, 364)
The gesture of Antigone, which opposed the written law to the
agrapta nomima [unwritten laws] is here reversed and asserted in de
fense of the constituted order. But in 1944, by which time a civil war was
under way in his country, the elderlyjurist (who had already studied the
de facto establishment of constitutional orders) returned to consider the
question of necessity, this time in relation to revolution. Although rev
olution is certainly a state of fact that "cannot be regulated in its course
by those state powers that it tends to subvert and destroy" and in this
sense is by definition "antijuridical, even when it is just" (Romano 1983,
222), it can, however, appear this way only
with respect to the positive law of the state against which it is di
rected, but that does not mean that, from the very different point of
view from which it defines itself, it is not a movement ordered and
regulated by its own law. This also means that it is an order that must

The State of Exception as a Paradigm of Government

29

be classified in the category of originary juridical orders, in the now


well-known sense given to this expression. In this sense, and within
the limits of the sphere we have indicated, we can thus speak of a
law of revolution. An examination of how the most important rev
olutions, including the most recent ones, have unfolded would be
of great interest for demonstrating the thesis that.wc have advanced)
which could at first sight seem paradoxical: revolution is violence,
but it is juridically organized violence. (Romano 1983, 224)
Thus, in the forms of both the state of exception and revolution, the
status necessitatis appe<1rs as 8D ambiguous and uncertain zone in which
de facto proceedings, which are in themselves extra- or antijuridical,
pass over into law, and juridical norms blur with mere fact---that is,
a threshold where fact and law seem to become undecidable. If it has
been effectively said that in the state of exception fact is converted into
law ("Emergency is a state of fact; however, as the brocard fittingly says,
e facto oritur ius [law arises from fact]" [Arangio-Ruiz 1913, 528]), the
opposite is also true, that is, that an inverse movement also acts i n the
state of exception, by which law is suspended and obliterated i n fact.
The essential point, in any case, is that a threshold of undecidability is
produced at which factum and ius fade into each other.
Hence the aporias that every attempt to define necessity is unable to
resolve. If a measure taken out of necessity is already a juridical norm
and not simply fact, why must it be ratified and approved by a law, as
Santi Romano (along with the majority of writers) believes it must? If it
is already law, why does it not last if it is not approved by the legislative
bodies? And if instead it is not law, but simply fact, why do the legal
effects of its ratification begin not from the moment it is converted into
law, but PX tunc I rrom then]? (Duguit rightly notes that this retroactivity
is a fiction and that ratification can produce its effects only from the
moment at which it occurs [Duguit 1930, 754] . )
But the extreme aporia against which the entire theory o f the state
of necessity ultimately runs aground concerns the very nature of neces
sity, which writers continue more or less unconsciously to think of as an
ohjective situation. This naive conception--which presupposes a pure
factuality that the conception itself has called into question-is easily

30

Chapter One

critiqued by those jurists who show that, far from occurring as an ob


jective given, necessity clearly entails a subjective judgment, and that
obviously the only circumstances that are necessary and objective are
those that are declared to be so.
The concept of necessity is ail entirely subjective one, relative to the
aim that one wants to achieve. It may be said that necessity dictates
the issuance of a given norm, because otherwise the existing juridi
cal order is threatened with ruin; but there must be agreement on
the point that the existing order must be preserved. A revolution
ary uprising may proclaim the nece.'isity of a new norm that annuls
the existing institutions that are contrary to the new exigencies; but
there must be agreement in the belief that the existing order must:
be disrupted in observance of new exigencies. In both cases . . . the
recourse to necessity entails a moral or political (or, in any case, ex
trajuridical) evaluation, by which the jridical order is judged and is
held to be worthy of preservation or strengthening even at the price
of its possible violation. For this reason, the principle of necessity
is, in every case, always a revolutionary principle. (Balladore-Pallieri
1970, 168)
The attempt to resolve the State of exception into the state Of neces
sity thus runs up against as many and even more serious aporias of the
phenomenon that it should have explained. Not only does necessity ul
timately come down to a decision, but that on which it decides is, in
truth, something undecidable in fact: and law.
t Schmitt (who refers several times to Santi Romano in his writings) probably
knew of Romano's attempt to ground the state of exception in necessity as the
originary source of law. His theory of sovereignty as the decision on the excep
tion grants the Notstand a properly fundamental rank, one that is certainly com
parable to the rank given it by Romano, who made it the originary figure of the
juridical order. Furthermore, he shares with Romano the idea that the juridical
order [il dirittoJ is not exhausted in the law [ la legge] (it is not by chance that he

cites Romano precisely in the context of his critique of the liberal Rec!Jt.staat);
but while the Italian jurist wholly equates the state with law, and therefore denies
all juridical relevance of the concept of constituent power, Schmitt sees the state

The State of Exception as a Para(ligm of Government

31

of exception as precisely the moment in which state and law reveal their irre
ducible difference (in the state of exception "the state continues to exist, while
law recedes" [Schmitt 1922, 13/12]), and thus he can ground the extreme figure
of the state of exception-sovereign dictatorship-in the pouvoir conslituant.

1.11 According to some writers, in the state of necessity "the judge elab
orates a positive law of crisis, just as, in normal times, he fills in juridical
lacunae" (Mathiot 1956, 424). In this way the problem of the state of
exception is put into relation with a particularly in teresting problem in
legal theory, that of lacunae in the juridical order [il diritto] . At least as
early as Article 4 of the Napoleonic Code ("The judge who refuses to
judge, on the pretence of silence, obscurity or insufficiency of the law,
can be prosecuted on the charge of denial of justice"), in the majority
of modern legal systems the judge is obligated to pronounce judgment
even in the presence of a lacuna in the law [ Ia Iegge J. In analogy with
the principle according to which the law [ la Iegge] may have lacunae,
but the juridical order [ il diritto] admits none, the state of necessity is
thus interpreted as a lacuna in public law, which the executive power is
obligated to remedy. In this way, a principle that concerns the judiciary
power is extended to the executive power.
But in what does the lacuna in question actually consist? ls there truly
something like a lacuna in the strict sense? Here, the lacuna does not
concern a deficiency in the text of the legislation that must be completed
by the judge; it concerns, rather, a suspension of the order that is in force
in order to guarantee its existence. Far from being a response to a nor
mative lacuna, the state of exception appears as the opening of a ficti
tious lacuna in the order for the purpose of safeguarding the existence
of the norm and its' applicability to the normal situation. The lacuna
is not within the law [la legge] , but concerns its relation to reality, the
very possibility of its application. Tt is as if the juridical order [ il diritto]
contained an essential fracture between the position of the norm and its
application, which, in extrme situations, can be filled only by means of
the state of exception, that is, by creating a zone in which application is
suspended, but the law [!a legge] , as such, remains in force.

Forc<--of:.
2

Force-of-1At

fhm1 any consJderat ton of law" (S ch mitt 1921,

33

and that: indeed "in

its factual substance, th<lt is, in its core it cannot take a ju.ridka1 form1'
t

Nevertheless> it is essential for Schmitt that in every case some


relat io n to the j uri di cal order be ensured: "Both r;ommlssarial dictator
ship and sovereign dictatorship entai l a relation t o
'2,1

The most rigoro tlS attempt to construct a theory of the stale of

excepti on was made by Carl S<.:hmitt 1 essentiaUy jn the books Dictatorship and , one )'t""rtr later, Political Theology. Because these two books
from the beginn i n g of the 1920s describe-with a, so to sp ea k inter
ested proph esy-a paradigm (a ''form of go vernment" [Schmitt 1921,

juridica l contf'Yt''

"Because the state of except ion js always something diH Crent


ana rchy and chaos, in a juridi cal sense) an order still exists in i t) even i f
i t i s not a juridical order'1 (Schmitt 1922,

1-3/12),

The spedfic contribution of Schmitt's theory is p recisely to have


made such an articulation between state of exception and _juridic al or
der possible. It is a p ar doxkJ l articulation, for wha t must he inscribed

that has not only remained cmrent but has today reached its full
.
deveJopmenl. it is necessary at this point to present the fundamen taJ

with i n the law is someth i ng that is essentially exterior to it, thal is,

th.-ses of Schmitt's theory of the stale of exception.

aporetical formulation; "In a juridical sense. an o rde r

Hrsl a few remarl<s concernirig terminology. In the book from 1921


the state of exception is presented t hrough the figure uf di ctatorshi p,
Dictatorship, however, whkh encompasses the state

is essen -

tially a state of exception,'' and insofar as it presents itself as a "sus


pension of law," it comes down to the pmhlem of defining a ('concrete
exception, . . . a problem that up to now has not been held in due con
sideration hy the general theory of law" (Schmitt 1921) xvii). Having
thus inscribed tht state of exception within the conteA_'t
Schmitt thetl distinguishes between "commissarial di ct at orship," which
has the aim of defending or restoring the existing constitution , and

i gn dictatorship,:1 in which, as a figure of the excepti on, dictator-

"sovere

reaches its, so to- speak) crHical mass or mel tin g poi nt. The terms

ofsiege can

nothing less than the suspension of the juridi cal order Jtself {hence the

J:>1iU exists) .

. .

even i f it is not a jmidical order" ).


In Dictatorship) the operator of this inscri ption of an outside of the
law within the law is, in the case of commiss:arial dictat orship, the dis
tinction between nonns of law and norms of the realization of law

{ Rechtsverwirklichung)

and in the case of sovereign dictato rship, the

distinction between constituent power a nd consti tuted power.


because it "s uspends the constitution in concreto in order to protect its
concrete existence" (Schmitt 1921,

136)1 com m issa rtal dlcl atorshlp ulti

mately has the function of creating a st ate of aft3 irs .. in which th e law can
he reaJjzed"

{137). Jn commissurial d ictato rsh ip, lhe constitution can be

suspended in its applicati on "v.t i thout thereby cea sing to remain in force,
b ec ause the suspens ion sign ifies solely a concrete excep ti on"

(137). On

thus d isappear in Political Theology,

a th eoreti cal level) contm.issarial di ctatorsh ip can thus be wholly sub

with the state of exception (Ausnahmezustmul) taking their place, while

sumed in the distinction between the norm and the techno-prnctical

dictatorship and state

the ernphasjs shifts, at least app<1 rently, from a d efi ni tion of the excep

1 lon t o a defin il ion of soverei gnty. The strategy of Schmitt's theory is

rules that govtrn its realization.


The situa ti o n ls diffe ren t in soverei gn dictatorship, which is not lim

l h er cfore a two stage stratgy) whose articulations and aimswewiU have

ited to su spend ing an exi st ing constitution {'on the b asi s of a

to under stand dearly.

provided for th erein and is therefo re itself cons I itutional" (Schmit t

In both books, the telos of the theory is the inscript ion of the state of
exception within a juridical con text. Schmit t knows p erfectly well that
because it brings about a " su spension of the entire cxistingjurid i cal or
der" ( Sdunitt 1922, 13hz), the state of exception scents to "subtract itself

137), Rather, it aims at creating a st at e of affairs in which it becomes pos


sible to impoe a new con titution. In this case, the operat or that allows
the state of except io n to be anchored to the juridical order is the dis
tinction between co nstltuent power and constituted power, Constituent

34

Chapter Two

Force-of-

35

power is not, however, "a simple question of force"; it is, rather, "a power
that, though it is not constituted in virtue of a constitution, is neverthe
less connected to every existing constitution in such a way that it appears

At this point we can understand why the theory of the state of ex


ception can be presented in Politim! Thcolagy as a theory of sovereignty.

as the founding power, . . . and for this reason it cannot be negated even
if the existing constit11tion might negate it" (137). Though it js juridically

anchorage to the juridical order. But precisely because the decision here
concerns the very annulment of the norm, that is, because the state o

formless (forrnlos), it represents a ''minimum of constitution" (145) in


scribed within every politically decisive action and is therefore capable
of ensuring the relation between the state of exception and the juridical
order even in the case of sovereign dictatorship.
This clarifies why in the preface Schmitt can present the "essen
tial distinction between comrnissarial dictatorship and sovereign dic
tatorship" as the "chief outcome of the book," which makes the con
cept of dictatorship "finally accessible to jurisprudential consideration"
(Schmitt 1921, xviii). Indeed, what Schmitt had before his eyes was a
.
"confusion" and "combination" between the two dictatorships that he
never tired of denouncing (203). Yet neither the Leninist theory and
practice of the dictatorship of the proletariat nor the gradual exacerba
tion of the use of the state of exception in the Weimar Republic was a
figure of the old commissa rial dictatorship; they were, rather, something
new and more extreme, which threatened to put into question the very
consistency of the juridlco-political order, tmd whose relation to the law
is exactly what Schmitt sought to preserve at all costs.
In Political Theology, on the other hand, the operator of the inscrip
tion of the state of exception within the juridical order is the distinc
tion (which had already been proposed in the 1912 book Gesetz und
Urteil) between two fundamental elements of law: norm (Norm) and
decision (Entscheidung, Dezision). In suspending the norm, the state of
exception "reveals [ offenbart J, in absolute purity, a specifically juridical
formal element: the decision" (Schmitt 1922, 13/13). The two elements,
norm and decision, thus show their autonomy. "Just as in the normal
situation the autonomous moment of decision is reduced to a mini
mum, so in the exceptional situation the norm is annulled [ vernichtet ] .
And yet even the exceptional situation remains accessible to juridical
knowledge, because both elements, the norm as well as the decision,

The sovereign, who can decide on the state of exception, guarantees its

exception represents the inclusion and capture of a space that is neither


outside nor inside (the space that corresponds to the annulled and sus
pended norm), "the sovereign stands outside [steht r/11ficrhalb] of the
normally valid juridical order, and yet belongs [gehOrt] to it, for it is
he who is responsible for deciding whether the constitution can be sus
pended in toto" (10/7).
Being-outside, and yet belonging: this is the topological structure of
the state of exception, and only because the sovereign, who decides on
the exception, is, in truth, logically defined in his being by the exception,
can he too be defined by the oxymoron ecstasy-belonging.
N The relationship between Dictatorship and Pofiticnf Theology must be seen
in the light of this complex strategy of inscribing the state of exception within
the law. Jurists and political philosophers have gencrall)' directed lheir Mtention
chiefly to the theory of sovereignty contained in the hook from 1922, without

realizing that this theory acqt1ires its sense solely on the basis of the theory ofthe
state of exception already elaborated in Dictatorship. The rank rmd the paradox
of Schmitt's concept of sovereignty derive, as we have seen, from the state of
exception, and not vice versa. And it is certainly not by chance that Schmitt had,
in the 1921. book and in previous articles, first laid out the theory and praxis
of the state of exception, and only later laid out his theory of sovereignty in
Politiml Theology. There is no doubt that his theory of sovereignty represents an
attempt to anchor the state of exception unequivocally to the juridical order, but
the attempt would not have been possible if the state of exception had not first
been articulated within the terms and concepts of dictatorship and, so to speak,
"juridicized" tl;rough reference to the Roman m::gistrncy and then through the
distinction between norms oflaw and norms of realization.
2.2

Schmitt's theory of the state of exception proceeds by establishing

within the body of the law a series of caesurae and divisions whose ends

remain within the framework of the juridical [im Rahmc11 des .furistis

do not quite meet, but which, by means of their articulation and oppo

chen] " (13/12-13).

sition, allow the machine oflaw to function.

36

Chapter Two

3-7

Forceof-J::aW.:

'H1ke on the one hand the opposition between norms of law and

It can g{:ncrally be said that not only la nguage and law but a1J social institu

norms of th e realization oflaw, between the norm and it;;; t:uncr<."te ap

tions have been formed through a process of desernaHticlation and :mpen

that the moment of applica


tion ls autonomous with respeCt to the norm as such, and that the norm

sion of concrete praxis in its immediate reference to the reaL Just as

"can he suspended withou t t h ereby ceasing to remai n j a force" (Schmitt

mar, in producing a

speech without

a language from discourse, and Jaw, .in suspending th concn:tc custom and

1921,, 137). That is) commissa rial dictatorship represen ts a s tale of the law

\lsage of individuals, has been abl e to isolate something like

i n which the law is not appHed, but remains in force. Instead sovereign

patient

whkh the old constitution no longer exists and the new


one is present in the "minimal" form of constituent power) repescn t s a
state of the law in whkh the law is applied, . but is not formally in force.
Take now the opp osition between riorm and decision. Schmitt shows
that they arc irreducible, 'in the sense that the decision can

,rlcvr be d:..

gram

denotation1 has isolated somethJng like

norm, so

work of civilization proceeds in every domain hy SC{'Ot'aling

praxis fmm its concrete exercise and thereby creating that excrss of signification
over denota1 ion th,lt Levi-Strauss was the first to recognize.. In this senr;e, the
floating signifier-this guiding concept in tfu: human sdences of the twen tieth
century--com,\.o;pond to the state of exception, in which the norm is ln (nn:e
witho11t

rived from the conlent of a norm without a re mai nder (rest!os) (Schmitt

1922, 9/6). In the decision on the state of exception, the norrn is Slri:i

2.3

pen dccl or even annu!Ied; but what is at issue in this suspension is, once

gave a lecture titled "Force de loi: le 'fondcment mystique

again, the creation of a situation that makes the ar:tplication ofthe rwrrn

The lectnre, which in truth was a readi ng of Benjami n's

possible ("a situation in which juridical norms can be valid

of Vi olence," gave rise to a wide deb a te among philosophers

[gelte1t] must

In 1989, at the Cardozo School

be brought about'' (13/13). That is, the state of exception sl':pan'ltcs the
norm from its appl icati on in order to make its application possible, It

but the fact that that no one alternpted to analyze the seemingly

introduces a zone of anomie into the law in order to JT1ake the effective

complete separation between ph ilosoph ical an d legal culturest bnt

regulati on

[ normaziMJe 1 of the real possible.

formula that gave the text its title is an indication not only of
also of the latter's decline,

Wecan, then, ddine the state of exce:vtion


..
in Schmitt's t heo ry as the

Behind the syntagma force of law stan ds a long

tradition in Rom an

place where the opposition between the n or m and its realization reaches

and rncdicval l aw, where {at least beginning with Justini an's /)igests, De

its gre:ttest intens1ty. 1t is a fiel d nf j ur idical tensions in whid1 a mini


mum of formal being-in-force f vigenza I coi ncides with a ma.xjnmm of

capaci ty of l"w is this: to command, to forbid, to allow, to pun ish 1) it

real nrmlica1ion. and. vice versa. But even in th is extreme Wt1e-and,

has the generic sense of dlicacy, the capacity to bind. llut only in the

ofit-the two elements of th e law show their

1.7; legis virtus ht1ec est: imperare, vetare, permittere, punire

[The

modern epoch ) i n the context ofthe French Revolution, docs i t begin

to indicate the supreme value of those state acts dechmd by tlH repre

i nti mat cohesion.

sentative assemblies of the people. Thus, in Article 6 of the constitution


The slrud11ral
as lin!:uislic

between langmtge and

iaw is iHuminating hen\

Just

without any reat denotation, whkh they


actu:1! dls:ourse, so i11 tbe state of exception the norm is in force
But just as concrete linguistic adivJty hccornes

the presupposition of something like a l an guage,

so is the

fi{)fm

ahle to reftr to the normal situation through the

lts atmHcation in the state of xception.

.
suspensiDll of

of 1791, force de loi <.ksign<:lhs the untouchability of the .law, which even
t he sovereign h lmself can neither abrogate nor modify. I n this
modern doctrine distinguishes

benveen the ejficaty of the law- which

rests <lbsolutdy with every valid l egisla tive act and consists in t he pro

duction of legal effects-and the force oflaw, which is in stead a relative


concept that express.e's the position of the hn.v or of acts comparable to it
with respect to other acts of the juridkai order that are endowed with a

Force-of-L

38 Chapter Two
force superior to the law (as in the cas-e of the constitution) or interior to
it (such as the decrees and regulations issued by the txccutive) tQuadri

1979> lO),

39

organization (which acts a s ;t sovereign dictatorship). The state of ex


ception is an anomie space in which what is at stake is

force of law

,,vithout law (which shouJd therefOre be written: force-of-JaW:). Such

The decisive point, however, is that j11 both modern and ancient doc

trine the syntagma force o_flaw refers in the 1echnical .seuse not to the law

"forc<:>ofJ:w:_J" in which potentiality and act are radically separated1

c&ri:lin]v !;;r.methin like a mystical dement,

b u t to those deCrees (which, as we indeed say, have the force ofJaw) that
the executive power can be <mthoriz<.d to issue in some sitnation.s, par
ticularly in the state of exception. That is to say) the concept of ''force of

it acts in

demcnl and
This is nn:dsr.lv the: problem that

Vv"C

must try to

law;' as a technical legal term, defines a separation of the norm's vis obli

grmdi, or applicabil)ty, from its formal essence, whereby decrees> provi


sions, and measures that are n o t formally laws neverthekss a rquin:. their

"fo rce." Thus, when the Rom an

sovereign beg i n s

to acqire the power

2.4

question was put o n


theDrv of imhnnenl a:, a fa<"U!t\' of

a fal se

general. The application of a

to issue acts that tend increasingly to have the value of laws) Roman
doctrine says that these acts have the "force of law'' (Ulpian, in

norm would thus be a case of dttcrminant judgment , in which the gen


and the 1),1 r1 kula r case is to be subsumed under

1,4.1: qiwd principi placuit legis habet vigoretn lbecau)le it pleasd the

sovereign, it has the force of faw]; using eqtJ ivalent e;gprcssions,

particular that is given; and the

ones that underscore the formal distinction between the h1ws and the

www._1 Even though Kant was petfectly awme

writes
vitem ohtine:-tt I let i t
tak( the place of1aw] 1 a n d Pompon ius wri tcs pro le:;;e servetur
it serve

anorftic nature of the problem and of the diHk11hy involved in


bcnveen the two types of judgment (a..<> shmvn hy
conc:rf'tf'lv

constitution of the sovereign, Gaius

for lawj ).
'
I n our discussion of the state of exception, we have encmml<:red nu
merous examples of this confusion between acts o ftht.' t-xecutive powtcr
and ads of the legislative power; indeed, as we hav-e seen, such a con

fusion defines one .of the essential fha racteri.stks of the state o (
Hon. (The limit case i s the

Nazi regime, i n whic as Ekh rnan n never

tired ofrepeating, "the words ofthe Fuhrer have the force oflaw

zeskruft]);"

But from a technical standpoint the specific contributjon of

exttmple

<'IS

n instalKC of a rule that cannot be ermn

tbe mist<tke here is that the rd,;tion between the particular case
and the norm appears as a
Once

operation.
lmguagc is illtm1inating: In the relation
(and <11l the more so in the case of

: appliction of a juridknl norm), it is not only (1 !ogial subsumption


that is at issue, hut first and foremost the passage from u gt.'neric propo
sition endowed with a

virtual reference to

concrete reference

the state (jf exception is less the confusion of powers, which has been

to a segment of reality (that is. nothing less than the question of the ae

from the law. It defines a ''state of the JaW Jn

tna! relation between l a nguage and wodd). This possagc from langue to
or from the semioti-c to the semantic) is not a Jogknl ope r:: tion at

aiJ tQo strongly insisted upon, than it is the separation

the norm is in force f vige] but is not applied (it has no ''force"
o n the other, acts that do not have the value
its "force."

nJat is to say, in extreme situations "fOrce of law" float<; as

an indeterminale element that can be claimed both by the state author


acts as a commissa rial dictatorshinJ and bv

a revolutionary

rathet\ it always erita ils a practical activity> that is, the assumption of
more speaking subjects and the impk-mentation of fhat

complex apparatn;r.: that Benvt' n i sl e defin('d as


whkh logicians often tend to undervalue.

In

llw enuncin! ivc fu nc1 ion,


th( case o.f the j urid.ical

norm, reference to the conctctc case entnHs a ''trial" that a.lwt;ys involves

4;>

Chapter Two

a plurality ot subjects and ultimately cnlminales in tbe pronunciation of


a sentence, that is, an enunciation whose operative reference to reality
is
by the institutional powers.
In order to pose the problem 31)Dlkation corredly; it must there
fore first be movt>d from the
to the pra\.:tical. As Gada.mer
has shown
is every linguislic inter
annlic:1tion rc(!uirimr an effective operation
summilrized i n the
marim that
beginning of his edhion of
arl f'extum, rem totam applita ad

all of it to yourself]
i n the case oflaw, tht application of a norm is in no
way contained within the norrn and cannot be derived front it; otherthere would have been Do need to create the grand edifice of trial
law, Just as between
and world, so between the norm and its
application there is no internal nexus that allows one 1-o be derived im
mediately from the other.
In this sense, the state of exception is the opening of a space in which
appHcation and nonn reveal their se-p;ltation and a pure force --otla-w::
realizes (that is, applies by
to apply (dis-appliamdo]) a norm
whose application has been &1.1 spci1ded. l'n this way, !he impossible task
of welding nnrm and reality together, and thereby constituting tlJe nor
mal sphere is carried out in the form of the exception) that is to sByl by
presupposing their nexus. This means that in order to apply a norm it is
ultimately nccessJry to suspend its npplkation, to produce an exception.
In every cast\ the st<'lte of exception marks a 1hreshold at which logk and
praxis blur with each other and a pnre violence without logos claims to
realize an cnundation without any real refrence.

3 1\ Justitium

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


considered the an.:httype of the modem Ausnahmezustand, and yet
in(h:rd, perhaps prcdsdy for this reason-does not seem to have heen
given sufficient aUNttion by legal historians and theorists of public law:
the iustitium. Because it ol!ov>'s us tn observe the sttte of exception in its
paradigmatic form, we will US(' the iw'titium here as a miniature model
as we attempt to untangle the apori<1s that the modern theory of the state
of exception cannot resolve.
itnation that endangered the Republic, the Senate
would issue a scnatus mnsu!tum ultimum f final decree of the Senate1
by which it called upon lhe co1uuls (or those in Rome who acted in
thdr stead: intem;.x or proconsuls) and, in some cases, 'the praetor and
the tribunes of the people) and even, in extreme cases, all citizens) to
considered necessary for the salvation of

puhfimm

opcmmiplt dent ne

respuMica

them defend the state, ami see to it that no harm


At the base of this senatus consultum was a decree
is, an emergency situation in Rome resulting
war} insurrection) or civil war), which us:naHv led to the
frorn a
proclamation of a iustitium ( iustltium edicere or indicere
or declare a iustitilum]
like snlstitiwnThe tenn imtitium-whkh is constructed
of the laW' rJuamio ius stat,
literally means "standstill" or
sicut S(Jlstitium <licitur
as the grammarians
sun does
as
tbc s(11s1 ice"); or, in the words of Aulus Gellius) iuris
interstitio
quaedam et ccssMio (as if it were .an interval and a sort of ct'ssatlun of
of the adminis
not
law). '!11e term implied, then, a
tration ofjuslkc but of the h1w as o;uch. The m<caning
legal institntio11---whkh consists solely in the production

,/

fustititrm

Chapter Three

4'2

void is what we must examine here from both a philosophico-political

sches Staatsrecht, he has to confront the probJem of the senatus consul


of nca;.;slty that i t presupposes

::.:tandpoint and from the pet'spective of the systematics of public law.

ofsdf-deft>nse
}t The Jefini1ion of the concept of tumult!I$, particularly in comparison to war
(bellum), has led to debates that are not always pertinent. Tht corme<:tion he"
tWf'('H

th: h;ro concepts i s already present in ancient

p<1Ssage from the

sou rces, f(lr exAmpk in the

Philippics (8.1) in which Cicero states that "there can be a wa1'

without iumull) but

no

or stronger l(>rm of war

acquires a right of selfdefense in those urgent sifuatlons i n which the protect inn of the com

there is also a right o fself-defense for the state .and lOr ev-

of the law f ausscrhalb des Red1ts], it is nevertheless necessary to make

an irreducible difft:r'"

ence between them. Jndeed, an analysis of the passages fmm

(Wrnultw i8 related to tumor, which

so rder :tnd 1mrest

fermentation,) tbal arises

feat in the war

in Rome as a result of that event (thus the news of a de

lhe Etruscans gowe rise to a tumult and rnai0r!'m qtmm re

ter

the essence and application of this right of self..defense


fntelligJble, at least to the degree to which i t !ends itself to

flltmiltu:; shows that though the cause of a tumult can be (but is not
un external war, the term tedmic:11ly dcsignnle>s the st<t<: of di

in
breaks down. Though in a certain St"Tise it. stands outsidt
.
ical fun...!ion

fidrte5, gnrdgcrtcs bellum [sec Nis:>en 1877 7lfj ); instead, at


affirming a connection between war and tumult, it

e best he

flegittima

elf-rlf'fpn.;;e:_ Notwehr; recaUs the term for the Atate

tumult without a war,"' AJl _evidence s11ggests that this

passngc does not mean that tumult is a

43

ror I han tbe thing] [Livy 10.4.2 in Rome), This confusion between cause and
eff!,!cl is dear in the definition fimnd in the Latin dictioonrit.s: bd!1tm

exposition" (Mommsen 1969,

1:

Mommsen's affirmatio n of

a theoretical

687-88).
the state of exception's

ch;nacter and his doubts about the very possib!Uty of presenting it the
certain hesitations and inconsistencies in his
discussion that are surprising in

mind such as hls, whkh has been

described as rather more systematic than historicaL First of all1 even

he is perteciy ;:n-varc of its contiguity with the senatus consulturn

ultimum, he does not E-'Xamine the iustitium ln the section dedicated to


lhi.: state o f ncct:ssity (Mommsen 1969, 1: 68?-97) butjn the section that
dealS with the magistrates' right ofveto (263ft). Purthenn0re, though he
is aware that the 5CIU1tus t:onsultwn tdtimum refers essentially to dvil war
is the means by which ''civil war is proclaimed"

[693j), and

though

he knovvs that the form of cnnscrlption is different i n the two cases

nf vicw
h1w,

measures mav

btlfllm and
of

he does not seem to distinguish between

laken'' (Nissen 1877, 76). The n:lotion between

t11.multus is the $ame one that exists between war and

on the one hand and stale

and political state

on

tumultus

and state of

war (Kricgsrecht ) . In the last volume of the Staatsrecht, he defines the


sem;.tus consuitum ultimum as a "quasi-dictatorship;' introdtJccd into

th..: nmstitu tional sy6"tcm in the time of the Gracchi, and he adds that
"in the last cent.u ry of the Republic, the Senate's prerogative to exercise

the other.

a law of vvar over the citizens was never seriously contested''


3.2

lt cnn come as n o

that the reconstruction

hke a th eor y of the state- of excention in the Roman constitution has


as we have seen; such

Mommsen's stance is s1gmncant.

[1913}) b entirdy misleading, for here not only is thcJ:e


no creation of a new magistracy, but indeed every citizen seems to be

by Pl.aumann

invested with a flo<.t ting and. anom<llous imperium that resists deilnitjon

geJ1eraHy missing from

In th1s

(3: 1243"-

Yet the image of a 1'qua.si-dictatorship" (which will be picked up

i n hi:> ROmi

within the terms of the normdl order.

44

Justitium

ChHpttr Three

state of necessity [ Notstnndscommando] in a wne militiae.

I n his descr iption of this state of exception) Mommsens acumen


m anifests itself pr(dscly at t he point where it shows its limits. He ob
serves that t.he power in question absolutely exc.eds the constitutional

45

like

It, disappears on its own with the cessation of the Janger. (Mommsen

1969, :1; 694-96)

rights of the m agi:;t rates and cannot be examined from a juridicoformal


Tn his descriptfon of this Notstrmdscommando, i n whkh <my and ev
that is floating and

p oi nt of view. He writes,

ery citizen seems to be invested with an

Ifalready the mention o f the tribtmes o fthe p eopl e and the provincial

"outside ofthe law," ,Momxn sen came as dose as he could to fonmtlating


a theory of the state of e7\J;.eption) but he rcmaJned on this side of it.

govt."rnors. who lack imperium or hold it only nomin ally, prohibits us


from <.:onsidering this appeal [ the one contained in the senatus con
sultum

ultimum] as

a call to the

cxcrdse their constitutional

to energetically

33

this appears even more dea rly on

the occasion when, after the senatus consultum

provoked by Han
ex-consuls, and ex-censors as
sumed imperium
and retained it until the withdrawal of the
enemy. As lhc caH to the censors a!so
exceptiomd prorogation of a
omce, which, moreover,
the Senate could not have ordered in this form. Rather, thi.'se senatus consu!ta cannot be
tlom a juridico"forrnal standpoint: it

Rechtsgeschichte. 'lbe book1 which seeks to an alyze a "legal .institntkm

n ibal 's offensive> atl th e

that has until now passed nea rly unobserved," is interest ing fOr a num
ber ofreasons. Nissen is the .6rst to see dearly that the u.snal understand

ing of the tenn as a '{court holi day ) ( Gerichtsferien) is entirely lnsuffi..


dent and that, i n its techn ical sense, it must also be distinguished fTom
meaning as ''pnblk mourning.'1 Let us take an exemplary case of
a iustitium, the one Cicero describes in Philippirs 5.12. Con.fronted with
l

is ne cessity that produces law) and by d eclaring


[NoiStand], the

Senate, as the

the threat of Marcus Antonins who is leading an army toward Rome,

advisory a uthori ty ofthe com

Cicero addresses the Senate with these words: tu m uftu m censeo dccerni,

munily1 adds only the counsel that the now permitted and necessary

dare a state of tumultus, proclaim a iustitium, ;md don the cloaks


sumere ntcans

"Iere Mommsen recalls the case of a pr.iv::ttc citizen, Scipio Naska,


who, wh(n confronted w it h the consul's refusal to act against Tiberius
Cracdm,.:; ln execution of a .enatus consultltm ultimum, exclaims> qui
rem public4m salvam esse vult, me sequatur! [He who wishes that the
state he safe1 let him follow me!]" and kills Ti beriu s Gracchu.s.
om mande rs jn the state of exception [Not
beside that of th e coosuls more or less as
the im!Jerium of the praetor or proconsul sta'nds beside consular imconferred here is the customary one of a com
mander, and it makes no differen ce whether it is directed against an
to-Rome or against a citizen who rebels . . . .
enemy who
Morrover, this
of cornmand [ Comtnando ], however it may
Jtsclf,
is
s
t
i
ll
less
formulated
th n the analogo1.1.<s power in the
manifest
imperium of these

that the dti:r,ens must take off_ their togas and

prepare for combat! ). Nissen

that translatinr iusl.i

as "court holi day" wo uld


a matter of, un der ex<:eptional COinditions,
Ol) th; action of tl1e m:.rri!ltr:ites
that the law
establ ished against putting
pmhibilion that the l-ex
orders from the people] ) . Stmdtizen to death iniusSu populi
iium here

standsfeldlurren l stands

opMtrrc ( l a.'>sert that it is necessary to de

iustitiurn indici,

personal defenses be expediently organized. (1969, 695--96)

The

In 1877. Adolph Nissen, professo r at the University of Strasbourg,

published the mono grap h Das l11sititum . .l:'ine Studie auy dcr r{imisdwn

stand des Rcchtes,

"stand still and suspension

is the formula

that, <Kcon:liug 1o Nissen, both defmes the term iustitium and translates
the law :md, in lhL-. wuy, all
it to the letter. The iustitium
prescriptions are put out of op era tion. No Roman citizen, whether

magistrate or a private citizen, now has legal powers or dtJ ties"


1877 105). Nissen has no doubts about the aim of this neutralization
of the law: "When the law was no longer abl e to perform Jts

46

Chilj>ter Three

IwJitimn

task-- to guarantee the public welfan---the

problem. Though, like Nissen, he clearly sees the- iigbt


mulhi$ and institium,

connecti on

47

between tu

Mi ddell emphasizes the formal contrast between tttr11ui

r!?leased from the restrictions o fth t law by a 51!11(1111.!; comttltwn} so in the

tus1 whid is

most extrcJDc situations the law was set aside. Instea(l of transgressing it)

by (I rnagistrate. From this he concludes that Nissen\ theis (the iutitimn as a

jt was_deared away; it wa'i suspended through

total suspensifm of law) w<s excessive, for tlH rnag]stratc could not indepen

wh<:..n it became harmful

dccred by the

Senate, and iustitrmn. which nnt11 l be proclaimed

(98). ln other words, according to Nissen1 the Justitium re

dently rcleas{: himself from the restrictions of the laws, 'l1'H1s !'ehahilitatiug tl1e

to the s a rne necessity that Machiavelli unequivocally indicated

old in lcrpretation of the itstitium as a court ho]iday, Middell lets the me,aJling

a institium''

when) in the

Discourses, he suggested ('brealdng" the order to save it

ln <t repuhlk where snch a provision is lacking, one must either ob


serve the orders and be ruined) or break them and not be ruined"

!j38 ]).

Viewtng i t from th<. perspective of t h e sl'<ltc of ll((:cssit y (Notfall), Nis

of the ins.titution slip away from him. For whoever may have been the person
technically qunlitied to proclaim a iustitiwn, it is cerlain !.hat it was
only declared

ex

auctoritate patrum

[on the authority ofth(:

magistrate { or mere citizen) therefore K


< ted on the basis of a state of

sen ca n th ns interpret the

that authorized tl1e suspension ofthe law.

presupposes the

3.4

senarus consultum ultinwm, the declaration of


tumultus, and the iustitimn as systematically connected. The cmtsultum
turnuftus, and the tumultus is the sole GlUI'e of the iusli

tet us try to

down the characteristics

tium. These arc not categories of criminal law but of constitutional law,

emerge from Nissen's monograph

and they designate "the caesura by means of which, from the point of

analyses toward a

view of public law, exceptional measures

iustitium as

at the same tlme, dcvdop his

f Ausnahltletrn:ljlregeln] may be

susnension of the

taken)) (Nissen 1877, 76}.

from other consulta is obviously the adjective ultimus, which appears not to
have received due attent ion frotn scholars. That this term has a tc\:hnknl value

is demonstrated hy the fact tl1atwc find it repeated as a definition ofboth tbe sit
uation
the cr:ms,ultwn (s<?uatus nmsultum u!timae ru:ccssitafis) <.tnd the
addressed to all citizens for th' salvation of the

(q,,;i ,cc.n t'"''licmn sa!vart: vult,


Ultimus d;rivcs from the adv.:rb uls, which means "heyond" (as oppPsed to

The etvmo[ol!ical meaning: of ultimus is therefOre "what is


the most extreme." Ultimd necessitas (ne.fedo etyroo

which sheller and


possible. The Sf:IJatus consultum ultimtml iir..\'1 at such a11 ex treme
outer edge, but if we now ask "'Widl resped to what?" the only possible answer is

lJl the iustitium. In this sense,


iustitimn m ark the l imit of the Rom<1n consti

ordC'r, whkh indeed gets suspended


sc11atus comtdttmf u!tirnwn and

dictatorship, In the Roman constitution, lhc

it

N Jn the s_ynhtJJma :::r:nntus consultum ultimum, the term ihal

tutional order.

dictator was

of magistrate whom t h e consuls had chosen .and whose

imperium, whidl was extremely broad, was conferred hy a lex curiata


that defined its aims. Oi1 the contrary, i n the iUstUium (even in the case
where it is a dictator in office who declares it), there is no creation of
a new magistracy; the unlimited power enjoyed de
tent maf)istrates

facto by the exis

iustirio indirto [the iustitium having been de(larcd] re


imperium, but from

suits not from their heing invested with a dict<ltorLll

the suspension of the laws that restricted their action. Both Mommsen
anJ Plaumann are perfectly aware of this, anrl for this reason speHk not
of dictatorship but of '1quasi-dictatorship"; however) not only does the
!<.quasi" do nothing to eliminate the amhiguity, it i n fact contrib11tes to
the institution's being interpreted according to a manifestly erroneous
paradigm.
This is eqnally true for the modern state of excep tion. 'l'he confuslon

of state of exception and dictatorship is the limitation


and Rossiter and Friedrich after World VVar Two

hoth Schmitt i n 19:2-J

N: Midlicil's monograph (1SR7), published in Latin {though the modern au( Jmrs

from -reso]ving: the aporias of the state of excep tion . rn both cas.:s, the

are cited in German), falls far short of a profntmd rheoretkal nqu iry into the

error

1'\TaS self-srving, since it was certainlv easier to iustifv the state

48

Justitium

Chapter Three

49

of exception juridically by inscribing it in the prestigious tradition of

magistrates) were in privato abditi, reduced to the state of private cit

Roman dictatorship than by restoring it to its authentic, but more ob

izens (Livy 1.9.7); on the other hand, Cicero writes apropos of Scipio

Scure, genealogical paradigm in Roman law: the iustitium. From this

Nasica's gesture that though a private citizen, in killing Tiberius Grac

perspective, the state of exception is not defined as a fullness of powers,

chus he acted "as if he were a consul" (privatus ut si consul esset lllscu

a pleromatic state oflaw, as in the dictatorial model, but as a kenomatic

lan Disputations 4.23.51). The iustitium seems to call into question the_

state, an emptiness and standstill of the law.

very consistency of the public space; yet, conversely, the consistency of

,
N In modern public law theory, it is customary to define as dictatorships the
totalitarian states born out of the crisis the democracies underwent after World
War One. Thus Hitler as well as Mussolini, Franco as well as Stalin, get indiffer
ently presented as dictators. But neither Hitler nor Mussolini can technically be
defined as dictators. Mussolini was the head of the government, legally invested
with this office by the king, just as Hitler was chancellor of the Reich, named by
the legitimate president of the Reich. As is well known, what characterizes both
the Fascist and Nazi regimes is that they allowed the existing constitutions (the
Albertine Statute and the Weimar Constitution, respectively) to subsist, and
according to a paradigm that has been acutely defined as "dual state"they

the private space is also immediately neutralized to the same degree. In


truth, this paradoxical coincidence ofprivate and public, of ius civile and

imperium, and, in the extreme case, ofjuridical and nonjuridical, betrays


the difficulty or impossibility of thinking an essential problem: that of
the nature of acts-committed during the iustitium. What is a human
praxis that is wholly delivered over to a juridical void? Tt is as if when
faced with the opening of a wholly anomie space for human action both
the ancients and moderns retreated in fright. Though both Mommsen
and Nissen unequivocally affirm the iustitium's character as a juridiCal

tempus mortuum, for Mommsen there still exists a Notstmulsrommando,

placed beside the legal constitution a second structure, often not legally formal

which he does not further identify, while for Nissen there remains a Be

ized, that could exist alongside the otherbecause ofthe state of exception. From

fehl, or "unlimited command" (Nissen 1877, 105), which is matched by

a juridical standpoint, the term dictatorship is entirely unsuitable for describing

an equally unlimited obedience. But how can such a command survive

such regimes, just as, moreover, the clean opposition of democracy and dicta

in the absence of any legal prescription or determination?

torship is misleading for any analysis of the governmental paradigms dominant


today.
N Though Schmitt was not a Roman scholar, he nevertheless knew of the iusti

tium as a form of the state of exception ("martial law presupposed a sort of


iustitium" [Schmitt 1921, 173]), most probably from the monograph by Nissen
(who is cited in the book on dictatorship, though in relation to another text),
Though he shares Nissen's idea that the state of exception represents "an empti
ness of law" (Nissen speaks of a juridical vacuum), Schmitt prefers, apropos of
the senatus consultum ultimum, to speak of a "quasi-dictatorship" (which sug
gests a knowledge, if not of Plaumann's study from 1913, at least of Mommsen's

Staatsrecht).

It is from this perspective that one must also view the impossibil
ity (common to both the ancient and modern sources) of clearly defin
ing the legal consequences of those acts committed during the iustitium
with the aim of saving the res publica. The question was of particular im
portance, for it concerned whether the killing of an uncondemned (in

demnatus) Roman citizen was punishable or not. Apropos ofOpimius's


assassination of Caius Gracchus)s followers, Cicero already describes as
"endless" (inftnita quaestio) the question ofv..rhether or not a person who
has killed a Roman citizen while acting in execution of a senatus consul

tum ultimum can be punished (De oratore 2.31.134). Nissen, for his part,
denies that either the magistrate who had acted in execution of a senatus

consultwn or the citizens who had followed him could be punished once

This anomie space that comes to coincide suddenly with the space

the iustitiwn was over; but he is contradicted by the fact that Opimius

o the city is so peculiar that it disorients not only modern scholars but

was nevertheless brought to trial (though he was acquitted), and Cicero

also the ancient sources themselves. Thus in describing the situation cre

was sentenced to exile as a consequence of his bloody repression of the

ated by the iustitium, Livy states that the consuls (the highest Roman

Catiline conspiracy.

35

50

Justitium

Chapter Three

and decision. The state of necessity is not a "state of law)" but a space
without law (even though it is not a state ofnature, but presellts itself as
the anomie that results from the suspension oflaw).

In tntth, the entire question is poorly put, for the aporia becomes
clear only once we consider that because they are produced in a juddi
cal void, the acts committed during the iustiti11111 are radically removed
from any juridical determination. From a legal standpoint it is possihle
to classify human actions as legislative, executive, or transgressive acts.
But it is entirely clear that the magistrate or private citizen who acts dur
ing the iustitium neither executes nor transgresses a law, and even less
does he create law. All scholars agree on the fact that the senntus consul
tum ultimum has no positive content; it merely expresses a counsel with

(2) This space devoid oflaw seems, for some reason, to be so essential
to the juridiccll order that it must seek in every way to assure itself a rela
tion with it, as if in order to ground itself the juridical order necess<rily
had to maintain itself in relation with an anomie. On the one hand,
the juridical void at issue in the state of exception seems absolutely un
thinkable for the law; on the other, this unthinkable thing nevertheless
has a decisive strategic relevance for the juridical order and must not be
allmved to slip away at any cost.
(3) The cruciJ] problem connected to the StlSpension ofthe law is that
ofthe acts committed during the imtitium, the nature of which seems to
escape all legal definition. Because they are neither transgressive, exec

an extremely vague formula ( videant consules . . . [let the consuls sec to


it . . . ] ) that leaves the magistrate or whoever acts for him entirely free
to act as he sees fit, or even not to act at all. If we wanted at all costs to
give a name to a human action performed under conditions of anomie,
we might say that he who acts during the iustitium neither executes nor
transgress the Jaw, hut inexecutes [ inesegue] it. His actions, in this sense,
are mere facts, the appraisal of which, once the iustitium is expired, will
depend on the circumstances. But, as long as the iustitium lasts) they will

utive, nor legislative, they seem to be situated in an absolute non-place


with respect to the law.
(4) The idea of a force-of-laW.: is <1 response to this undcfinability and
this non-place. It is as if the suspension of law freed a force or a mystical
element, a sort of legal mana (the expression is used by Wagenvoort

be absolutely undecidable, and the definition of their nature-whether


executive or transgressive, and, in the extreme case, whether human,
bestial, or divine-will lie beyond the sphere oflaw.
Let us now try to summarize the results of our genealogical inves
tigation of the iustitium in the form of theses.
(1) The state of exception is not a dictatorship (whether constitu
tional or unconstitutional, commissarial or sovereign) but a space de
void of law, a zone of anomie in which all legal determinationsand
above all the very distinction between public and private-are deacti
vated. Thus, all those theories that seek to annex the state of exception
immediately to the law are false; and so too are both the theory of ne
cessity as the originary source of law and the theory that sees the state
3.6

of exception as the exercise of a state's right to its own defense or as the


restoration of an originary pleromatic state of the law ('(full powers").
But fallacious too are those theories, like Schmitt's, that seek to inscribe
the state of exception indirectly within a juridical context by grounding
it in the division between norms of law and norms of the realization of
law, between constituent power and constituted power, between norm

51

!:
r
,,
'

to describe the Roman auctoritas [\Vagenvoort 1947, 106]), that both


the ruling power and its adversaries, the constituted power as well as
the constituent power, seek to appropriate. Force oflaw that is separate
from the law, floating imperium, being-inforce [vigcnzn] without ap
plication, and, more generally, the idea of a sort of "degree zero" of the
law---all these are fictions through which law attempts to encompass
its own absence and to appropriate the state of exception, or at least to
<ssure itself a relation with it. Though these categories (just like the con
cepts of mana or sacer in the anthropology and religious studies of the
nineteenth and tv.,rentieth centuries) are really scientific mythologemes,
this does not mean that it is impossible or useless to analyze the function
they perform in the lav/s long battle over anomie. Indeed, it is possible
that '\vhat is at issue in these cJtegories is nothing less than the definition
of what Schmitt calls "the political." The essential tJsk of a theory of the
state of exception is not simply to clarify whether it has a juridical na
ture or not) but to define the meaning, place, and modes of its relation
to the law.

t ''
I

4 N Gigantomachy Concerning a Void

It is from this perspective that we will now read the debate be


tween Walter Benjamin and Carl Schmitt on the state of exception. The
exoteric dossier of this debate, which took place in various forms and
at differing levels of intensity between 1925 and 1956, is not very large:

4.1

Benjamin's citation of Political Theology in The Origin ofGerman Tragic


Drama; the curriculum vitae of 1928 and Benjamin's letter to Schmitt
from December 1930 (both of which attest to an interest in and admi
ration for the "fascist public law theorist" [Tiedemann, editorial note,
in Benjamin, Gesammclte Schriften, 1.3: 886] and have always appeared
scandalous); and Schmitt's citations of and references to Benjamin i n
his book Hamlet or Hecuba, written when the Jewish philosopher had
been dead for sixteen years. This dossier was further enlarged with the
pu_blication i n 1988 of the letters Schmitt wrote to HansjOrg Viesel in
1973, in which Schmitt states that his 1938 book on Hobbes had been
conceived as a "response to Benjamin [that hasJ remained unnoticed"
(Viesel 1988, 14; see Bredekamp's- observations, 1998, 913).
The esoteric dossier, however, is larger and has yet to be explored in
all its implications. Indeed, we will attempt to demonstrate that the first
document that must be included in the dossier is not Benjamin's reading
of Political Theology, but Schmitt's reading of Benjamin's essay "Critique
ofViolence" (1921). The essay was published in issue 47 of the ArchivfUr
Sozialwissenschaften und Sozialpolitik, a journal coedited by Emil Led
erer, who was then a professor at the University of Heidelberg (and later
at the Ne,,v School for Socia] Research in New York), and who was one of
the people Benjamin frequented at that time. Now, not only did Schmitt
publish numerous essays and articles (including the first version of The
Concept ofthe Political) in the Archiv between 1924 and 1927, but a careful
examination of the footnotes and bibliographies of his writings shows
that from 1915 on Schmitt was a regular reader of the journal (he cites,
among others, the issues immediately preceding and following the one

Gigantomachy Conceming a Void

[:

53

!
})

containing Benjamin's essay). As an avid reader of and contributor to

'

-.

the Archil, Schmitt could not easily have missed a text like "Critique of
Violence," which, as we will see, touched upon issues that were essen
tial for him. Benjamin's interest in Schmitt's theory of sovereignty has
always been judged as scandalous (Taubes once described the 1930 let

ter to Schmitt as a "mine that can blow to pieces our conception of the
intellectual history of the Weimar period" [Taubes 1987, 27]); turning

( --

the scandal around, we will try to read Schmitt's theory as a response to


Benjamin's critique of violence.

:-

'

4.2

The aim of the essay is to ensure the possibility of a violence (the

German term Gcwalt also means simply "power") that lies absolutely
"outside" (aujlerhalb) and "beyond" (jenscits) the law and that, as such,
'

i-

l'

2-i

t!

t
'

t
1:(
(J;
-

could shatter the dialectic between lawmaking violence and law-


preserving violence (rcrhtsrtzende 1md rechtserhaltcnde Gewalt ) . Benja
min calls this other figure ofviolence "pure" ( reine Gewalt) or "divine)"
and, in the human sphere, "revolutionary." what the law can never
tolerate-what it feels as a threat 1vith which it is impossible to come to
terms-is the existence of a violence outside the law; and this is not be
cause the ends of such a violence are incompatible with la"''\r, but bee<mse
of"its mere existence outside the law" (Benjamin 1921, 183/239). The task
ofBenjamin's critique is to prove the reality (Bcstrmd) of such a violence:
('If violence is also assured a reality outside the law, as pure immediate
violence, this furnishes proof that revolutionary violence-which is the
name for the highest manifestation of pure violence by man-is also
possible" (202/252). The proper character'istic of this violence is that it
neither makes nor preserves law, but deposes it (Entsetzung des Rechtes
[202/251-52] ) and thus inaugurates a new historical epoch.
Benjamin does not name the state of exception in the essay, though
he does use the term Ernstfall, which appears in Schmitt as a synonym
for Ausnahmezustand. But another technical term from Schmitt's vo
cabulary is present in the text: Entsrheidung, "decision." Law, Benjamin
writes, ('acknowledges in the 'decision' determined by place and time a
metaphysical category" (Benjamin 1921, 189/243); but this acknowledg
ment is, in reality, only a counterpart to "the curious and at first dis
couraging experience ofthe ultimate undecidability of all legal problems

54

Chapter Four

[die selfsame und zuniichst entmutgende Erfahnmgvon der lctzlichen Un


entscheidbarkeit aller Rechtsprobleme]" (196/247),
4,3 The theory of sovereignty that Schmitt develops in his Political
Theology can be read as a precise response to Benjamin's essay. While
the strategy of "Critique of Violence, was aimed at ensuring the ex
istence of a pure and anomie violence, Schmitt instead seeks to lead
such a violence back to a juridical context. The state of exception is the
space in which he tries to capture Benjamin's idea of a pure violence
and to inscribe anomie within the very body of the nomos. According to
Schmitt, there cannot be a pure violence-that is, a violence absolutely
outside the law-because in the state of exception it is induded in the
law through its very exclusion. That is to say, the state of exception is the
device by means of which Schmitt responds to Benjamin's affirmation
of a wholly anomie human action.
The rlation between these two texts, however, is even closer than
this. We have seen how in Political Theology Schmitt abandons the dis
tinction between constituent and constituted power, which in the 1921
book had grounded sovereign dictatorship, and replaces it with the con
cept of decision. This substitution acquires its strategic sense only once
it is seen as a countermove in response to Benjamin's critique. For the
distinction between lawmaking violence and law-preserving violence
which was Benjamin's target---corresponds to the letter to Schmitt's op
position; and it is in order to neutralize this new figure of a pure violence
removed from the dialectic between constituent power and constituted
power that Schmitt develops his theory of sovereignty. The sovereign vi
olence in Political Theology responds to the pure violence of Benjamin's
essay with the figure of a power that neither makes nor preserves law, but
suspends it. Similarly, it is in response to Benjamin's idea of an ultimate
undecidability of all legal problems that Schmitt affirms sovereignty as
the place of the extreme decision. That this place is neither external
nor internal to the law-that sovereignty is, h1 this sense, a Grenzbegriff
[limit concept ]-is the necessary consequence of Schmitt's attempt to
neutralize pure violence and ensure the relation between anomie and the
juridical context. And. just as pure violence, according to Benjamiri, can-

Gigantomachy Concerning a Void

55

not be recognized as such by means of a decision (.Entscheidung [Ben


jamin 1921, 2031252] ), so too for Schmitt "it is impossible to ascertain
with complete clarity when a situation of necessity exists, nor can one
spell out, with regard to content, what may take place in such a case
when it is truly a matter of an extreme situation of necessity and of
how it is to be eliminated" (Schmitt 1922, 9/67); yet) with a strategic
inversion, this impossibility is precisely what grounds the necessity of
sovereign decision.

44 If these premises are accepted, then the entire exoteric debate be


tween Benjamin and Schmitt appears in a new light. Benjamin's de
scription of the baroque sovereign in the Traucrspiclburh can be read
as a response to Schmitt's theory of sovereignty. Sam Weber has acutely
observed how Benj<1min's description of the sovereign "diverges ever
so slightly, but significantly, from its ostensible theoretical source in
Schmitt" (Weber 1992, 130). The haroquc concept of sovereignty, Ben
jamin writes, "develops from a discussion of the state of exception, and
makes it the most important function of the sovereign to exclude this"
(den rmszusrhlieflen [Benjamin 1928, 245/65] ) In substituting "to ex
clude" for "to decide," Benjamin surreptitiously alters Schmitt's defini
tion in the very gesture 1vith \Vhich he cl<1ims to evoke it: in deciding on
the state of exception, the sovereign must not in some way include it i n
the juridical order; h e must, o n the contrary, exclndc it, leave i t outside
of the juridical order.
The meaning of this substantial modification becomes clear only in
the pages that follow, where Benjamin elahorates a true and proper the
.

ory of "sovereign indecision"; but this is precisely where the interweav


ing of reading and counterreading becomes tighter. While for Schmitt
the decision is the nexus that unites sovereignty and the state of excep
tion, Benjamin ironically divides sovereign power from its exercise and
shows that the baroque sovereign is constitutively incapable of deciding.
The antithesis between sovereign power [ Herrscherrnacht J and the
capacity to exercise it [HerrschvcrmOgcn] led to a feature peculiar
to the Trauerspiel which is, hmvcver, only apparently a generic fea
ture and which can be illuminated only on the basis of the theory

56

Gigantomachy Concerning a Void

Chapter Four

of sovereignty. This is the tyrant's inability to decide [Entschluflun


fiihigkeit]. The sovereign, who is responsible for making the deci
sion on the state of exception, reveals, at the first opportunity,-that
it is almost impossible for him to make a decision:' (Benjami11 1928,
250/70-71)
The division between sovereign power and the exercise of that power
corresponds exactly to that between norms oflawand norms ofthe real
ization oflaw, 'vhich in Dictatorship was the foundation of comrnissarial

this world, and from it the baroque extracts a profusion of things that
until then eluded all artistic formt1lation . . . in order to dear an ulti
mate heaven and enable it, as a vacuum, one day to destroy the earth
\Vith catastrophic violence" (246/66).
It is this "white eschatology"--which does not lead the earth to a rr:
deemed hereafter, but consigns it to an absolutely empty sky-that con
figures the baroque state of exception as catastrophe. And it is again this

dictatorship. In Political Theology Schmitt responded to Benjamin's cri


tique of the dialectic between constituent power and constituted power

white eschatology that shatters the correspondence between sovereignty


and transcendence, between the monarch and God, that defined the
Schmittian theologico-politicaJ. While in Schmitt "the sovereign is iden
tified with God and occupies a position in the state exactly analogous to

by introducing the concept of decision, and to this countermove Ben


jamin replies by bringing in Schmitt's distinction between the norm and
its realization. The sovereign, who should decide every time on the ex

that attributed in the world to the God of the Cartesian system" (Schmitt
1922, 43/46), in Benjamin the sovereign is "confined to the world of cre
ation; he is the lord of creatures, but he remains a creature" (Benjamin

ception, is precisely the place where the fracture that divides the body
of the law becomes impossible to mend: between Macht and Vcrmiigcn,

1928, 264/ss).
This drastic redefinition of the sovereign function implies a different
situation of the state of exception. It no longer appears as the threshold
that guarantees the articulation hetween an inside and an outside, or be
tween anomie and the juridical context, by virtue of a law th<Jt is in force
in its suspension: it is, rather, a zone of ahsolutc indeterminacy between
anomie and law, in which the sphere of creatures and the juridical order

between power and its exercise, a gap opens which no decision is capable
of filling.
This is why, with a further shift, the paradigm ofthe state of exception
is no longer the miracle, as in Political Theology, hut the catastrophe. "In
antithesis to the historical idea ofrestoration, [the baroque] is faced with
the idea of catastrophe. And it is in response to this antithesis that the
theory of the state of exception is devised" (Benjamin 1928, 246/66)
An unfortunate emendation in the text of the Gcs(Jmmcltc Schriften
has prevented all the implications of this shift from being assessed.
Where Benjamin's text read, Es gibt eine btJrocke Eschatologic, "there
is a baroque eschatology/' the editors, with a singular disregard for all
philological care, have corrected it to read: Es gibt keine . . , "there is
no baroque eschatology" (Benjamin 1928, 246/66). And yet the passage
that follows is logically and syntactically consistent with the original
,

57

reading: "and for that very reason [there is l a mechanism that gathers
and exalt-s all earthly creatures before consigning them to the end [dem
Ende]." The baroque knows an eskhaton, an end of time; but, as Ben
jamin immediately makes clear, this eskhaton is empty. It knows neither
redemption nor a hereafter and remains immanent to this world: ''The
hereafter is emptied of everything that contains the slightest breath of

are caught up in a single catastrophe.


4.5 The decisive document in the Benjamin-Schmitt dossier is cer
tainly the eighth thesis on the concept of history, composed by Ben
jamin a few months before his death. Here we read that " [t]he tradition
of the oppressed teaches us that the 'state of exception' in which we live
is the rule. We must attain to a concept of history that accords wi1h this
fact. Then we will clearly see that it is our task to bring about the real
[ wirklich] state of exception, and this wm improve our position in the
struggle against fascism" (Benjamin 1942, 697/392).
That the state of exception has become the rule is not a simple
intensification of what in the Tmuerspielbuch appeared as its undecid
ability. One must not forget here that both Benjamin and Schmitt had
before them a state-the Nazi Reich-in which the state of exception
proclaimed i n 1933 had never been repealed. From the jurist's perspec-

<;8

Gigan1omnchy Conceming: a Void

Chapter Pour

t ivc1 Gt.n:rHmy found itself technically i n a situation of sovereign dicta

"fictilious" to a state

torship, which should have led to lhc defm itjve aholition of the Wcim<lr

the aim of guaranteeing some dt:grce of individual

that would be regulated

Cont<titution a n d the establishment of a new constitution, whose fun

Const:qut-ntly1 he fi.)rcefuUy denounces the \Vcimar

dmnental characteristics S<.JJmin strove to define i n a series of articles

distinguish benveen the merely f.r1ctual action of the president

b !;'twecn t9:D and

Reich under Article 48 and a procedure regulated by law.

1936. B11twhat Sch mitt could in no way accept was that

the state of exn:ption be wholly confused with the rule. Tn Dictatorshit)

Benjamin once

he had alreRdy stated that a rriving at a correct concept of dictatorship i s

impossible a s long as every kgal order is_scen "only a s a latent and intcr
miltcnt dktatorship): (SduniH 192J, xiv) To
.

uneqoivoo1lly acknowledged the primacy

be sure Political Theology


of the exception, jnsotar i1S
1

of the norinal sphere possible; but if, in this


exception'' (Schmitt 1922, 15f15 ), 'IVhat
then happens when exception and rule become undecidable?
it makes the constitution

t-imately rest::> on an apparatus--..the state of exception---whose purpose

reformulates the oppOsition in

order

to turn

Schmitt. Now that any possibility of a fictitious state of


ex<:eption-in which exception and normal conditions arc temporally
the state of e;;:ception

and locally distinct-has


live" is real and

"in which we

cannot he distinguished from the rule.

fic6on of a nexus between violence and law disappears berc:

sense, the rule "1 ivlS only by tht

Prom Schmitt's perspe<..i.ive the. functioning of the juri dical order ul

59

form acts. The attempt


of

there

is

)n which a viol ence: without

a :t.on e

annex anomie

is unmasked by llenjamln for what i t is: a

excellcr:rce, which daims to maint aln the law in Jts very "mpeH::iHl

is to make the norm flpplicahl c by temporarily suspendi ng its efficacy.

ror:ce-ot-_l<W-- What now takes its pJace are civil war and revol utionary

VVhen the exception becomes the rule, the n1ach ine can no longer func

violence, that is} a human action that has shed r deposto J .;:very relation

ti<)n ln this sense, 1he unded dability ofnorm Jnd exceptiortfi)rmulated


.

to law.

i n the eighth thesis puts Schmitt's theory in check. Sovereign


no longer cap ahl e ofpcrforrriing the task that Political I11eology assigned
it the rule) 1-vhkh now coincides with what i t l ives bv, devours itself. Yet
this con fusion hctwcn lh( txctp!lon and th e rule was precisely

relation to the law at all costs

Hitler pursued the organization of his "duai st.-1te" without pmmolgat-

(In t hi: regar d Schmitt's attempt to


the Fiihrer and the people in
r

define the new materjaf relation bctv.,rc:en

It is from this Pt'f'$\pectivc: that l3eniamin's distinction in the

eighth

of exception tout court

should be read. The distinction was, as we hnve sten 1 already present i n


S(hmil t's discussion o f dictatorship. Schmitt borrowed tht term from

book De !'but de siege, hut while Reinach, referring


11'1.11, opposed an etat de sif.ge
Imlltary) to an <'tat de siege jictif (or political), Schmi tt, i n
his tenadous critiaue of the legaJ state f Stato di diritto], gives the name

Thco<lor Rdn acb's

decret of December 2!j,

the

released and freed from this

OJJ the oth er, must bt just as impl.a-

relation. That ls to say, at issue in the

anomie zone is the relation between violence and law'"in the lasl anal
ysis the status of violence-as a cipher for human action. While Schmitt
attempts every time to reinscribe viol en ce within a juridical context ,

the Nazi llei<h was destined lo


thesis between real state of exception and state

state

on

and Schmi t t

can now he defined rnore dearly. 'fhe dispute takes


in a zone of anomie that) on the one hand, must he me1intained in

Third Reich had concretely brought about, and the obstinacy


a new constitution i.s pmofof it.

The ;-takes in the debate between

4.6

B enjami n responds to this gesture by seckJng every time to assure it-as

pure violence-an existence outside of the law.

For reason,-; that we must try to clarify, th is stn1ggle for <momie seems
to be as decisive for Western politics as the

gigantomachia peri tCs OU

sias, the "battle of ginnts concerning being that defines \'\'estern meta
,"

physjcs. Here, pure vi olen ce as the extrC'rne political objccl


"thing" of politics, is the

as the

counterpart to pure bdng, to pure existence

as the ultimate metaphysical stakes.; the

of the exception tvhich


l

6o

Chapter Four

Gigantomachy Conce1ning a Void

must ensure the re]ation between anomie vio]ence and law, is the coun
terpart to the onto-theo-logical strategy aimed at capturing pure being
everything happens as if both law and logos needed. an
anomie (or al<lgi,:al; zone of suspension in order to ground their ref
erence to the worl d of life. Law seems ahJe to snbsist only by captu dng
as
GUl subsist onl}' by grasping the nonlinguistk.
In both cases, the conflict sem s to concern an empty space: on the one
hand) anomie, ju ridica l v1CUiH11) an d , on the other, pure being, devoid
of any determi nat} ()n or real p red icate . For law, this empty space is the
state of exception as its constltutive dimension. The relati.on betwe(n
norm and renlity involves the s uspesion of the norm, just as in onto)
ogy the relation between language an4 world involves the suspension of
denotation in the form of a langue. But just as essential for the j uridkal
orde.r is that this zone-wherein lit:.s a human Bction without relation
to the norm-coincides with an extreme and spectral figure of the law,
in which law splits into a p11re heing.-in-for..;:e [vigenza] without appH
cation (the forrn of law) and a pure application without being in fOrce:
I he force-of,lm\(.
[f this is true, then the structure nf the state of excepti on is even m ore
complex than what we have glimpsed ofit up to now and the poitions
in ..and for it are even more tightly WO
of the two sides that
ven into each other. Aud jusl as the vic lory of one player in a sporting
match'iR not
Uke a n originary state of the game that must be
restored, but only the stake ofthe game (which does not preexist it, hut
rather results from it)} so pure vio1 crice {whkh is the name Benjamin
gives to human action that nelther makes nor preserves law) is not an
origi:nmcy Jfigrm of hum.:'"ln action that at a cert.-1..in point is ca1tured and
inscribed within the juridical ordt'l" (just as there is not, for speaking
pr cl i rlgtli stk reality thai at a certain point falls into bnguage). It
js) rather, only the stake in the conflict over the state of exception, what
results from it .and, in this W<:lY {)nly) is supposed prior to the law.

61

(that is, about a year before drafting the essay) Benjamin,


jn a letter to Ernst Schoen that takes up and develops mo!i f-s already
elaborated in an artid<. on Sti fter, carefully defines what he means by
f(pnriti' ( Hcinhcit );
January 1919

It is a miii1akc to postulate anywhere a purity that exists in itself and


needs only to be preserved . . , . The purity of a bei ng ls never uncon

ditional or absolute; it is always subject to a condition. This condition

according to the h e lng whose purity is at issue; but this con


diti on never inheres i n the being i tself. ln other words: the
of
every (finite) being is not dependent o n itself. . . . For nature, hu
man hmguage is lhc t:ondition of its purity that stands outside of it.

varies

(llenjami n 1966, 206/138)

This rdational rather than s11bstantial conception of p u rity is so essential for


thal again in the 1931 essay on Krau;; he can write
that "at the
of the creature stmds not purity [ Rrinheil J but pu{ Benjami n 193 1 , 365/455). This means that the
rifi cati on
at i ssue in the 1921 essay is not a substantial cha1acteristic belong
to the violent .adion in itself; that is to say, the difference bet ween
violence and mythko-.iu rl d ical violence does not lie in the violence
but jn its relati on to something externaL Benjamin firmly ;t.ltes
what this external condition is at the beginning of the essay: 'lThc task
of a critique ofviolt'nce ('an be summarized as th<'lt of expo,1nding jts re
latio n to law and justice." Rven the criterion of the "purity') of violence
wm therefore lie ih its reb.tion to law (and the topic of justice in the essay
is, in fact , discussed only in relation to the ends of law).
Benjamin's thesis is thai while mythico-juridical violence is a lways a
means to an end) pure violence i s nrvcrsimply a means--whether legiti
mate o r i llegiti m ate ,...to an end (whether ju st or unjust). 111e c ri t i Qu e of
violence does not evaluate violence in relation to the ends that
as a meons) hut seeks its criterion "in a d istinction within the
means themselves. withont rega rd for the ends
serve" (Benjamin

47

192!, 1791236).

meaning

Here appears the topk- which flashes up in the text only for an in
stant, but is nevertheless sufficient to illuminate the entire piece--of

[t is therefore a!l the more important to understand correctly the


of the exprell)ion -reine Gewalt, "pure violence;' as the essen
tial technical term of Benjamin1S eSSily, What does "pure" mean here? l n.

62

Gigantomi!chy Concerning a Void

Chapter Four

violence as "pure medium;' that is, as the figure of a paradoxical "me


dialitywit-hout ends"-a means thClt, though remaining such, is consid
ered independently of the ends that it pursues. The problem, then, is not
that of identifying just ends but that of"individuating a different kind of
violence that certainly could not be either the legitimate or illegitimate
means to those ends but is not related to them as means at all but in
some different way [ nicht als Jvfittel z u ihnen, viclmchr irgendwie anders,
sich verhalten wiirde]" (Benjamin l92l, l96l247).
What can this other type of relation to an end be? It will be useful
to apply the considerations that we have just developed concerning the
meaning of Benjamin's term "pure" to the concept of "pure" medium
as well. The medium does not owe its purity to any specific intrinsic
property that differentiates it from juridical means, but to its relation
to them. In the essay on language, pure language is that which is not an
instrument for the purpose of communication, but communicates itself
immediately, that is, a pure and simple communicability; likewise, pure
violence is that which does not stand in a relation of means toward an
end, but holds itself in relation to its own mediality. And just as pure
language is not another language, just as it does not have a place other
than that of the natural communicative languages, but reveals itself in
these by exposing them as such, so pure violence is attested to only as
the exposure and deposition of the relation between violence and law.
Benjamin suggests as much immediately thereafter, evoking the image
of violence that, in anger, is never a means but only a manifestation
(Manifestation). While violence that is a means for making lmv never de
poses its own relation with la'i\' and thus instates law as power (Macht),
which remains "necessarily and intimately bound to it" (Benjamin 1921,
198/248), pure violence exposes and severs the nexus between law and
violence and can thus appear in the end not as violence that governs or
executes (die schaltende) but as violence that purely acts and manifests
(die waltende). And if the connection between pure violence and ju
ridical violence, between state of exception and revolutionary violence,
is thus made so tight that the two phlyers facing each other across the
chessboard of history seem always to be moving a single pawn-force
of-:l:aw: or pure means-what is nevertheless decisive is that in each case

63

the criterion of their distinction lies in the dissolution of the relation


between violence and law.
It is from this perspective that we mnst read Benjamin's statement
in the letter to Scholem on August n, 1934, that "the Scripture without
e
its key is not Script11re, but life" (Benjamin 1966, 618/453), as well th
one found in the essay on Kafka, acCording to which "[tlhe law which
is studied but no longer practiced is the gate to justice" (Benjamin 1934,
437/815). The Scripture (the Torah) without its key is the cipher of the

4.8

law in the state of exception, which is in force but is not applied or is


applied withciut being in force (and which Scholem, not at all suspecting
that he shares this thesis with Schmitt, believes is still law). According to
Benjamin, this law-or, rather, this force-oFlaw:--is no longer law but
life, "life as it is lived;' in Kafka's novel, "in the village at the foot of the

hill on which the castle is built" (Benjamin 1966, 618/453). Kafka's most
proper gesture consists not (as Scholem believes) in having maintained
a bw thot no longer has any meaning, but in having shown that it ceases
to be law and blurs at all points with life.
In the Kafka essay, the enigmatic image of a law that is studied but no
longer pr3cticed corresponds, as a sort of remnant, to the unmasking of
mythico-juriclical violence effected hy pure violence. There is, therefore,
still a possible figure oflaw after its nexus with violence and power has
been deposed, but it is a law that no longer has force or application, like
the one in which the "new attorney," leafing through "our old hooks;'
buries himself in study, or like the one that Foucault may have had in
mind when he spoke of a "new law" that has been freed from all disci

pline and all relation to sovereignty.


\Vhat Gill he the meaning of a law that survives its deposition in such
a way? The difficulty Benjamin faces here corresponds to a problem that
can be formulated (and it was effectively fOrmulated for the first time in
primitive Christianity and then later in the Marxian tradition) in these
terms: V\That becomes of the law after its messinnic fulfillment? (This
is the controversy that opposes Paul to the Jews of his time.) And what
becomes of the law in a society without classes' (This is precisely the de

bate between Vyshinsky and Pasbukanis.) These are the questions tbat

64

Chapter f!;;;ur

BenJamin seeks to answer wilh his

of the ''nt.'iV
Obviit is not a question here of a transitional phase that never achieves

5 Feast, Mourning, Anomie

i L-; end1 nor of a process of in fin i te deconstntetion that, in majntain


ing the Jaw i n a spe(.tral Hfe, can no longer get to the bottom of it. The
here is that the law - -no longer practiced, hut studied
js not jt1snce but only the gate that leads to it. \Vhat opens a pa ssagt:

toward justice is not the erasure oflaw, btJt its deactivation and inactivity
is) anoth'-r use of the law. This is precisely what the
the law\vorking

5.1

Roman .,;cholars :and legal historians have not yt:t been able to find a

satisf(lctnry explanation for tbe peculiar semnntic evolution that l e d the

[in opera J beyond its formal

tetm iusti tium--the technical desi gnadoi1 for the state of exception-to

suspension) seeks to prevent. Kafka's characters-and this is


interest us h ave to do with this spectra l
o f the Jaw i n the state
of exception; they seek) each one foHowing his 0r her own strategy, to

acquire the meaning of public monrning for tht. death of the sovereign

wslndy" and deactivate it, to "play" with it.

One dny h u manity wlH play with law just as children play with dis
used objects, not in order to restore !.hem to their canonical nse but to

free them from it li:)r good. VVhat is fou n d after the law is not a more
original use valne that precedes the Jaw, but a new use that is
born on!y 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 a.ll ows us to arrive at
that justice that one of Benjamin's posthumous (ragments defines as a
state of the world ln which the world appears as a gnod tha1 absolutely
cannot he appropriated or made juridical ( Bcnj;nnin 1992, 41}

or his close relative. Indeed, with the end of th e Repnhlic it-Ht1tium


ct:ased to mean the s n spen sion oflawin order to cope with a tumult and
the new meaning replaced the otd one so perfectly
of this austere institution seems to have
of the fDnrth centmy
identi(y the

e nt irely

the gmmmnrian Charisius could therefore

iustitiwn p'urely and ::;irnply with lrutus puiJlicus, And i t is

significant t h at after the debate ra ised

Nissen's and .l\,1iddeH's mono-

as

modern scholars have disregarded tbe question of the iu:,1itium


the state of exception and hnve concentrated solely o n the iustitiwn

as

mourning. (Ironically evoking the tenn's old meaning in his

study of G:crm<1 nku.!i 'S fu neral, VVillia m Seston wrote, "the debate was
rather lively, but soon nohody thought about

it any more" [Stston 1962,

155 ] . ) But how d i d this term that Wii: used in pnO!ic law to

the

suspension of law in situations of the most eKtreme political necessity


(.Orne tA> assu me the more anodyne meaning of a fune ral ceremony for

a death in the family?


Tn an ex tensive study published in

1980)

I L S, Versnel attempted to

answer this question by pmposingan <Hi alogy between the phenome-nol


ogy of mourning-as attested to in the most diverse p laces by anlhro
pological. research--and periods of political crisis, in whkh social. in
stitutions and ruks seems suddenly to dissolve. Just 85,
of anomie and crisis, 110rrnal social structures can collapse and soc.iai
fu nctions and role!' break down to the point where culturally condj
tioncd chaviors and etlstorns are completely overturned) so are peri
ods o[ mourn ing usw.1.lly ch:-tracterlzed by a suspens io n and alteratio n of
all social relations. "Wlwever ch aracterizes the criti cal periods as .

.a

66

Chapt'."r Hve

Feast, Mourning, Anomi;;

temporary substitution of o rder by disorder, of culture by nature, of kos

mos hy th(JOS, of nom.os by physis, of eunomia by mwrnia, has implicitly


ch,qracterized the period of mourning and its manifestations" (Versnd

who in J1is monograph ent it l ed

Suicidr (1B97)

anomie into the human sciences. In

had introdu ced

dde" alongside the otheT fmms of suicide, Durkhdm had. c:>tablisheJ


lation between !.he di minution

tious in the face of chaos. The constant possibility of anornic terro1 is

without providing any explanation) a need of human

collapse"

(58 5),

the iustitiwn's evolution frmn the state uf exception


to

mournim f"YnininPA hv the resembJance between

the manbegs 1he

question), hut the ultimate reason for this resernblancc is then

in the idea of an a nomie terror" said to characteriz,e human sodeties


"

as a whoJe. Such a :onnpt

is as

to account for the

complete phenomenology of cyclical transitional-feasts . . . conform


comphtcly to the definition uf anomy. , , . [Ejverywhere t h ere is a
(temporary) reversal of the hmnan to

the non-human> the cultural


to the natural (viewed as its negative contrast)1 of knsmos to chaos and
of eunomy to anomy. . . , The feelings ofgrlef and disorientation and
their individual and collective expresslons are not restricted to one
cnltun or to one typ of cultural pattern . Apparently they are intrin

sic featons of humanity and the human condition, which manifest


themselves ahove all in marginal o r liminal situations. I would there
fore) gladly agree with V. W. Turnei:\ who speaking of '\mnaturaJ --or
.
anti-cultural or anti structural--evtmts') in liminal situations,
suggests that '(perhaps Freud a n d Jung, in their different ways, have
much lo contribute to the understanding of these nonlogic-al, non

In this neutralization of the


an uncritical

lo he regulat_:d in

their activities and. passions: "\Vhat is characteristic of man is tO. he subic:ct to

a restraint that is not. physical bot moral; that is social. . ,


is disturbed hy some

pa i nful

But when a

rrisis or by bene ficent hnt abrupt transitions, it

is momentarily incnpabl( of exercising this influence; thence come the sudden

rJ,cs in the cmvc of sniddcs which we h ave pointed out . , , , AnomiE', therefore,

is a regu];lr and Sj)('C.ific factor in suidde i n our modern societies (Durkhcim


''

1897> '-79-881252 -8)'

Thus, n<Jt only is the correspondence between anomie and anxJety taken fol'
(while, as we will see,

and folklori:siic rest<'trch show the


r'C

lation to J aw and the social order is also ruled out in advanct:,

The total effects of n1ourning (e.spedally for a chief o r king) and the

19801

corre

but th.: possibility tbnt anomie h as a more intimate and complex

in t!H last analysis, to the darkest >ptwre>

ratinnaJ (but not

inlluencc on indivitiuals

and a rise i n the suicide rate. This was tantamount to postnl;H inr::: (as he does

specificity of the phenomenon


numilwswn were to orient a correct understan.Jirrg

of

out the category of "an('lnk sui

19So, 584-85). According to Versncl, who here dtes the analyses of the
American sm iologists Berger and Lud.;,man, "All sodet.ies I'II'e construe
actualized whenever tht: legitimations that obscure the precariousness

the concept

67

aspects of liminal shuat ions." (Versnel

,5.2

Eq u a Hy madequate nre the conclusions of the study puhlhhed by


a

few yea.r:1 later. The author seems to he awa re of the possible

poHttcal

nf the iustitium as pubJk mourning, insofar a!:i h e

Scston

stages and dramatizes tbc funeral


"Jn imperial funerals therP
Framing t he

as a state of exccplion:
the memory of a nwhlli:ration. . . .

rites within a sort of general mnbillzation, with

all civil affairs stopped and normal political life suspended,


malio:n: of the tustitium tended to transform the <lcalh of a man into a
national catastrophe, a drama in which each person was involved, wiH-

1962,

Th i s intu1t1on, however, comes to

nmnmg1 and the nexus between the two forms of iustitium is accounted
for by once again presupposlng that which was to be explained, that is>
an element ofmournlng implicit in the iustitium from thc st..trt (172-73).
It is Augusto Fraschettfs achievement lo have underscored> in his
monograph on Augustus, the politica] significaw:.e
shuv,ring that the H n k between the two asp("tts of the iwtitium lies not i n
a presumed character o f mourning i n extreme situations o r anomie hut

meamOf

in the tunmlt that the sovereign)s funeral can cause. Fraschetti recov
ers its origins in the violent riots that had accompanied' the funera.ls

68

Chapter r:ivc

f:eas-t, Momning, Anomi 69

of Caesar which were si gn ificantly described. as "sedi tious funerals"

the state

1990,
Just as the iustitiwn was the na l tm.ll response to
turuult in the Repuhlic<.n era "it is clear how the i:ustitium comes to be
identified with llllhlic mourninl! throueh a similar strategy,

omstitutional novel ty of the prirt.:ipatc can th us he sen as an incorpo

,4ugusta are likened to civic cutastror>hes.


of th is is thnt the

hona a nd the mala of a

exception has become lhe rule)J excepti o n a l measures dis


had become the rule" {Nissen

1R77, 140). The

ration of the state of exception and an omie d irectly into

the person of

the sovereig n) wh o begi ns to fre: h imsel f from all sllhordination to th

law and asserts himself as legilms solutus [ tmhound by the laws. L

to be lhe concern of the res puMfca" {57). Praschcui re adily shows how,
in conformity \v:ith this s trategy, Augustus, begin nin g with the death o f
h is neT'lhew Mar.zellus, would proclaim a

iustitium every time the family

-iustitium

On the sen se of pub lic


as nothing o th er tha n t be sovercign)s attempt to appropri

certainly possible to see the

ate the state of exception by transforming it into a family affair. But the
connection is even iUOI'( intirnate an d complex.

53

The intimately anomie nature of this new figure nf supreme power

appears dearly in the theory of the

empsukhos ),

as ('HvJng law"

which is r-lahorated amo ng the neo-Pytbagorcans in the

same years th at see the rise of the p r lncipat c. The formula basfleus nomos
emp<>ukhos is found in Diotogcnl"s's treatise on sovc!ei!5J1ly,

p a rt ! ally preserved

modern theory of sovereign ly must not be underestimated. The usual

Take, ti.1r examp,lel Suetoniuss famous description of Augustus's

ph il ol ogical myopia has p reven t ed the modern editor o( the treatise

d eath at Nola on Au gust 19 of the year 14 CE. The old sovereign sur

from S(eing the obvious

round ed by friends and courtiers, h a s a mirror brought to him and, after

the anomie character of the

having his hair comb ed and his sagging cheeks made up, seems

unequivocally stated in the text. The passage in question-rorrupt in

concerned to know whether he has acted the mimus -v--itae, the tarce o f

his life)" welL A.ncl yet alongside thiS insistent theatrical metaphor, h e
stubbornly and almost insolently continues t o ask

connection between this formnl;;1 aJJd


even

yet nevertheless perfectly consist ent-is divided into three poi.n ts:
"The king is the most iust

r difmiotato$] and the m ost just is the rnost


no o ne can be king, but

(identidem

cns)-with what is not simpJ y a political metaphor--em iam de sc turnul

!s fiJisset, "lf there wa;. now a tumnh outsi de that con cern ed him!'

mourning becomes cumpre


correspondence between the death ofthe
o-f t?J\:ception. The original nexus between tunml

tke is vdthout la_\o/ f m1cu mmwu

Delatte's proposed insertion

of the n egative before dikaiosune is totally

nj ustified philologically]."

'''The just is legitimate, and the king, havi ng become the cause of the
just, i> a livi ng law" (L. Delatte 1942, 37 ),

Th-at the sovereign is a living law can only mean tha t he is not bound

tus and Justitium is still pre.<;ent, but the tum ul t now co in cl des with t be

by it, that in him the life of the law

death of the

genes explains this a l ittle later with unequivocal clarity: "Because the

while the suspension of the law is integrated into

the funeral ceremony. ll is as if the sovereign , who had absod)ed into his
";)nlYlHt, nt>h:mn all except ional powers (from the

tri!nmicia potestas per

to the imperiui11 procons(l/;1rc nuiius

coi.nckhs with a total an om ie. Dioto . .

ki ng has an irresponsible power [arklum rmupcuthunonJ and

is himself

a l iving law} he is like a god among men" (L. Delatte 1942) J9). And
predsely because he is ident ifitd with tlu.7 law, he is hel d in relation to

et infinitum [greater and endless procnnsular imperium]) and. who had,

it and ls indeed p o.<:fi ted as the anomie found a t ion of the Juridical order.

so to speak b come <1 Jiving tustitium, shoWed hi s intimate anomk char

The id(.ntification between sovereign

cter t the mom ent

attempt to asoert the an om ie of the sos>er<:ign

of his death and saw tu m ul t and anomie set free


o Lttside of hi m in the dty. As N i ssen had intl1ited jn a llnrpid formula

essential link to the juridkaJ order. Th(' nomM

{which is perhaps the source of Benjamin's thesis according to which

inal form of the nexus that the state of exceD tion es t ablishes between

is

70

Chapter Five

Feast, Mourning, Anomie 7t

an outside and a n insid e of the law, and .in this sense it constitutes the

sovereign is a tyrant, the magistrate is not in confOrmity will1 tht; law and

archetype of the modern theory of sovereignty.


The correspondence between

the coromunitv is unhatmv. (A. Delatte 192:!,

iustitium and moumlng shows its true!


and if, for this reason,

By means of a complex .strategy, which is not without analogies

tnearring here. If the sovereign is a living nomos,

a n o m ie an d nomos p erfectly coincide i n his person, then anarchy (which


thre<tens to looe itself in the dty upon the sovereign's death} which is to
say, when the nexus that joins it to the law is sttvCred ) must he rhualized

pfthe jewish nomo:::

into iustitfum. Corresponding to t he u ndcdd;l hility

of nomos and anornie in the l iving body of the sovereign is th e unde

Paut's

klti'iris mmrou dikaiosunC;' Diotogenes: m1cu rumwu dikrdnsrmc; and in Pseudo


Archytas the law is defined as a "letter:' gmmma,

sovereign, with

and controlled, transforming the state of exception into public mourn"


ing and mournin g

at times textual: Romans3:?..1 :

sovereign 1, indeed,

law"),

cidabil ity between state of exceptio n and public m o u rning in the

54

Bel:(m.: assu min g its modern form as a decision on the e-mergency, the

other phenomenon, which rep resen ts a symmetrical and in some way::;

rtlation 'between sovereignty and state of exception oppears in the form


of iln i denti ty between the

anomie. Because he is a

and

us

o[ the medieval and modern w-orld) that are characterized by unbridled

is a Jiving: law" found its first fnnnu!ation i n

Hw tna tisc l1y T).scudoArchytas

On

Law and Justice, whkh was

for

Stoh:wm along wlth Diotogencs's treatise nn soverehmtv: Vvbether or not

Grum:>c's hypothesis that these

inverse figurr to the imperial iustitimn }olklorist ;;nd

ria and SahtrnaHa of the dassical world and lhe ch >1 riva ri and Carnival

is the-secret and truer-l ife of the law,

The thesis that "the

an Alexandrine Jew

were

ill thE fitsf century of our era is corted, it is .:erlain that we are

with a

groupoftex!s lhdt, U!ldtrthe cm'eT ofPlatnnicand

seek

to lay the fourHbtkins for a

unbound

by laws ami yet is itself the a source

text this

Tn

is cxpress!'d !n tht' d isti nction between tJ1c sovereign

(hasilcus), who is the law,

and the nugistratc (arkhOn), who

the law. The iilenlifiutlinn

hctweeu the lnw nnd the sov.:reign leads to the division of !he b\V in!o a hiertr-

and a 'Written bw

iaw (Homo.-:

(g;cm.nnw)

that is subordinat\ to it:

overturning of normal legal and social


hierarchies. During these feasts (which are tOund with similar ch8rac-
teristics in

arious epochs and cultures), men dres up and behave like

animals, m asters serve their slaves, males and fem,lles exchange n::>lcs,
a nd crjminal behavior is cono.;ided iicit or, in any C<iS<\ nDt punishable.
That is, they inaugurate a period of anomie that breaks <.m d temporarily

subverts the sodal order. Scholars have always had diftlcuhy explain
these sudden anomi e explosions within well-ordered societies and,
above all, why they would be

authorities.

of an

arkhiJn {the

conunamts), one v, ho is wnnnanded, a nd ,

wllo

Ofthese last, the

(be SOVt"Tt'ign (hu tr/CII C!!IJ'Siiki1/0S ho


one is the kttcr (gmmma ). The law

the tirst dement, the ldng is

tlJ(' mzubtntc is i n conformity (with

the lrtw), the one who is commanded

but if there is any deviation, then the

tolerated by both the religious an d

civil

Contrary lo those int<:rp retations that traced the ano mi e feasts hack
to agrarian cycles tied to the solar cJlcndar {:tvlannhardt, Frazer) or to a
periodic functkm ofpurification (Westermarck) , Karl MeuH, with a bril
liant intuition, 1nst.ead

I say that every comunml!y is

an-

have long been familiar with those periodic feasts (such as the Antheste

law, the so vereign is intimately an0mos. Here too the st ate

The secret solidaritybet\vwn an omie and law comes to

nlatcxl them to the state of su spended law that

chuacti.''rized sorne archak jt 1ridicnl institutions, such as the Gennanic


Frirdln:;igiwit or the persecution of the W(n:g-us in ancient English la1-v.

In a series of exentpl<'ry sludics, he showed how the disturbiinces and


violent acts rneticulously listed in medieval descriptions ofthe charivari
and other anomie phenomena predsely replicate the different phases
of the

ctud ritual in

which

the Friedlos and the bandit were expelled

72

Chapter Five

73

the thre.,hold of indi ffe ren ce between anomie and law. In

from the community, their houes unroofed and destroyed, and their
1vells poi soned or made brackish, The harlequinadt''S described in the

unpreceden ted chatiw:tfj of the Roman de Fauvel (Li un montret san cui
au vent, I Li autre rmnpet 1Jfl rwvent, I L'un mssoit ferw<:tres et hu1B, I
le sel nu pui.t I f/un gctnit Je bren aus visages; I 'Jlop estoicnt
/es et sauvnge.s [One showed his ass to the l'l'ind, I Another smashed a

'

l
f,

I One broke windows and doors, J Anoth er threw salt in the wells,

I Andanotherthrcw filth i n faces; /They were truly horrible and savage] )


cea se to appear as p arls of an innocent pandemonirnn, and one after the
other find t heir counterpart and their proper context in the Lex Baiu
variorum or in t he ptnal statutes of the medieval dtit.s. The sam e

can

be sai d for the acts of harassrnent com mitted du ri ng masked feasts and
children's begging rituals in which children

whoever denied

their obliga tion to give a gift wlth acts of violence that HaUoween
distantly recalls.

is one of the many names (which vary fro m country to


<md rt.""gion to region) for an ancient and widdy diffused
act of popul ar justice, which occurred everywhere in s im il ar, if not
i den tical f<)rms. Such form s are also u sed as ritual punishments i n
Charivar i

wild acts ofharasstn('nt are in truth well--defined traditional ClJStoms


and legal fonns, hy means of which, fron1 time i.mmernorial, the ban

and proscription were carried out. (Meull 1975, 473)


If MeuWs hypothesis is correct, the (l egal ana rchi' of the anomie

':!

:i

'

fe<l.Sts does n ot refer back to ancient a gra rian ri tes, \vhid.1 ln t h m selves

jA

it brings to light in a parod ic fonn the anomie

within the iawJ the s tate

as the anom ie drive contained i n

the very heart of the nonws,

to say, the anomie feasts point toward a :zone in which life's


ma:ximtm1 subject ion to the law is ,reversed into ft'cedom and l icen se,
That is

and the m ost unbridled anomie shows its parodk connection with d1e

nomos, I n othe r words, they point toward the real state of excevtion

as

ing) law and an om ie show their distance and, at the same timej their se
cret soHdarity, It is as if the

universe of l a w-an d more gener.ally, the

sphNe of human action insofar as it h a s to do with law-uitimatly

appeared as a field of forces traversed by two

amj

oi ned and opposite

tensions: on e that goes from norm to ano m ie) and ano1her that leads

country

the cycl i ca l masked feasts and t h eir extreme offshoots, lhe traditional
children's begging rituals; on e may therefore i m m edia tely draw u pon
these for an interpretation of charivari-like ph enornena . A doser
analysis sh ows that what at first si ght seemed s im ply to be rough and

show-ing the

m:oumfu] ch;"tracter of every fea st nnd th e festive character of all mourn-

from anomie to the l aw and the rul e. Hence a double pnradigm, wh ich
marks the fteld

of l aw with an essential amb i guity: on the one hand, a

normative {cw.:lency in th e strict sense, which aim:-. at crysialliz.ing Jtse!r


in. a r i gid system of n or m s wh ose connection lo lif. is, however, prob
l em atic lf not impo11sible (the p erfect state nf l<nv) in which eve ryth in g is
regu lated by norms); and, on th e other hand) an anom ie ten dency that

leads to tlh: stat of exception or the idea of the sovereign as l i vin g law,
in which a

of life.

that is with o ut norm acts as the pun. inclusion

The anomk feasts dramatize this irredu cible am hi gu i ty of j uridical


systems and, at the same time) shmv that what js .at stHke .i n the d.i;Jlcctic
het ween these two forces is the very relation berw-een law an d. lJ fe . They
the an omie throug h which the law
celebrate and parodkaHy
itself to chaos a nd to life on1y on the condit.inn of making itself,
in th e state
life and livjng chaos. And p{rhaps the moment
has come to try t o better understand the constitutive fiction that-in
binding togeth er norm and anomie. law and state of exception--also
ensu res the rdalion between law and Hfe.

Auaoritas an(l Po!H5ftt1

6 N Auctoritas and Potestas

75

to define the pre:sidtnt of the Reich's nentra l powt'T i n the state ofxcep
tion by dialecticallr opposin g rmctoritas an d potc3tas. After recalling that

abl e to appreciate the meaning of the


d i stinct ion Sthmitl lamented (in vvords that anticipate Arendt's argu
men t ) "the lad\. of tradition of the modern theory of the state, which op
poses au thority a nd freedom) authority and democ racy . . . to
of confl 1sing all thorit y with dictatorship" (Schmitt 1931,
his 1928 tre;: tise on wnstitntional law,
position) Schmht evoked its "great importance in the
bot h Bodin and Hobbes wcre still

l n our analysj s of the state of exception i n Rome, we negl ected to


what was the foundation of the Sen ate's power to suspend the law
by means o f the scnatus consultwn uftimwn a n d the consequ,nt prod a
ask

madon

of a iustitiurn. Whoever may have been the subject qualified to

decl are a itlsfitimn, it is certain that it was always declared ex auctorilate

back to Roman law to d escri be it


on the -.nntrary, potestas and imperium derive fro m the

and referred

the

had rmrtoritas;

patrum. Indeed, .it is wdl known that in Rome the term des ignating the
Senate's most pmrer prerog<1tive was neither impcrillnr nor _potr::stas, but

Festm'>e for
noted that the

auctoritas: ouctoriras p(/frum is the syntagma th at defines the speci fic

function of the Senate in t he Roman constitution.


In both the h i story oflaw artd m ore generally, philosophy and
cal th eory, an atte-m pts to def1ne this ca tegory of auctaritas-particuJa rly
in con trast to pntcstas-seem to run into almost insurmountable nhsta
des an d aporias. "It is particuJ ar ly difficult,)' wrote a French legal h isto
.

rian at the heginning of the 1950s, to

modern confusion of uuctoritas and potestas ("two

tbe ongmary

conceived ihdr

1968, 2131) and their cnrw{tgence in the concept


soveltCi Jln t y "was the cause of the philosophical inc(msistency in the

communal lite"

modern theory of the state'"i a n d he lmmediatel}r added tha t this confu


'
sion 'is not onJy academic} hut is dose-ly bound up witb the real process

of the n oti on of mu:toritas hack to a

that has led to the !immtion of tho p olitic a l order of m odem ity" (JJ3),
VVhat we
now try to understand is th e me;ming of this "confl1t>ion"

"What Is Au th ori ty? " with the observat ion that authority h ad
from the modern world1' to su ch an extent that i n the ahsence ofany "au

thnt js h ou nd up with tlu.: reflection

685); and, at the end of that decad e, Han na h Arendt

l hentk a nd indisp utable' experien<:e of it1 "the very term has become
clouded by controversy and confusion" (Arend t 19611 91). There is per
no better confirmation of this confusion---and of the ambiguit ies

that it enta i ls-than the fart th a t Arendt undertook her reeval uation of
a f<'wycars a Ocr Adorno and Else Frenkel-Brnnswick had
condu(ted their frontal attack on ''the a uthoritarhm personality." On the
in forcefully denouncing "the liberal identification of total
itarianism with authoritarianism" (97), Aren dt probably did not realize
that she shared th is denu ndation wi th an au th or whom she C(rtainly
dislike-d,
mue,u, in 1931, in a book bearing the signific an t title Der Hiiter dcr

VcrfrJssuug (The guardian of the constitution), Carl Schmitt had tried

N It is

and polit ical praxis of the WCst.

commonly held opini on that the concept of auctotitcJs i tipccifically

Roman,

it i dkh( to refer to Dio Cassius in ord er to d('Jnonstrflte il<>

lr:mslatabiliry inlO Greek. But despite what is rrpeatedly (i;limcd,


who had

an

un-

Dio Cassin,

t'Kcclknt knmdedge ofRorn<1n law, does not say that the term is

lm

pos::;ible to tnmslate; he says rfl1 her, that it omnot be translnted krllhopax, "onn

and for all" ( hclfCnisai auto kathapnx ndwmton csti [R,wum t-fislory 55-.;v:] ) . The
implicntlon hen is i'hat it mnst be rendertd in Greek with a different term
time, depending on the

each

contr::xt, which h olwio11S, given d1c wide reach of the

concept What Dio has in mind, therefore, is not


fidty of the 1crm bnt the difficulty of leadin::.r it back to a

6.2

The defillltion of the problem is complicated


th e fact th at the
lo a relatively broad Juridic:d ph cnomen ol "

concept of auctoritJJs refers

76

Chapter Six.

Auctoritas and Potesf(H 77

ogy which concerns both

law.

and

our an alysis

It will be best to

and then to see i f it is possible to lead

back to
ln the Sllh ere of

It has been righ tly noted that aur:torita:; has nothing to do with repre

the

two as-pects

whereby the acts performed by u mand<.'ltary or by a legal rep


resentative are i m puted to the m an dator The auctor's act is not founded
sentalion,

auctoritas iS th e orovertv of th e auc-

upon some sort of legal power ve.s{ed itl h i m

to act as a representative

that is, the person sui iuris (the pater famiiias) who intervenes--
pronoun cing the technical formu la auctor fin [ l a m made auctot]-in

s pater. ln the same way, the act of the seller who intervenes as auttor

order to

to defend the buyer has nothing to

tor,

confer legal Vlllidiry on the act of a subj ect who cannot inde
p end en tly bring a legally valid act inro being. Thus, the auctoritas ofthe
tutor makes valid the a-ct of one who lacks this cap ac ity and the auc
,

toritas of the t'i:t.ther ,...authorlzesn--.that is, makes vali&- the marriage of

th( son in potestatc. Analogously, the seller

(in a numcipotio) is b ound

title of ownersh ip in the course of


a daim proceeding involving a third opposing party.
The term derives from th e verb augeo: the auctor is is qui auget)
to assist th bnyer in cot1fhming his

th e person who augments, increases, or perfects. th e act--or the legal


situation-of someone else. In tht. sect ion of h is Imio-Eurnpean [..an
guage and Society dedicated to law, Benveniste so ugh t to show that
originally the verb augeo (which, in the Indo-European area, is
icantly related to terms that e:xpress force) "denotes

not the increase

i1 something which already exists but the net of pmdudng from one's

ln truth, th e
breast; a creative ad) ( Be fl:veniste 1969, 2:
two rneanings are not con tradictory a t aiJ in classical law. Indeed, the
Greco-Roman worl d does no1 know creati o n ex nihilo; rather every act
of creati on always involves sorneth ing else fo rm less matter m' i ncom
creation
or made to grow.
being-that must be

{of the minor or the incompetent): it spri ngs directly from his conditiqn
,

do with a right of guarantee .in the


modern sense. Pierre NoailJes, who had sough t in the last years of his life
to outline a unitary theory of ntrcforita:: in private law, could th erefore
,

write that it is "an attribute attached to the

person, nn d origin al J y to the


. . the
the r ight that belongs to a Roman,
under the required conditions, to ')<-rve as " foundation for the legal sll
physical person,

others" (Noai!les 1948, 274), "Like a ll fh e powers of


private, o r public, auctoritas too

he adds, "be

was orimallv conceived according: to the unilateral modd of law pure

And yet we need only

and

aucto r sum

.reflect on tbe formula

[I am auc-

to realile that it seem s to irnnlv m11'


of a
very person o f th e auctor.

own

as every
errecuve1y written,
self; whether it

a uthorizes or

author is alwavs a

coauthor.

A&

}uctoritas is not suft:idt:.:nt in il


an ex tra neous :1ctivity

that it valid ates (MagdelaJn 1990, 68s). It is, then) as if for omething to
''

exist inl1w there must be

a rel:1tionshlp between twu el em en ts (or two

subjects) one endm,ve d with auctoritas and one th at

auctoritas design ates the mnst


active subjects of this preroga
tive arc thcTef()re the patrcs: mtcf(Witas pntrum nnd {'atres auctores fwnt

6.3

As we have seen, in

p ublic law

proper prerogatiV\' of the Senate. The


[the fathers arc made

auctors l are common f)rmulas for expressing the

constltulional f1m ction of the Senate. Legal historian s. have nevertheless


alway5 hnd di fficulty defin ing this function. Mo.mmsen

observed that
a cti on of it<> mvn bnl can act only in concert
with the magistrate or to complet e the decisions of poputar comitia
th e Senate does not hnve an

ratifying laws. The Senate cannot express itselfw"ithout he i ng questioned

by the mngjBtraks and can only request or '\':ounsel"-c-onsultmn is the

takes the initiative


in the act in the strict sense. If lhc two cl emen ts or two subj ects cojncidc)

technicat term-without this "counseY'

then tbe act is perfect. However, if there is a gap or incongruity between

The f(>rrrmhl of the senntus Cotlsttltum is si cis vidcatur> "if it

them, the oct must be completed with auctoritas in order to be valid.

to them

But where does the ''force" of the auctor come from? And what is. this
j)ower to augere?

ever
seems

fie .. the magistrates!"; i n the ex treme case of the senatus consu}tum ultim um, the formula is
m o re em ph atic: videant consules
the consuls see to
pe cu liar character of

78

Chapter Six

auctoritas when he writes that it is "less than an order and more than a
counsel" (Mommsen 1969, 3: 1034).
It is certain, in any case, that auctoritas has nothing to do with the
potestas or the imperium of the magistrates or the people. The senator
is not a magistrate, and we nearly never find the verb iubere [to orderL
which defines the decisions of the magistrates or the people, used for
his "counsels." And yet, with a strong analogy to the figure of the auctor
in private law, the auctoritas patrum intervenes to ratify the decisions of
the popular comitia and make them fully valid. A single formula (auctor
fio) designates both the action of the tutor that completes the act of the
minor and the senatorial ratification of popular decisions. The analogy
here does not necessarily mean that the people must be considered as
minors under the tutelage of the patres; rather, the essential point is that
in this case too there is that duality of elements that in the sphere of
private law defines the perfect legal action. Auctoritas and potestas are
dearly distinct, and yet together they form a binary system.
N' The polemics among scholars who tend to unify the auctoritaspa trum and the

auctor ofprivate law under a single paradigm are easily resolved if one considers
that the ann logy does not concern the individual figures, but the very structure
of the relation between the two elements whose integration constitutes the per
fect act. Jn a study from 1925 tharhad a strong influence on Roman scholars,
Richard Heinze described the common element between the minor and the
people with these words: "The minor and the people are determined to bind
themselves in a certain direction, but their bond cannot come into being with
out the collaboration of another subject" (Heinze 1925, 350 ). That is to say, it is
not that scholars tend to "depict public law in the light of private law" (Biscardi
1987, 119), but that there is a structural analogy that, as we will see, concerns
the very nature of the law. }midical validity is not an originary characteristic
of human actions but must be conveyed to them through a "power that grants
legitimacy" (Magdelain 1990, 686).

6.4 Let us try to better define the nature of this "power that grants
legitimacy" in its relation to the potestas of the magistrates and the peo
ple. What previous attempts to understand this relation have not taken
into account is precisely that extreme figure of auctoritas that is at issue
in the senatus consultum ultimum and the iustitium. As we have seen,

Auctoritas and Potestas

79

the iustitium produces a true and proper suspension of the juridical or


der. In particular, the consuls arc reduced to the condition of private
citizens (in privata abditi), while every private citizen acts as if he were
invested with an imperium. With an inverse symmetry, in 211 BCE, at
Hannibal's approach, a senatm mnstrltum resnsdtates the impedurn_ of
'
the former dictators, consuls, <md censors (placuit omnes qui dictatores,
consulcs censoresve fuisscn1 Cum imperio esse, donee recessisset a muris
hostis [It was decreed that all who had been dictators, consuls, or cen
sors should have imperium, until the enemy had withdrawn from the
walls] [Livy 26.10.9]). Under extreme conditions (that is to say, under
the conditions that best define it, if it is true that a legal institution's
truest character is always defined by the exception and the extreme sit
uation) auctoritas seems to act as a force that s11spends potestas where it
took place and reactivates it where it was no longer in force. It is a power
that suspends or reactivates law, but is not formally in force as law.
This relationat once one of exclusion cmd supplementation
bet\veen auctoritas and potestas is also found in another institution in
which the auctoritas patrum once again shmvs its peculiar function: the
interregnum. Even after the end ofthe monarchy, when, because ofdeath
or whatever other reason, there remained no consul or other magistrate
in the city (except the representatives of the plebs), the patres nurtores
(that is, the group of senators who belonged to a consular family, as
opposed to the patres conscripti [conscript fathers]) named an interrex
who ensured the continuity of pmver. The formula used \Vas rrs puhlim
nrl patres redit rThe republic returns to the fathers] or m1spicia ad patres
redeunt [The auspices return to the fathers]. As Magdelain has writ
ten, "During the interregnum, the constitution is suspended . . . . The
Republic is without magistrates, without Sennte, without popular as
semblies. Then the senatoricd grollp of the patres meets, and sovereignly
names the first interrex, who in turn sovereignly names his own succes
sor" (Magdelain 1990, 359-60). Here too, auctoritns shows its connec
tion with the suspension of potcstas and, at the same time, its capacity
to ensure the functioning of the Republic under exceptional circum
stances. Once again, this prerogative rests immediately with the patres
auctores as such. Indeed, the first interrex is not invested with the im
perium of a magistrate, but solely the auspicia (356); and in asserting

So

Chapter Six

A.uctorifa and Potesra>

against the plebians the importance of the

auspicia Appins Claudius


,

states that they belong personally and exdusively to. tht:- ptHres privI
tim: "nobis

ruieo propria sunt cwspicia, ut,

, privatim ausJ)icia

habra

aupices belong so properly to us that . . . we have them as


The power lo reactiv<lte vacant potestas
ls not a legal power received from the people or a magistrate but springs
immediately from the personal condition of the patres,
A third institution in whkh

6.5

of suspending law is

tas as the foundation of his status as princeps-tha t we can better un

derstand the meaning o f this uniqne prerogotlve. It is significant that


the tt"birth of modern studies of auctoritas coincides prtdsely with the
publication in 1924 of the A1ommu!!1tum t ntiochnmm, whkh allowed a
more accmate reconstruction of the passflge i n question. The issue here
concerned a series of fragments of a Latin inscription containing a pas
sage from chapter 34 of the

mtcforitas shows its specific fl1nction

lht hostis iudiratio, In exceptional. si! nations where

a Rnman citizen threatened the security of the Republic by conspiracy or


)
treason, he could be dt..>clared fwstis, "public enemy)> by the SCJlalc. The
hosti.o; iudir:atus was not simply llkened to a fOreign enemy) the hostis
alienigena, because the latter was always protected by the ius gentium
[Jaw of peoples l (Nissen 1877,
he was) rather, radicall y deprived of

to death at any moment. What auctoritas

here is

civis, the very s1atus of the Roman citizen.

The relntion-at once antagonistic and supplementary--between


auctoritas and potcstas is finally shown in a terminological peculiarity

that Mnnunsen was the first to notice. The syntagma senatus auctoritas
i used in a technical sense to design<Jte

Stnatus conmltlfm that, be


cause it has het'n opposed by an intcrassio, is without legal effects and
a

can therefore not be executed (even i fi t was entered as such among the
official act.;;) auct(wffas perscripta), That is) the

auctorita.s of the Senate

app('<'rs in its purest and most perspicuous for m when it has been in
validated by the potestas of a magitrale, when it liw as mere writing in
absolute otmosition to the law's heing in force I vivenza I. I'or a moment
here auctoritcJs shows its essence: the power I potenza j that can at once
lcgit'imacy" and suspend law exhibhs its most prop.r character
at the point of its greatest Jegal inefficacy, It is what n::m ains of law if
law is wholly suspended (in this sense, i n Benjami n's reading of Kafka)s
allegory, not law but life-law that blurs at every point with life),
6.6

It is perhaps in the mtctoritl.is prindpis-that is, tn the moment

when Augustus, io a famous passage of the

Res gestae, claims

auctori-

Res gestaJ which was extant in its entirety

in the Greek version. Mom.msen had -reconstructed the Latin text


in these terms:

patestatis

id

omnif,us rl.ign itnte (a:xi0matil


qui fi_tenmt milli quoque in

tmws titi

autem nihil atnplius ltabui quam

After that thne I surplSScd all in

magistratu

although

l had no more potestas than those who were my colleagues in each mag

." The Antiochean inscription showed that Augustus had written


di(!'HitMe but mutoritate. (:;ornmenting in 1925 on the new jnforma

philologists should all he ashamed for having

and could th.erefore he stripped ofhis belongings and put


juridical order, but the ius

81

followed Mommsen's a11thori1y: the only possibJc antithesis to


jh)testas-that is, to the legal power of

magistrate-- Was) in thi: pas

sage, not dignita:;, but auctoritas" (Heinze 1925,


As often happens---and, moreovt."r) as scholars d i d not fail to oh
senrt'-fhc rediscovery of the concept (no fewer than fifteen important
monographs on

auctorifas appeared in the foilowing ten years) kept

pace with the gro\ving "Ne.i ght thM the authoritarian principle
St1m.ing in the political life of European societies. 'Auctoritas.''
German scholar in

1937, "that is, the fundamental concept ofpuhlk law

in our modern authoritarian states, can only be tmderstood---not


also as regards the C()ntent---starling from Rornan law .:1fthe
time of the pri ndpate" (Wenger 1939, 152). And yet il is possible that this
nexus bet\veen Roman law and our own political experiew;e js pn.:cisely
what still remains for us to investigate.
6.7

Tf we now return to the passage from the R.es gestae, the decisive

point is that here Augustus defines the specificity of his constitutional


power not in the cerlin terms o.f

potestas. which he says he shares

wjth those who are h i s colleagues in the magistr;:cy but in the vaguer
tetms of an audoritas. The menning of the name ''Augustus,>' which the
Senate conferred on h i m on January 16,

:q HCE, accords entirely with

Sz Chapter Six

Auttflritn.:; and PotttStas

83

this daim: it comes from the same root as augeo and auttor and, as Dio

h i m smn et bing likt"!

Cassius notes, "does not n1ean a p ntestas I dunamis 1 . . . but shows the

which one must interpret the fact tht.lt a signum to Vesta is d..dkat(d in

splendor

of auctoritas l ten tou axitm!fltOS lrunproteta r (Roma n

the hous e of

5J.lll. 2),

private life and domus. This is also the sense in


on the Palatine. Fraschett i has rightly observed

that, given the dose connection helwei:'n the cult of Vesta and the cult
of th e s<1rneycar, in whlch he declares his in-

of the puhlic'Pcnates of the Romfln people, this mtant th at the Penates

republican constitutiOn, August u s define;; himself

of Augustus's f,unil y we re Jdendfied with those of the Roma n people

l n the edict ofTannuv


as opmm sfMtts

auctor [auctor of the hig hes t

As Magdelain

has acutely ob>erved the term auctor here does not have the

and that t herefore "the private cults of a family . . . nnd preemi.ncntly


communal c ults in the sph ere of the
(tlwse- of Vesta and the public

mea ning of "founder" hut the techn i cal meaning of ''g uaran to r in .a

P<>nates of the Roman people)

numripatio.'' Becanse Augustus conceives of the restorat io n of the Re-

go us In the house of Augustus" (Jrasch etti 1990, ;;9), Un like the l ife o f

as a transfer of the res publica from h is hands to those of the peo

the cornmo n citizens, the ":augu;t'J Ufe c a n n o longer b e ddined through

ple and the Senate (see

aurtor npthni status .

Resgestae 34.1 ), .it is poss ible that "in the formula

. . the term

twctor has a rat he r precise kgal mea n

ing and refers to the idea of th e transfer of the res publica . . .

. Au gustus

would thus be the auctor of the rililits render ed to the people


Senate, just

<JS,

in a mandpation, the mcmripi(l dans

b the

and the

auctor o f the

power acquired by t he mandpio accipiens over the transferred


(Magdelain 1947,
In any case, the Roman principate----which we are used to describing

of the rnagis

tratc--is not a m<gistracy1 but ;:,n extreme form of auctoritrts. Heinze has

with a term (empero r) that refers back to the imperium


described

this contrast perfectly: "Every nltlglstracy is a preestabhshed

form, whkh the individual enters into a n d whkh constitt1 tcs the source
of his power; mu:toritas, on the other hmd, springs from the person)
as something th;tt is const ituted through him, lives only in him, and
disappears ""th him" (Heinze 1921,

356). Though

and the SenGte1

magistracies. from

Augustus receives all

mtdoritas is insh'ad bound

to his person and constitutes him as rwct(lr


gitimates and gunrantee.s

!he whole of Roman political

Hence the pecu]iar status of his person) which rnanifests itsel f in a

u ld seem in fact to become hernolo

vvo

the opposition of public and private.


N It is in this light that K:mtorowicz's

of the king's nvo bodies slwuld

be rfnad, so thn t we UHJ l1"1:tke some refinements to it Kantorowicz ('who gen

r;.dly undervalues the irnportnnce of the :Roman


he seeks to reconstruct for the

to the the(l'fY iJJat

and F!'C'nch monnrchies) ;.:loes not relate

the distinction bmveen !!tltMrif(1s and pntestm to the problem ofthe ldr1g's two
bodies and the principle

non moritur [dignitas doe not die], itnd yd

bcc:iu;Sc the sovereign wa first ami foremost the embodir1ent of

it is

an tmctoritas, and not solely of a 11!'/Ntos, th<H ouctorilfis

to his physica l person, thus


w<J:x double of the owreign in

was

o closely hound

lhe wmpliated ritua l of constructing a


imaginoriwn. Th e end of a ml'lgistracy

as sudt does not {;ntaii a pmblem of bodie.<; at aU: One rmgist rat<; stKce.ds

an

otlH:r '.vithont having to pn'Htppnst:> the immonality of the office. Only because
from

the Roman princrps on, the ::-ovt:rdgn expre1.ses 2n aurtoritas in hi very

person, on!ybe..-:mse ln "august" life p11bHc and private have entered into

z.t1 ne

of n bsn lute indistinction, docs it becomes necessary to distinguish two bodies


in order 1'0 en su re the continuity of dignitas

(wbich i.s

simply a !'.yrwnym for

auctori!i!S).

'lb unde rst11 nd modern phenomena such as the Fascist Dure and the Nazi

fact whose importance has not yet been fully appreciated by scholnrs.

Flihrer, it is impnrtaut not to

Djo Casslus i n forms us that Aug\IStus "maJe all of his house p nh llc i ten

mtctorims prinripis, As we have already observed, eveH

oikirm cdCmns1bse p asa nJ

the office of head of the governrw:nt and Hitler tb<1 t of chancellor of the Re

. . so as to H.ve at once in public and in

Mus...;;olini held

kai en tois koinois oikoief' (Rrmrm History

ich (just as Augmtus held imj)rrium rons(llare or potcstas ttihm1ica) neither the

h is the auctorilns that he tmhodies) and nol the magistrades

Duce nor the F'ithrct reprl?l'en !s a cous:titutionaHy defin ed pnhlic nffke or mag

vate [hin' en tois idiais hama

55.12.5).

their continuity with ! he principle of the

with which. he has he:en invested,

that make: h imp os sible to isoJate in

istntcy. The qualities of /)uce or Pif!m:r are immediately bmmJ tn the

Chapter Six

84

Auctnrittt,t and Pvtestas

hinpo1Wca1 1radition of rmctoritas and not to the legal

person

85

always orlgi nn ry and sprin gs from his p erson ; furthermore, in its essence

had
it .is not coercive, but is rather founded as
on coiJSent and th e free
of a ''superiority
6.8

H is s igni fi ca n t that modern scholars have been so ready to uphold

Though both Triepel and De Frandsci had fascist and Nazi tech

the claim that aucforitas iuh eres immediately in the l i vi ng person of the

niques o f government before lh cir eyes, n eith er appears to have

to grou n d the preemin ence or, in any case, the specific rank of auctori

ity fron1 the suspension or neutralization of the juridical order-that

pater or the princeps. What was dearly an ideology or a fictio intended

aware that the power they describe attain's its app ea ra nce of original

tas in relation to p otcstns thus b ecomes a figure oflaw's immanence to

ls,

life. lt is not by chance that this shoulcl h appen precisely in the years

to Foul's k!wris

HCharismaw a s its reference


Weber knew p erfectl y well) could have
the neutrali:cation of1aw and nol wilh a more

u lti mately, from the state

when the authoritarian p rinciple saw an unexpected rebirth in Europe

CXCC!>titm.

through fascism and National Socinl ism. Though it was obvious that
there cannot be so me sort of eternal humnn type periodlcaHy embod
ied in Augustus, Napoleon, or Hitler, and that there are only more or

authoritarian-charisrnJtic nnw,.r '"''""'

less similar l egal apparatuses (the sta te of exception. the iustitium, the

person of the FUhrer, ]..."1\,ls dai m that it coinddes at an em i nent

auctoritas principis1 FUhrcrtu m) tbat are put to use u nder more or Jess

di fterent drctlmstances, the power that Weber cal led ('charismatic'-' wa s

nevertheless lin ked i n 1930s Germany (arHl elsewhere) to the concept


of auctoritas and ela horated in a theory of Piihrcrtwn as the origin ary

and person al power o f a leader. Thus i n 1933, i n a short artide that seeks

to o utli n e, the fundamental conce11ts of National Sodalisl-n, Schmitt de


fines the principle

of Fiihnmg through "the ancestral i den ti ty between

leader and followers" (note the use ofWeberian co ncepts) . 1938 saw the
Heinrich Triepel's hook Die Hegemonic,

ui<:Hy n"'iewed. !n its first section, the book exp oun d s a


theory of Filhrerft;m as an a uthority founded not on a preexisting order

but on a personal charisma. The Filhrrr is defined throurrh Psvcholooiand creative will),
cal
the social group and the
a n d p ersonal character of his power

with life could not have been affirmed more

forceiully. In this regard,

the theory of aucf(lritns


at least in part wjth the tro.di tlon of
inridicn1 th(lught !hat saw l<'IV\' as ultirnately identica1 with-{}!' imrneartkulated t<>--life.

maxim C' Law is nothi n g hut life

comJdcr<-d from a pa rti cular point of v i ew))) finds a cmmte-11HU"J. i n the


twentieth centnry in Rud olph Smend's thesis that "the norm re;,;:eive--11
the g rou n ds o f its validity [ Gcltrmgsgrund], the qWll it y of its vali dity,
and the content of its validity from life and the sen se attributed. to it,
as, invcr:scly, Hfc r11us t be understood only in relation to ils Assigned
and regulated vital sense [ LelJcllssinn]" (S mend 19_56, 300). Just as, i n
Romantic ideology, something like a lan gu age became fully compre
hensible only in its immediate relation to a people (and vice versa). so
la;,v and life must be tightly i mpli cated in a reciprocal grounding. The
dhllectk of auctoritCis and pnte.stas expressed precisely this implicatio11
(and in this sense, one can speak of an originar y hiopol.itical character

art strongly uudcrscoret1


Then i n 947 th e elderly Ro man scholar Pietro De Francisd pub

of the p ;uad igm of auctoritas). The norm can be appl ied to the norm<11

imperii, i n whkh be dedicates a ROOd deal of space to a n

situation <-m d can be snspendcd without total!y annu ll i ng the j u rid ical
order beca use in the form of aurtoritas1 or sovereign decision) it refers,
immediately to l i fe it springs from life.

(5>eeking to distance him


self from fasdsrn with a sort

defin es

as

ductus {and the

leader in whkh il is embodied as

De Pnmcisci transforms the


of power (traditional, leg al , charismatic) into a
d i ch otomy drawn on the opposition of authority and power [potesta].
The authori ty of the ductor or the Fiihrcr em never be derivative but is
Webedan tripnrtition

6.9

It i s pe rh aps possible nt this poi nt to look hack upon the path trav

el ed thus fiu and dr aw s ome p rovi sional conclusions from our investi
gation o fthe state o fexception. The ju ridical system of the West appears

86

Chaple; Six

Jln.:torita$ nnd Potestas

as a dot1hle slructure, formed by two heterogeneous ye't coordinated el"

ements; {)fle thlii t is normative and juddka] in-the strict sense {which we

1:!7

time. Indeed tht.. slate of exception has today reached its max imum
\vorldwidc depJoyrnent. Tht> nonnative aspect of law can thu.s be ob l iter

can for conveni ence inscribe under the ruh rk {lotrstas) a.nd one that. h>
anoniic and mctajuridkal (which \YC can call by the name uuctoritas).

while ignnri ng i111ern:1 t ])naJ hnv externally and producing a perm<ment

The notrniltivc element needs the anomie element in order to be ap

state of excertion internally-ntvtrtheless stilJ claims to be armlying

ated and contradictl:.d with im punhy by a governmenWl vioJcnce that

but1 on the i)ther hand, ourtoritas can assert itself only "in the val
jdation or suSpen sio n of potestas, Bec.mse it results from the dialectic

the law.

between these two sotnewha t antagonistic yet ftmctionally connected

\vithin its spatj;1l1]' and temporally dl!'fined boundaries i n order to then


reaffirm the primacy of a norm and of rights that are themselves uJti

clements) the ancient dwelli ng of law is fragile and> in straining to main


tain its own ord e r, is always already in the process of ruin and decay. 'T'he

Ofcourse, the ta'k ai hand is not to

the s tate

back

mately grounded

state of exception is the device that must ultimately articulate and hold

it is n ot possible to return to the state of law

together the two aspects of the juridico-political machine by instituting

now are the very concepls of "state" and "law.n But if it is

a threshold of undeddabllity between anomie and

attempt to h a l t the machirl<', to show its central fiction, this is hcGlW>e

nomos, bet\Vt2en life

for at issu,_

di

to

and law, between auctoritas und potestas. ft is founded on the essentiaJ

between violence and l aw, hetwe-en me

or the fOrce oflaw) is still related to the juridical order and the

suspend the n orm has an immediate hold on life. As long as the two el

articulation. Alongside the movement that seeks to keep them in rela


tion a t all cos1s1 there is a countermovement that} working in an iwerse
direction in law and in life al ways s{eks to loo"cn
has been artifi-

ements remain correlated yet conceptuaUyj temporally, and subjectively

and violently l inked. That is to say, in the lield of tension of uur

fi'ction accOfd.ing to which anomit {in the form of rwciorltas, living law,
to

there is no suhstantinl

ure, tv;o o pp05ite force;; act} one that insti111tes and makes, and one

distinct (as in republican Rome)s contrast between the Senate and the

cult

people, or in mcdievni Europe's contrast b ehveen

that deactivates and deposes. The stnte

powers) their dia]('Ctk"' t houh"foumlcd on a ficti on-ca n nevertheless

their maximu m tens i on andas it coincides \vith the rule--that which


threatens today to render them indiscernible, To live in the state of exmeans to exptrif'ncc b o 1 h of thf>'lc possibilities i1 nd yet, by alw:lys

function in some way. But when

tend to coincide in a

son when the state

per-

are bound and bJorred

is bnth the pnint of

together, becomes the

separating the two forces, ceaselessly to try to i nterrupt the working of

itself into a kiUJng machine.

the machine that is leading the West toward global dvil war.

6.10

The aim of this

the urgency of the state of exto

of power ! par excel1cnce of our tirne. What


the "ark" of power contains a t its <:enter is th e state of eK<cetti<m--tmt
thi s is essentially an tmpty space, i n which a human action witL no f('
lation to law stands before a norm with n o re1atkm to Hfe.
This does not mean that the machine, with its empty cen ter, is not
effective; on the contrary, what we havC' sough1 to show is precisely that
it has continued to fttn\tion almost without interruption from V\'orld
VVm

One, through fi1sdsm and National Socialism, and up to our own

life and law, betwel.'n


anomie and noma:>, thai is prod tHTd by the state of excepti on is effCctivc
th ough fictional) one can still not (:Olldude from this that some wh rre
either b eyond or before j uridlc o l nppmatuses there is a n immedhlte ac
cess to something whos e iiartm-c and impossible unification are repre
sented by these appartuses. There are not first life as a natnr::d hio1og
ical given and anomie as the state of nature, and then thei r impHcati.on
i n ]ow through the state of exception. On th e contrHry, the very
bllity of distinguishing life and law, :momic and ncmws, coincide<; with
6.11

Tf it is true that the articulation b etween

their articulation in the biopo.litical madtine. Bare l i fe is a product of

88

Chaplr Six

References

machine and not something that preex:ists it, just as law has no court in
nature or in the divine mind. Life and Jaw) :.womie and nomos, nuctoritas
and putestas, result from the fracture of something to whkb we have no
other acctss than through the fiction of their articulation and the
work that, by unmasking this fictiont sep11rates what it had dairned to
unite. Hu1 disenchantment does not restore the enchanted thing to its

AranioRnir, Goet:mn- 1913. htitwhmi di diritto rostifuzioulll(' italim1n. RrJlrlnt, Milan:

original state: According to the principle that purity never Hes al the
disenchantment

it

Boc,;a, 1972.

possibility of reaching a new

A rendt , H:m nah .

con<1iiion.

1b show law in its nonrelation to Hfe and Hfe in its nonrelation to

1\eng:el, J()hann Albre-eht 17.1+ urcrle xm ffandamgabc del" s:_ricc!Jisdvn N. T.

law means to open a space between them for hUinan action, which once
claimed

Benjamin, Walter. 1_9:n Zur Krit ik der f;..,walt. In Tit:demann uml SchwcppenhiiuS:?r,

itself the name of "politics:' Politics has suffered a lasting

Gesmnnuite Schriftrn, vo1. 1., pl. 1. 'fbnlatd by Edmund f<:'phcott ;\>. Critique of
Jt'nnings. 01mhridge: Ha1v:nd Unit'eTsity Press, Belknap Pn'"'l, l9:J6,

conslituGnl power (that is, violt'nce that makes law)1 when i t is not

J92S

reduced to merel y the power to negotiate with the law. The only truly

Tmgic I>ramtt Iondvn: Verso, 199i!.

lence and law. And only beginning from the space thus opened will it

1931. Kilrl Kraus. ln Tiedemann and Sdnvcrp-:onhiim<>r, Gesamme!tc SrhriftNt, vol.

be possible to pose the question of a possible use o f Jaw after the deac

z,pL 1. Translated by fdmnnd Jephc1>H il S Kari Kr:ms. In Schxted \Vritings, voL 2,

tivation of the d{vice that) in the state of exception tied it to life. We

<9Vl914, ed, Mkhael W. Jf'rmjngs,

-. 1934- Franz l<;1ffia In Tk{lcman n w


r d Sdrw.;ppcnhi'itlS<'f, G-1sommdtc Schrfttn,

vnl. 2, pt. 2, Ti::mslated by H11rry?.nhn ;:;; Fnmz Knfk1. In Scfl'rtcd 11lrithrgs, vol. ?., r:d.

nrtt'hnd, tbat neither commands nor prohihits anything, but says

Mkb:HI W. Jenning.'\, Hownnl Eilnntl, and Gary Smith . Cambridge: H1rw1rrl

would corre:.1lond an action as pure means which shows only it

University Prs. Belknap Pres1;, 1999.

self, withont any relation to an end. And, between the tvm1 not a lost

1142. Obcr den Bcgriff df'r Gescbichtc. In Tit'demann and Schwtppt>nhihJscr,


Ges11mmeftc Srhriften, vol. 1, pt. 2. "(bnsl::tcd hy Harry Zohn as On lh<: concept o[

use and human t'ra:xis that the powers oflaw


to capture

Ht>Wan::! Eiland, and GarySntiHI, Cambrldge:

Harvard tJnivernity Pres<:r, lk!knnp Press, 1999,

which Benjamin

of a ''pure" language anti_'a ('pure" viole-nl".':e, 10 a word that does

and

Urspnmg des deut;clum Trrwcrspie!s. Jn Tidernann 'ln;l Schweppenhi!nser,

Gtsammcltc .Yhriften, vol. 1, pt. 1. Trnn1a!ed by John Oshorne a5 111c Origin of Geruum

political action) however, is that which severs the nexus between vio

vvill then have h e fon us a "pure'' law, l n the sense

vol. 1, J913-l926, ed. Man:m Hnllock and Mkhad W.

violence. ln Selccte>d

eclipse because it has been contaminated by law, seeing itself, at best,


as

1961. BetW('Cit Post rmd Future. New York: Vildn[).

Halladore"Pollieri, Giorgtn. 197(), Uirilfll co.>tituzionalc. Mil:m: Giuffre.

hi_<;tnry. ln Sf.!ected H'ritfngs, vnl. 4, l?JR- l')</f;l.. ('<L Howatd f:ibnd i\nd Mkhad \V

in the state o f exception.

Jennings, Camh ridg Hnrv;mt iJniwrsity Pres,:;., Relknap Press, ::!003.

---.., 19M-. Bn:ife. 2 vo!s,


Main:

Bd.

G1rhom S,;:hnlem and Theodor W, Ado! IU). frankfhrt am

Snhrkarup. Th<tmlGtcd by 1\hmfred R . J:u:nbson and Jl:ndyn M, Jacohson ts The

Con,>sprmdr:nrr ofWn/t(T Bf'njamfrr, (;(t G;;;J;shnm Schnlem a1id TheOOor W. Adorno.

Chinlgn: thrivo,witynt
t972- S9.

::';: :

Gesammdte Schr
c . ij/ nt

1994.
7 vol\. Ed. R0lfTiedemann

and Hermann

Schwcpprnhdus,;.T, Fra nkfort am Mu!n: Suhrkamp.


-"-.

199:L N0then ;;n dnel:' Arbdt Ubicr die Kateg:orie der Gerechti!:',kf'lt J!mnkfurtcr

Adorn:; Blittt.r 4

Benveniste, (mile. 1969. Le Vomhtilairr do::s [!1:-titutiom indo-eumptcttMS. 2: vub.. Paris:


Minuit. Translatrd by Eliznheth Palmer a s Dulo f:uropNm rnngw1gr: mul Sodery. Coral
Gnhles, Fl.: University of Miami Prths, wn

j-

90

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Index

Adtlrno, Theodor Wiesengrund, 74

C:hantrmps, Camille, 13

Antigone, 28

Cicero, 42, 45, 49

Appius Claudius, So

Edonnrd, 13

Arangio-Ruiz, Gaetano, 29

Daladier,

Arendt, Hannah, 3, 74, 75

Dante Alighicri, 26

Augustus, 67-68, 80-83, 84

De Francisci, Pietro, 8485

Aulus Gellius, 41

de Gaulle, Charles, 14

Balladore-Pa!Heri, Giorgio, 23, 30

De Martino, Francesco, 1

Bengel, Johann Albrecht, 40

Derrida, Jacques, 37

Benjamin, Walter, 3, 6, g, 37, 52-64, 68-69,

Dio Cassius, 75, 82

Delatte, Louis, 69

So, 88
Benveniste, Emile, 39,76

Diotogcncs, 69-70, 71
Dossetti, Giuseppe, ro

Berger, Peter L., 65

Duguit, Leon, 26, 29

Bethmann-Hollweg, The.obald

Durkheim, Emile, 66-67

von, 26
Biscardi, Arnaldo, 78

Eichm;mn, Adolf, 38

Biscaretti di Ruffia, Paolo, 23


Blum, Lton, 13

Fleiner, Fritz, 16

Bodin, Jean, 75

Fontana, Alessandro, 1

Bonaparte, Napoleon, 4, n, 84

Forccllini, Egidio, 42

Brmm, Otto, 15

Fouc;mlt, Michel, 63

Brcdckamp, Horst, 52

Franco, Francisco, 48

Brlining, Heinrich, 15

Fraschetti, Angus1o, 6768, 83

Burckhardt, Walther, 16

frazer, Sir James George, 71

Bush, George W., 3, 22

Frenkel-Brunswick, Else, 74

Butler, Judith, 4

Fresa, Carlo, 16, 18


Fret1d, Sigmund, 66

Cains Gracchus, 49

Friedrich, Carl )., 6, ?-8, 47

Carre de Malbcrg, Raymond, 23

Fueyo, Jesus, 75

Catiline, 49
Cavnignnc, Louis Eugene, 12

Gndnmcr, Hans-Georg, 40

Chnrisius, 65

Gaius, 38

Chnteaubrind, Franyois Rene de, 11

Germ;micus, 65

.
94

Index

rw.lex:

Gratkm, 24, 2526

Mommscn,

\';mppt.'c, 0. E, 70

Mom, Ahl;t, 1S
Mnrtati, Coqnntino, t3
Mnsr.olini, Bt>nito, 48,83

Hanniha!, 44, 79

H,n:;chek, )u!:ius, 73
i fauriou, Maurice, 23
Hcim.e, Pichrmi, 7ft, 81, 1\2
Hindrnhurg, P11ul von, l)
Hi1, Edmml, 16
Hitler, Adolf, z, 14, 1_r;:, J8, 48,

4.8, 49.
Thcodor, 424;:, .p,
.

77-78, Sn, 81

Seston, William, 65, 6?

U1pian, 3S

Srrwnd:, ludolph , )

St:10hr, Werner, 3

Vr:nmel, H. S., 6500

Sw!in, Jmt'ph, 48

Viesd, Hamji)rg, s:t

Stifter, Adalbert, 61

Vyshinsky, Andrd Ymuarievich, 63

Stobacus, loannes, 69, 70

Ntlpoleon Ill (Lm1is Napoleon Bonaparte),

Suetnniu, 68

VI/;1JjCUVOMt, H., 51

Niscn, Adnlph, 4?, 4S.-46, 47, 48:, 49, 6'5.,

Tanbes, Jacnb, 53

Watkins, Frederik M., 6

"f1tiilmann, Ernx!, 15

Weber, Max, S:j, Rs

Noai11C', Pierre, 77

Thomas Aquinas, Saint, 24-Z5

Wt"her, Samuel, 5')

Wa!dkirch, F.dnard Ottn von, 16

"
58,

83,84

6&69, llo

Hohh<'s, 'fhoma:, 51, 7>

l-lot't'ni, Robert, 16, 2)

Opimilh, Lv;;ius, 49

Tlberim Gnechls, 44, 49

Wenger, Leopold, 81

Tjedcm;mn, Rolf, 52

Wcstcrm<1rck, Edward

'f"in!tslfl, Herbert, 6, 7,

lung, Carl Gustav, 66

Papen, Franz vnn, 15


l\uhutnnis, F.vgcny, (13

Justinian !, :i7

Pattl, S:1lnt, 6:{, ?f, 8')

Jdl!nek, Georg, 26

Pktain, Henri Philippe, 14

Kalka, Pra nz, 63, So


J<;mt, ltmnanud, 39
Kantomwkz, Ernst, 83

Phmmann, Gt;rhard, 43, 47, 48


PoincilrC, Raymon d, 'J2, 13
Pomponins, :{8

Kohler, Josef; 26

Preuss, Hugo, (.., 14

Knw, KarL 61

Vseudo-Archytns, 7o-71

Laval, Pierre, 13
Rmil, 52'
Lenin, V1ad}mir Ilyick 34
tb:i Stmu&s, Claude, 57
Lln ,oln, Ahraham, ?.()<.I.J

Qmulri, Giovnnn1, 3S

Livy, 12, 48----49, 79, 8o

RMsevelt, Frankl in D., 2122

Ludnmnn, 1'hnrna!:, 65

nossiter. Clinton L, 6, 8--9, 13, 18, :20, 1J., 47

Machiavelli, Nkcol6, 4 6

Saint-Bonnet, Franois, 1

l'v1ncMahon, Made RdmC Pa1rk ;:le, 12.


Magddnin, Andre, 74..fkt. pas:.:lm
1\.f;mnh:udt, Wilhflm . 71
Marcellus, Manus Chmdius, 68
Manu<; Antonius, 45
Marx, Karl, 63
Ma!hiot, Andre, 31.
Meuli, Mrl, 7172
Middel!, Emil, 4647, 65

S:.wigny, Frkdrkh Karl vnn, 85


Schmitt, Carl, 1 , 3, 6, 8, 9, w, 15, 18, 19, :.o,

Lede;eT,

R<mellcul, Orcstc, .13


RdnJ;;h, The<>dot, .'h ts, _;;B

RC'Im an o, Santi, q, 23, 27..-29, 30

J,3, ;}(}-;}l; 3ZeJ6, 40, 47) 48, 50) 51, ')2-fJ(),

6y, 74-75, 1!14


Schnu r> Roman, 2
Sch oen,
,1kholem,

61

Gn'Shom. <'3

Si:hiit:>, Antrm, 26
Scipio N<1ska, +'h 49

Tri<"pd, Heinrich, fl4, 8.>

Turner, V. W,, 66

Wilsnn, WnodroN, .1

Ale-xander, 71

95