This article challenges the increasingly prevalent idea that since September 11, 2001, we have moved into a state of permanent emergency and an abandonment of the rule of law. The article questions this idea, showing that historical developments in the twentieth century have actually placed emergency powers at the heart of the rule of law as a means of administering capitalist modernity. This suggests we need to rethink our understanding of the role of emergency measures in the "war on terror" and, more generally, to reconsider the relationship between the rule of law and violence. KEYWORDS: emergency powers, state of exception, Benjamin, Schmitt, rule of law.
Since the event that has quickly passed into the English language as "9/11," countless individuals have been imprisoned without charge or trial at Guantanamo Bay, the detention center at Bagram in Afghanistan, and Abu Ghraib prison in Iraq. It is clear that while in detainment some have been tortured and most have been subject to inhumane treatment. Others have been shipped to prisons, penitentiaries and police stations in countries known to allow human rights abuses. At the same time, liberal democracies have devised new and unusual methods to discipline and punish, such as the "control orders" recently introduced in Britain. Less startling but equally significant are the systematic ways in which international laws seem to have been overridden by a new imperial power and the way most Western liberal democracies have generated new policies that appear to undermine the basic tenets of liberal jurisprudence and constitutional democracy. In response to the shock and outrage expressed by many against these developments, we have been told that we are living in exceptional times, and that such times require exceptional powers: "It is a state of emergency." Perhaps, then, the key date for our times is "9/14" rather than the actual attack three days earlier, for this was the day the US president George W. Bush declared a state of emergency.
For those working in the minor cottage industry based on the work of Carl Schmitt, such a declaration proved to be more than a little fortuitous. Most of the workers in this industry consider themselves as radical or critical theorists on the political left, and much of their interest centers on Schmitt's concept of sovereignty: Sovereign is he who decides on the exception. So what could offer better proof of the cogency of Schmitt's central problematic than the world's most powerful state asserting its sovereignty by declaring a state of emergency? The period since September 2001, has therefore been a field day for those interested in the idea of the state of emergency. (1)
But this story has a little twist. For many have suggested that because the war on terror will probably never end, at least "not in our lifetimes," as Vice President Dick Cheney was saying just weeks after 9/11, the emergency in question appears to have quickly become a permanent feature of the political landscape: The exception has in fact become the rule. With this state of emergency, it is said, normal times are gone. Central to the left's response to this war, then, has been the claim that the emergency itself appears to be becoming permanent. The standard device for many is to then cite Walter Benjamin among the otherwise Schmittian thematic, to the effect that "the 'state of emergency' in which we live is not the exception but the rule."
The influential figure here has been Giorgio Agamben's use of Schmitt in developing his arguments concerning the camp as the nomos of the modern and related themes such as the refugee and "bare life." For Agamben, the camp is the space that opens up when the state of exception starts to become the rule. The camp is thus a space of exception, a piece of territory placed outside the normal juridical order, and at the same time the ultimate expression of the logic of the exception. …