Academic journal article International Journal on Humanistic Ideology

The State of Exception between Decision and Norm

Academic journal article International Journal on Humanistic Ideology

The State of Exception between Decision and Norm

Article excerpt

1. The scope of this research. Points of departure.

Broadly understood as the suspension of an actuality, the concept of state of exception lies at the basis of various philosophical theories. The broad array of meanings associated with this notion opens a sea of possibilities of interpretation and elucidation. If we take the example of political philosophy, a simple look, from left to right, across the spectrum of political theories will discover (in many, if not in all of them) the presence and the meaning of the state of exception. An attempt to capture the function of this concept in all its diverse occurrences would be an encyclopaedic, to say the least, if not an altogether impossible endeavour. This paper acknowledges, therefore, the need for precisely circumscribing the limits of this research on the state of exception.

The result of this circumscription is the inclusion of the state of exception in the juridical sphere. For this purpose, we start from the distinction between norm and decision, with which Carl Schmitt operates in his well-known work, Political Theology,1 where he discusses the place of the state of exception in the contemporary juridical field. In parallel with the vision of Carl Schmitt, who admits the place of exception in law, this vision being taken over and developed by the contemporary philosopher Giorgio Agamben, we will present the theory of the positivist jurist Hans Kelsen, whose point of view does not admit the place of an exception in the law-state.

Thus, for Schmitt and, later, for Agamben, the state of exception is defined around the terms political and legal. It is, for the Italian philosopher, a "point of imbalance between public law and political fact."2 In other words, the state of exception is the place where the political fact causes the suspension of law itself, and the consequences of this suspension may be either the preservation or the abolition of the rule of law. In fact, Agamben takes this idea of a borderline or limit concept from Schmitt, who describes the state of exception in the same terms. While Agamben focuses on the limit between public law and political fact, the concepts used by Schmitt are those of norm and decision. The decision is where the state of exception can apply, the norm being something fixed, predetermined - in other words, the rule.

To define the exception, Schmitt uses the notion of sovereignty. For him, "Sovereign is he who decides on the exception."3 Thus, sovereign is the one who can deviate from the norm and create by himself, through his decision, at a time when the legal rules are under suspension. It is obvious why the exception finds its place only in the sphere of the decision, and not in that of the norm. The state described by Schmitt is one in which both the norm and the decision find their place, both having their own necessity.

An opposite view to that advanced by Schmitt is proposed by Hans Kelsen, the Austrian jurist. He builds the idea of a law-state, in which there is no place for the decision and, hence, for the state of exception. This is because the political (the decision) should not interfere at all with the juridical (the norm).

Kelsen outlines a pyramidal image, according to which, the validity of any norm is derived from a basic norm, i.e. from the constitution of a state. His strictly positivistic option appears to reject any phenomenalization of the state of exception. However, in his writings, the jurist will admit, perhaps without realising it, the possibility of a perpetual state of exception, by promoting a constitution which, unwittingly, acquires the features of a totalitarian norm, albeit one that is sufficiently vague, in fact, to allow anything. The author believes that this type of state does not deviate from the norm, because it acts within the proclaimed legal order.4

This has led to discussions regarding the possibility of a state of exception in the contemporary rule of law. …

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