A state of exception () is a concept introduced in the 1920s by the German philosopher, jurist and
Nazi Party
The Nazi Party, officially the National Socialist German Workers' Party ( or NSDAP), was a far-right politics, far-right political party in Germany active between 1920 and 1945 that created and supported the ideology of Nazism. Its precursor ...
member
Carl Schmitt
Carl Schmitt (11 July 1888 – 7 April 1985) was a German jurist, author, and political theorist.
Schmitt wrote extensively about the effective wielding of political power. An authoritarian conservative theorist, he was noted as a critic of ...
, similar to a
state of emergency
A state of emergency is a situation in which a government is empowered to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state before, during, o ...
(
martial law
Martial law is the replacement of civilian government by military rule and the suspension of civilian legal processes for military powers. Martial law can continue for a specified amount of time, or indefinitely, and standard civil liberties ...
) but based in the
sovereign
''Sovereign'' is a title that can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin">-4; we might wonder whether there's a point at which it's appropriate to ...
's ability to transcend the
rule of law
The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...
in the name of the public order and the survival of a state. Its difference to a state of emergency lies in the two concepts' diverging relationship to the law; while a state of emergency is considered to be mostly declaratory, a state of exception is considered to be more politically significant, as it nullifies the legal validity of certain legal orders by the sovereign decision.
Background
The idea that a state may need to deal with unforeseen and critical problems is ancient; for instance, the
Republican Roman concept of the
dictatorship
A dictatorship is an autocratic form of government which is characterized by a leader, or a group of leaders, who hold governmental powers with few to no Limited government, limitations. Politics in a dictatorship are controlled by a dictator, ...
allowed a single person to take extraordinary measures, under strict controls. Renaissance thinkers such as
Machiavelli and
Jean Bodin
Jean Bodin (; ; – 1596) was a French jurist and political philosopher, member of the Parlement of Paris and professor of law in Toulouse. Bodin lived during the aftermath of the Protestant Reformation and wrote against the background of reli ...
also discussed the problem. However, while monarchy implies elements of unaccountability and extralegal powers, modern
republican constitutions attempt to remove these factors, raising the question of how to deal with such emergencies.
Before the twentieth century, constitutions did not define a state of emergency in great detail. For instance, the
Constitution of the United States
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...
allows the suspension of
habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a legal procedure invoking the jurisdiction of a court to review the unlawful detention or imprisonment of an individual, and request the individual's custodian (usually a prison official) to ...
, but only with the agreement of
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
; the executive does not have this power itself. The
French Constitution of 1848 stated that a law should be passed defining a state of exception, but did not itself define one. Given
the difficult circumstances of post-World War One Germany, it is understandable that the
Weimar Constitution
The Constitution of the German Reich (), usually known as the Weimar Constitution (), was the constitution that governed Germany during the Weimar Republic era. The constitution created a federal semi-presidential republic with a parliament whose ...
included
Article 48, allowing emergency powers; however, these were never legally defined.
Theory
Schmitt introduced the concept of “state of emergency” in his 1921 essay
''On Dictatorship'', influenced by what he saw as the weakness of the Weimar Constitution and the necessity of a ruler with a strong degree of executive power. In his later essay
''Political Theology'' he defined sovereignty as, essentially, the ability to interpret and change the law to the extent of its unilateral nullification and amendment, and that this was necessary given the unforeseeable nature of emergencies. More importantly, the sovereign according to Schmitt is defined by his decision on what constitutes the exception, leaving him both within and outside the boundaries of a state's legal order. Furthermore, "In Schmitt's terms,"
Masha Gessen wrote in ''Surviving Autocracy'' (2020), when an emergency "shakes up the accepted order of things...the sovereign steps forward and institutes new, extralegal rules."
This concept is developed in
Giorgio Agamben
Giorgio Agamben ( ; ; born 22 April 1942) is an Italian philosopher best known for his work investigating the concepts of the state of exception, form-of-life (borrowed from Ludwig Wittgenstein) and '' homo sacer''. The concept of biopolitic ...
's book ''
State of Exception'' (2005) and
Achille Mbembe
Joseph-Achille Mbembe (; born 1957), is a Cameroon, Cameroonian historian and political theorist who is a research professor in history and politics at the Wits Institute for Social and Economy Research at the University of the Witwatersrand. He ...
's ''
Necropolitics'' (2019). Agamben investigates how the state of exception can become extended, for instance how the United States treated prisoners captured during the "war on terror", and Mbembe describes how the state of exception can be used to reduce people to precarity and justify violence and killing.
It can be either grounded upon autonomous
sources of law
Sources of law are the origins of laws, the binding rules that enable any state to govern its territory. The terminology was already used in Rome by Cicero as a metaphor referring to the "fountain" ("fons" in Latin) of law. Technically, anything ...
(like international treaties) or featured as external to the juridical order.
Examples
An example from Nazi Germany is the
Reichstag Fire
The Reichstag fire (, ) was an arson attack on the Reichstag building, home of the German parliament in Berlin, on Monday, 27 February 1933, precisely four weeks after Adolf Hitler was sworn in as Chancellor of Germany. Marinus van der Lubbe, ...
(the arson against the German parliament) which led to
President von Hindenburg's
Reichstag Fire Decree
The Reichstag Fire Decree () is the common name of the Decree of the Reich President for the Protection of People and State () issued by German President Paul von Hindenburg on the advice of Chancellor Adolf Hitler on 28 February 1933 in immed ...
following Hitler's advice. This decree indefinitely suspended most of the Weimar Republic’s
civil liberties
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties of ...
, including habeas corpus,
freedom of expression
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The rights, right to freedom of expression has been r ...
,
freedom of the press
Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic Media (communication), media, especially publication, published materials, shoul ...
,
freedom of association
Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline membe ...
, and
the right to public assembly. A month later, after the government had used these powers to arrest
Communist
Communism () is a sociopolitical, philosophical, and economic ideology within the socialist movement, whose goal is the creation of a communist society, a socioeconomic order centered on common ownership of the means of production, di ...
and
Social Democrat
Social democracy is a Social philosophy, social, Economic ideology, economic, and political philosophy within socialism that supports Democracy, political and economic democracy and a gradualist, reformist, and democratic approach toward achi ...
members, the Reichstag passed the
Enabling Act, with
the legal assistance of Schmitt, allowing Hitler to rule without the Reichstag’s consent. Although couched as a temporary measure, the state of exception remained in place until Hitler’s defeat in 1945, allowing him to rule under what amounted to continuous martial law.
The consequences of entering a state of exception may unroll slowly. "Even the original Reichstag Fire was not the Reichstag Fire of our imagination—a singular event that changed the course of history once and for all," Gessen wrote, pointing out that the Second World War did not begin for another six years after the Reichstag burned.
Another example of the use of the state of exception is arguably prevalent in the
Mandate for Palestine
The Mandate for Palestine was a League of Nations mandate for British Empire, British administration of the territories of Mandatory Palestine, Palestine and Emirate of Transjordan, Transjordanwhich had been Ottoman Syria, part of the Ottoman ...
and
Israel
Israel, officially the State of Israel, is a country in West Asia. It Borders of Israel, shares borders with Lebanon to the north, Syria to the north-east, Jordan to the east, Egypt to the south-west, and the Mediterranean Sea to the west. Isr ...
until the early 1960s. According to scholar Noura Erakat in her work ''Justice for Some: Law and Question of Palestine'' (2019), the British
Mandate for Palestine
The Mandate for Palestine was a League of Nations mandate for British Empire, British administration of the territories of Mandatory Palestine, Palestine and Emirate of Transjordan, Transjordanwhich had been Ottoman Syria, part of the Ottoman ...
had constituted a "sovereign exception". This is arguable because, in contrast to other Category A mandates such as the
Mandate for Syria and the Lebanon
The Mandate for Syria and the Lebanon (; , also referred to as the Levant States; 1923−1946) was a League of Nations mandate founded in the aftermath of the First World War and the partitioning of the Ottoman Empire, concerning the territories ...
, the British mandate for Palestine prohibited the Palestinian communities to gain provincial independence in its plight for self-governance, even if other mandates of
League of Nations
The League of Nations (LN or LoN; , SdN) was the first worldwide intergovernmental organisation whose principal mission was to maintain world peace. It was founded on 10 January 1920 by the Paris Peace Conference (1919–1920), Paris Peace ...
aimed to grant the right of independence to other native Arab communities at the end of each mandate period. Erakat highlights this point by referring to the Mandate authorities' response to the
1936–1939 Arab revolt in Palestine
A popular uprising by Palestinian Arabs in Mandatory Palestine against the British administration, later known as the Great Revolt, the Great Palestinian Revolt, or the Palestinian Revolution, lasted from 1936 until 1939. The movement sought i ...
, where pre-existing legal orders were relinquished in response to the rise is violence in the mandate.
In the case of the modern state of Israel from its inception to the early 1960s, Erakat argues that a state of exception was part of the way civil administration treated the livelihoods and properties of Palestinian inhabitants in the state of Israel and those who fled during and after the
1948 Palestine war. Erakat refers to the defence emergency regulations passed and laws passed by the Israeli Knesset in the 1950s to highlight how property and land belonging to Palestinian inhabitants left empty after the war, were subject to the sovereign exception under the banner of security considerations.
See also
*
Article 48 (Weimar Constitution)
*
State of emergency
A state of emergency is a situation in which a government is empowered to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state before, during, o ...
References
Sources
* Carl Schmitt, ''Die Diktatur. Von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen Klassenkampf'', 1921.
* Carl Schmitt, ''Politische Theologie. Vier Kapitel zur Lehre von der Souveränität'', 1922.
Philosophy of law
Political philosophy
Emergency laws
Carl Schmitt
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