Review of the literature on the state of exception and the application of this concept to contemporary politics

Thursday 3 March 2005, by Neal Andrew

This paper seeks to make a sustained theoretical intervention into the critical-theoretical debate that has been emerging around the terms exception, state of exception, and exceptionalism. Here we will enquire into the concept of exceptionalism as a means of critically engaging with the sovereign declaration and enactment of exceptions to legal, political, social, historical and cultural norms, typically in the name of security imperatives or a state of emergency. For the most part this piece will form of a critical review of Giorgio Agambens work on the idea of the state of exception. Agamben can in part be credited with the revival of this concept in two key books. The first is Homo Sacer: Sovereign Power and Bare Life,the second is State of Exception. Through a close reading of the two texts we will seek to draw out both the usefulness and the limitations of Agambens work, and the usefulness and limitations of the concept. Two broad angles will be taken; first, we will engage with the specific claims of the books, giving them credit where they draw attention to sites of key theoretical importance but critically extending our analysis when the text does not go far enough, and second, we will take issue with Agambens readings of key theorists. Agambens two texts are of a slightly different order. Homo Sacer is the longer and more original text. It lays out some rather innovative ideas regarding sovereignty and the figures of man and life. State of Exception is a shorter text, less far-reaching in its ambition. It engages more closely with the debates in the literature concerning the idea of the state of exception, and goes some way to clarifying many of the ideas in Homo Sacer. Both at least partly succeed in drawing attention to the stakes involved in contemporary deployments of exceptional sovereign violence. Biopolitics, Sacred Life, and Sovereignty as a Relation of Abandonment Agamben begins Homo Sacer by taking Michel Foucault seriously. He invokes Foucaults concept of biopolitics as a radically different way of understanding the relation between life and politics. The Greeks, Agamben argues, made a key political distinction between the simple fact of living - zo - and the qualified political life - bios. While the mere fact of living in itself had a natural sweetness for Aristotle, the end of politics was not simply this bare life but the politically-qualified good life. Agamben asserts that this account of politics has become canonical for us moderns, centring on competing articulations of the good life. Agamben then invokes Foucaults distinction between this classical paradigm and the identification of a distinctively modern biopolitics, in which biological life itself (of both the

individual and the species) becomes what is at stake in politics. As Foucault writes: For millennia, man remained what he was for Aristotle: a living animal with the additional capacity for political existence; modern man is an animal whose politics calls his existence as a living being into question. [1] In the passage from the classical to the biopolitical paradigm, Agamben argues, the bare life that was excluded from political considerations as the simple unqualified fact of living becomes included in the realm of politics. The concept of biopolitics allows Agamben to claim that the exclusion which for the Western episteme marked the original distinction between the political and the non-political is in fact the the fundamental categorical pair of Western politics...that of bare life/political existence, zo /bios, exclusion/inclusion. [2] The original exclusion of bare life from political life is in fact, claims Agamben, an inclusive exclusion - the originary political distinction par excellence, which applies to bare life by disqualifying it from genuine political life. This, however, reveals bare life as all the more political. By invoking the marginality that is at play in the political distinction between bare life/political existence, exclusion/inclusion and exception/norm, Agamben links bare life to the state of exception. For Agamben, exceptionality, exclusion and marginality form the originary political relation. The structure of exclusion is the structure of sovereignty itself. Agamben thus inverts early modern accounts that understand sovereignty as inclusive social contracts. Instead, the figure of the ban is brought into play - sovereign power does not affirm its power over life by asserting its dominion, but by withdrawing its protection, abandoning bare life to a realm of violence and lawlessness. But while the ban bequeaths the banned figure to an outside, this exclusion is in fact an inclusion, an inclusive exclusion, for sovereign power applies all the more in withdrawing itself. As Agamben explains: He who has been banned is not, in fact, simply set outside the law and made indifferent to it but rather abandoned by it, that is, exposed and threatened on the threshold in which life and law, outside and inside, become indistinguishable. It is literally impossible to say whether the one who has been banned is outside or inside the juridical order. [3] Agamben brings this originary political exclusion into focus by calling upon the archaic Roman figure of homo sacer - sacred man. Here the term sacred means not simply holy, but a rather more ambiguous meaning, explored in 19th century anthropology by such figures as Freud and Durkheim, in which the holy and the taboo, the sacred and the profane, often touch. Homo sacer is one who has been excluded from normal human law and as such is placed in a limit condition between this world and the next, between human life proper and death. This limit condition corresponds to the sphere of the sovereign ban, in which bare life is included through its exclusion. The consequence is that: The sovereign sphere is the sphere in which it is permitted to kill without committing homicide and without celebrating a sacrifice, and sacred life - that is, life that may be killed but not sacrificed - is the life that has been captured in this sphere. [4]

For Agamben, the sovereign exception is the withdrawal of law from excluded life, and therefore the exposure of that life to the peril of death. One who kills homo sacerwill face no sanction. And in being excluded from the normal prohibition on killing, homo sacer is also excluded from sacrifice, form the normal ritualised forms of killing and punishment. For example, a traditional object of the ban, the bandit, is in a continuous relationship with the power that banished him precisely insofar as he is at every instant exposed to an unconditioned threat of death. He is pure zo, but his zo is as such caught in the sovereign ban and must reckon with it at every moment. Therefore, no life is more political than his. [5] Agambens formulations touch quite incisively on some of the issues raised by contemporary deployments of sovereign violence. If we focus on the Guantanamo Bay detention camp, an exemplary site of contemporary exceptionalism, we can easily demonstrate the application of Agambens ideas. Guantanamo cannot be explained in the regular terms of law or criminal investigation. It is well-known that the intended purpose of the camps location outside the regular territory of the United States is precisely to separate the entire process from normal American legal procedures and constitutional rights. It exists in a state of exception. By way of example we can look to the first-hand account of detention given by the Tipton Three, three British Muslims held there for over two years. As one of them explains: we were never given access to legal advice. I asked at various points but they just said that this is not America this is Cuba and you have no rights here. [6] Similarly, in reference to the countless violent beatings and abuses the prisoners received, the report explains that for the prison guards there was never any redress when they were mistreated or rules were broken. [7] Likewise, a letter alleged to be from another British Guantanamo detainee, Moazzam Begg, released by U.S. officials uncensored, either by mistake or because someone in the US has a conscience, [8] relays details of his detention in both Afghanistan and Cuba and makes allegations of murder: I was subjected to pernicious threats of torture, actual vindictive torture and death threats amongst other coercively employed interrogation techniques... The said interviews were conducted in an environment of generated fear, resonant with terrifying screams of fellow detainees facing similar methods... This culminated, in my opinion, with the deaths of two fellow detainees, at the hands of U.S. personnel, to which I myself was partially witness. [9] The Guantanamo inmates could be considered homines sacri. They have been excepted etymologically taken outside as Agamben points out - from what we might call the normal rituals of sacrifice - the American legal processes that can culminate in the death penalty. Instead they have been abandoned by the law and are left facing the violence of sovereign power. As Agamben argues, the sovereign is the one with respect to whom all men are potentially homines sacri, and homo sacer is the one with respect to whom all men act as sovereigns. [10] The Politicization of Life, Birth/Nation/Biopolitics, Bare Life

Agamben draws attention to the critique of the Enlightenment that forms that backdrop to much of 20th century critical theory. Taking some of these ideas as an unfinished project, he links them to a more unitary theory of sovereign power that accounts for the biopolitical encapsulation of bare life. Agamben begins here by citing Hannah Arendts critical observations on the declining fate of the rights of man, which she links to the decline of the nation-state as an ideal. The conception of human rights, he quotes, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had lost all other qualities and specific relationships - except that they were still human. [11] For Arendt it is the refugee, relieved of citizenship and so tragically relieved of the very rights that were supposed to be held on account of being human alone, that reveals the predicament of the rights of man. Agamben takes this radical crisis of rights and extends the analysis in terms of biopolitics. The exclusion of human life deprived of all belonging, citizenship and identity is not simply a paradox for Agamben, but the hidden paradigm of the political space of modernity. [12] Agamben tackles the rights of man not as a founding achievement of the Enlightenment, but as a symptomatic sign of the further encroachment of sovereign power into the field of life as biopolitics. It is almost as if, starting from a certain point, every decisive political event were double-sided: the spaces, the liberties, and the rights won by individuals in their conflicts with central powers always simultaneously prepared a tacit but increasing inscription of individuals lives within the state order, thus offering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves. [13] Taking his cue from Foucault, Agamben interprets the crisis of rights as evidence of the increasing confoundedness of classic liberal conceptions of juridical politics. For Agamben and Foucault, it is not the rights-bearing free citizen that marks the beginning of the modern age, but the entry of the body into political calculations. As such, habeas corpus, one of the founding principles of the Anglo-Saxon legal tradition, becomes a central figure of biopolitics. Agamben once again inverts the conventional meaning to draw attention to its original ambiguity: the ancient writ that preceded habeas corpus was originally intended to assure the presence of the accused in a trial, rather than the release of a body held without charge. Of course, habeas corpus has become a key battleground in the current legal struggle against detention without trial in the U.S and U.K. - and it is precisely on account of being merely human and not domestic citizens that these detainees can be denied this right. It seems correct then that Agambens proclamation on the ambiguity of the corpus/body should draw attention this struggle: Corpus is a two-faced being, the bearer both of subjection to sovereign power and of individual liberties. [14] Similarly, Agamben invokes a further element of this Foucauldian problematique, the oxymoron of the sovereign subject that is simultaneously both subjected and elevated. [15]

This double-edged relationship between sovereign power and sovereign subject leads Agamben to posit a reformulation of Schmitt (Sovereign is he who decides on the exception. [16]) in the claim that, In modern biopolitics, sovereign is he who decides on the value or the nonvalue of life as such. Life - which, with the declarations of rights, had as such been invested with the principle of sovereignty - now itself becomes the place of a sovereign decision. [17] In Agambens analysis, this biopolitical sovereign decision on the value or nonvalue of bare life comes to be expressed in two key sites, first the nation, and second, as its inverse, the camp. Agamben draws attention to the etymology of the concept of nation, from nascere - to be born. It is precisely this historical innovation from the French revolution - that sovereignty should reside in the nation - which inscribed this element of birth in the very heart of the political community. [18] Thus man, the natural man that for Rousseau was born free, is for Agamben the immediately vanishing ground... of the citizen. [19] The nation-state comes to include man in its sphere by the very fact of his birth in its territory, and thus comes to decisively establish its dominion over life at precisely the moment when mans liberty was meant to be guaranteed. It is within this trajectory that Agamben argues we should understand fascism and Nazism, which were, above all, redefinitions of the relations between man and citizen, and become fully intelligible only when situated - no matter how paradoxical it may seem - in the biopolitical context inaugurated by national sovereignty and declarations of rights. [20] Continuing this link takes us to the second and corresponding key site, the camp. Agamben describes the camp as the absolute biopolitical space, in which power confronts nothing but pure life, without any mediation. [21] The camp, Agamben argues, is the state of exception made permanent in factual basis. It is precisely here that the threshold between law and violence is manifested, in a zone of indistinction in which fact and law become indistinct, and in which every camp guard is effectively sovereign. Agamben raises the spectre of the often deadly scientific experiments that were conducted on camp inmates, who because already deemed life not worthy of being lived and destined for death, could be killed without murder. The camp, Agamben argues, is the fundamental biopolitical paradigm of the West. [22] Provocatively, Agamben claims that the inclusive exclusion of the camp, both as figure and in fact, resides at the heart of every model of citizenship and public space in the West. Some of these arguments will be familiar to scholars of 20th century critical theory. Claims of this sort draw a constitutive relation between the traditionally positive achievements of the Enlightenment and the 20th centurys exemplary sites of violence, war and genocide. In the sense that in empirical terms those nation-states that have claimed the mantle of the Enlightenment have been the standard bearers of war and imperialism, these critical claims carry much weight. Similarly, they are convincing if we consider the way in which contemporary liberal wars are waged in the name of supposedly universal ideals like freedom, democracy and rights. The moral mobilization that precedes modern Western wars and humanitarian

interventions also testifies to this approach. Yet in Agambens terms these recognisable critical themes seem dishearteningly reductionist. At this stage of our analysis, two main problems present themselves. The first is the question of bare life. We should consider whether life is ever really bare. Although as a conceptual figure the term makes sense, we must ask what this analytical figure does to the site of the camp on the one hand, and to politics on the other. Agamben sets much stall by the fact that the Jews were formally stripped of their (at that stage residual) citizenship before entering the concentration camps. In juridical and biopolitical terms, they were expunged from the national citizenry. If this analysis were addressed as the logic of a historically recognisable discourse or ideologyof biopolitical sovereignty, it might make sense to discuss it in this way. However, Agamben does not approach the problem in those terms. Rather, for Agamben, The fundamental activity of sovereign power is the production of bare life as originary political element and as threshold of articulation between nature and culture, zo and bios. [23] This thesis takes the form of an essentialism; it is a claim about the fundamental nature of sovereign power. Yet although the Jews may have been stripped of their political status as citizens, they still continued to be Jews. Although perhaps they were considered bare life through the logic of the Nazi ideology and from the perspective of those convinced by it, those held in the camps were humans still mediated not only through their Jewishness, but through their relationships, their origins, their memories, their dialects, their skills, their physical traits, their quirks and their mannerisms. There are in fact examples of what might be called bare life in the two exceptional sites we have discussed so far, the Nazi concentration camps and Guantanamo Bay. In Primo Levis camp testimony If This is a Man, he describes a figure known only as null achtzehn - zero eighteen, his camp number. This young man had completely lost any sense of identity, the ability to communicate, and the ability to offer any resistance to commands. His only quality was absolute passivity and compliance. The Tipton Three describe similarly abject characters in Guantanamo. One man, Michal from Saudi Arabia, tried to hang himself and passed out from asphyxiation. The guards took him down and beat him, and now he is basically a cabbage. [24] They go on to describe that, For at least 50 of those so far as we are aware their behaviour is so disturbed as to show that they are no longer capable of rational thought or behaviour. We do not describe in detail here the behaviour but it is something that only a small child or an animal might behave like. [25] These figures could be considered truly abject bare life, stripped of all qualities other than the simple fact of being alive. But nevertheless, it is still hard to imagine the total loss of mediation of residual traits like skin colour and so on. In the concentration camps, certainly, the detainees were reduced to a terrible condition of abjection and prostration, where the limits of their humanity toward themselves and each other was frequently exceeded. Yet in both instances there was still politics in the camp, even if not of the kind of high sovereign politics that Agamben talks about. Levi wrote about the guilt he felt at having been able to reach a relatively privileged position in the camp hierarchy by working in a chemistry laboratory. In Guantanamo, although the breaking-points of many of the detainees were often breached, in some cases permanently,

the entire structure of physical and environmental manipulation was constructed around breaking down the multiplicity of resistances, small and large, offered by the detainees, particularly under interrogation. The Tipton Three describe large-scale hunger strikes for example. One describes how, I scratched have a nice day on my Styrofoam cup and this was seen as a disciplinary offence for which I spent another week in isolation. [26] So it is unclear whether we could really consider any instance of truly bare life, anymore than we can access a pure thing in itself without the mediation of language and perception. At many points, Agamben claims that the originary categorical pair of modernity is not friend/enemy - a riposte to Schmitt - but the inclusion/exclusion of life/bare life. Yet we cannot take this pairing as a given. There is an excess to the body, much as there is an excess of meaning over words. In his later works Foucault responded to similar problems of being and subjectivity by inverting the traditional Cartesian mind/body dualism to suggest that the body is not the prison of the soul, but rather the soul is the prison of the body. Foucault suggested that it is our categories of subjectivization that shape and fix our identities, not pre-given anatomical or juridical facts. Through ethical self-fashioning, he suggested, being could be liberated toward new and different forms. We could and should give a similarly more subtle slant to Schmitts concept of the friend/enemy distinction as the ultima ratio of the political, for while Schmitt can be read as positing a fixed Platonic dualism of friend/enemy, he also argues that the friend/enemy relation would make no sense to a neutral third-party observer. It is only from within the culturally and socially-situated positions of the relationship itself that the true import of a conflict can be felt. The problem regarding Schmitt is then, of course, the question of who speaks for these political groupings and who decides what their definitive and sacrosanct qualities are? Who will decide when that political grouping feels its way of life threatened enough to go to war? Schmitt can be read to both stress the political problematique of these questions, and to stress the right-wing or fascist answers he gives to them. Yet the deep ambivalence that Schmitt displays about the friend/enemy distinction, and correspondingly about the exception too, does not translate into Agambens dualism. In Agamben, there is nothing of dominant discourses, hegemony, disqualified knowledges, the decisive social constellations of the day etc., there is only an is. The second major problem that we need to consider at this stage is that of the nation. Agamben is of course right to draw attention to the link between nation and birth. This issue constitutes a serious political problem today, as the many controversies about immigration across the Western world show. Yet to understand the nation purely in terms of the entry of birth and life into political calculations massively underplays the historical and politico-theoretical significance of that concept. Foucaults lecture series, Society Must Be Defended, tackles many of the same themes as Agamben, and it could even be argued that Agamben has lifted his theses on the link between Nazism and biopolitics directly from the final lecture. Foucaults narrative, however, places much more emphasis on the historical and philosophical novelty of claims to nationhood. For Foucault the nation emerged not simply as the expression of the originary structure of sovereign power, but as a radical new political and historical claim. The nation was an expression of collective identity that served the highly political function of countering monarchical sovereign power, before becoming synthesized with sovereign power to form the

nation-state later on. The nation worked as political claim, but also a claim about the content of history itself; claims about nationhood were claims that the nation was the very subject of history. It is only by adding this dimension that we can get a grasp of the way claims to nationhood operate as claims about salvation, belonging, collective aspiration, and the realisation of universal principles through time. Through Agamben we can only get an understanding of the position of the body within the sovereign populace, but through Foucault we can understand that claims to nationhood have been driven by powerful sentiments of identity, value and aspiration. Potentiality/Actuality From here we will slowly articulate Agambens theory of the state of exception, beginning with the initial theses he puts forward in Homo Sacer, before moving on to their development in State of Exception. In Homo Sacer the most important figure of sovereign exceptionality is the ban. The ban enables Agamben to explore a complex relationality in the structure of sovereignty which is simultaneously the structure of the state of exception. One of the most useful extensions of the thesis on the sovereign ban is Agambens discussion of the potentiality and actuality of sovereignty. The sovereign ban, if we recall, applies to the exception in not applying; it maintains itself in relation to actuality precisely through its ability not to be. [27] If we unravel this statement we can see that sovereignty exists in a kind of dual condition. It comes into force by crossing the threshold from law to violence, while blurring the distinction between the two. The structure of sovereignty consists not so much in the governance of everyday life, but in the potential to withdraw itself from application. Once the sovereign protection of the law is withdrawn, the object of sovereign power - bare life - is left subject to the unrestrained force of sovereign violence. As Agamben argues: Sovereignty is always double because Being, as potentiality, suspends itself, maintaining itself in a relation of ban (or abandonment) with itself in order to realize itself as absolute actuality (which thus presupposes nothing other than its own potentiality). [28] While this is a rather abstract formulation, it comes into focus through a small aside that Agamben makes: The troublemaker is precisely the one who tries to force sovereign power to translate itself into actuality. [29] This is a rather sharp way of understanding exceptional events such as the World Trade Center attacks of September 11th 2001. One of the most confounding problems surrounding these terrible acts of political violence is the question of their causality. While the dominant commentary of sovereign legitimation has sought to attribute its actions to the necessity brought about by 9/11 and the security threat, this is a shrewd way of deferring responsibility elsewhere. The event of 9/11 did not dictate any specific response, and there is nothing inherent in that event that should prompt sovereign power to abolish habeas corpus and engage in torture. We might think about the strategic purpose of such spectacular acts of political violence. Although 9/11 took a tremendous human toll, it could not be said to be a threat to the existence of the United States as such. It could not be compared, for example, to the threat of nuclear war. But the standing of the U.S. in the world has certainly reduced since that date, not because of the attacks themselves, which prompted an outpouring of sympathy, but because of the practices that

the U.S. executive has promoted since then. We should consider as typical a critical statement on post-9/11 American sovereign practices presented in the annual report of Human Rights Watch, which stated that: When the United States disregards human rights, it undermines that human rights culture and thus sabotages one of the most important tools for dissuading potential terrorists. Instead, US abuses have provided a new rallying cry for terrorist recruiters, and the pictures from Abu Ghraib have become the recruiting posters for Terrorism, Inc. [30] We might consider, therefore, that the political outcomes of 9/11 were not caused directly by the attacks, but by the practices of the U.S. itself. We might consider the causal effect of the attacks to be indirect: to force sovereign potentiality to become actual and reveal itself for what it really is. No one doubted, for example, that the U.S. response to the September 11th attacks would be military and illiberal. This figure of potentiality/actuality offers a sharp way of understanding sovereign practices as a latent structure and intent existing prior to the event. Agambens formulations in this area are provocative and intriguing, but they cannot be taken as complete project on the nature of sovereignty and the exception. Rather, the idea of sovereign potentiality lays the ground for an empirical project. The theoretical potentiality of sovereignty is form without content. The content of that potentiality is given, instead, through particular sociological conditions, and in the case of the U.S., highly overdetermined sociological conditions. Thus the idea of sovereignty in potentiality should lead to an empirical investigation into what the actualisation of that potentiality might look like in particular cases. What historical and cultural conditions have shaped specific cases of sovereign potentiality/actuality in particular ways? What characterises the differences between the actualisation of sovereignty in, for example, the U.S., the U.K., Spain and so on? Exception/Necessity/Lacuna Agambens later book, State of Exception, enters into more detailed discussion of the state of exception as it has been handled within various legal and governmental traditions. We hear that the state of exception has been tied to accounts of necessity, drawing on the ancient maxim according to which necessitas legem non habet[necessity has no law]. [31] Necessity in this case corresponds to the problems surrounding the nature of the exceptional event as discussed above. What causal qualities can we attribute to the contingent event, to conditions of necessity? What Agamben does not draw attention to in Homo Sacer is the double articulation of the exception that Schmitt lays out in Political Theology. While Agambens treatment of the state of exception in the earlier book focuses almost exclusively on the structure and function of sovereignty, Schmitts account of sovereign exceptionality is justified through the idea of exceptional events or conditions that fall outside the scope of the law. Schmitt equates conditions of necessity to lacunae in the law - situations that fall outside the normative scope of the law. State of Exception brings in a productive analysis of this idea of a lacuna in the law that sovereign power is necessarily obliged to fill. We will return to Schmitt shortly.

How have legal traditions dealt with the idea of necessity in relation to law? According to Agamben, these split into two camps. On the one hand there is a group who consider that necessity, while not explicitly included in the law, is nevertheless included in the wider juridical order as some kind of grounding source of law, invoking a natural right of existence of the state for example. This first camp includes Schmitt. On the other hand there is a group who consider that necessity is simply an extra-juridical question of fact, which prompts Agamben to ask the question of how a simple de facto problem can be so politically decisive. [32] Agamben addresses this problem by denying the idea of the normative lacuna in law. Instead he argues that, Far from being a response to a normative lacuna, the state of exception appears as the opening of a fictitious lacuna in the order for the purpose of safeguarding the existence of the norm and its applicability to the normal situation. [33] The novelty of analysis here is that the lacuna is not simply a gap in the law, but a gap in the relation between law and reality - a fracture between norm and the possibility of its application. The state of exception does not simply fill in a gap in the law, because that would beg the question of how an extra-legal power could operate as part of the legal process. Rather, the state of exception suspends the law in order to defend the law. We might say that the state of exception suspends the law in the name of the law. Agambens identification of a fictitious lacuna is linked to what is an essential point to make about the invocation of necessity in arguments about law: far from occurring as an objective given, necessity clearly entails a subjective judgement, and that obviously the only circumstances that are necessary and objective are those that are declared to be so. Although Agamben does not make it explicit, this is precisely the critique that should be levelled at Schmitt. Schmitt blurs the nave invocation of the possibility of an objective condition of necessity with his more sophisticated invocation of sovereign nominalism - the sovereign capacity to name. If there were such an objective condition as a state of necessity, there would be no need for Schmitts sovereign to be he who decides on the exception; instead, the recognition of a state of necessity/exception would be a purely technical procedure. What Schmitt does, therefore, is use the idea of necessity to justify a sovereign response that is more than a simple sovereign response, because it claims possession of the prerogative to declare necessity/exceptionality as it sees fit, perhaps arbitrarily. Of course, this has been a familiar feature of the enactment of emergency powers throughout their history: justified in the name of an emergency but actually serving to protect a government or further particular political interests. Agamben identifies this as one of the key issues in the debate about exceptional powers - that constitutional dictatorship, which seeks to safeguard the constitutional order, can easily turn into unconstitutional dictatorship, which leads to its overthrow. [34] With reference to this problem Agamben quotes a text by one Carl J. Friedrich, which actually takes the problem in a direction that Agamben does not:

There are no ultimate institutional safeguards available for insuring that emergency powers be used for the purpose of preserving the Constitution. Only the peoples own determination to see them so used can make sure of that... [35] Agamben is more concerned to argue that it is now impossible to distinguish between preserving and overthrowing the constitution, because the state of exception has by now become the rule. [36] This issue I will return to later. Here, I want to draw attention to Friedrichs invocation of the peoples own determination. This touches on what is largely missing from Agambens analysis, which is any consideration of the democratic elements - broadly conceived - of the state of exception. To posit the people as a restraining actor raises innumerable questions. Are there limits to government action that cannot be encapsulated in law or juridical formulae? How do those limits operate and find expression? The import of this concern is appropriately demonstrated by a state such as the U.K., with its unwritten constitution. In this system parliament is sovereign, and, lacking a sacrosanct written constitution, it would be perfectly feasible, in theory, for parliament to repeal any or all of the key laws that make up the patchwork of the unwritten constitution, all the way back to the Magna Charta. Parliament could therefore alter the constitutional fabric of the country beyond recognition. The system depends on the far less tangible form of limitation that is expressed, rather simply, in the sentiment that this would never be allowed to happen. Now of course, in a system with a written constitution, the constitution can still be changed, although such systems have formalised structures that make this quite difficult. Nevertheless, there is no fundamental difference between the two systems, apart from the fact that the unwritten constitution of the U.K. demonstrates the wider cultural, social and historical dimensions involved in constitutional, and indeed political, inertia, stasis or upheaval. The invocation of the people as an expression of social, cultural and historical concerns, and not simply as a biopolitical object, deepens the problem of sovereign power. Although Agamben is already attempting to broaden the analysis of sovereign power by investigating it beyond the legal and juridical limits exceeded by the state of exception, he does not go far enough. What is excluded is a consideration of what Rob Walker might call the authorisation of authority, the deeper historical and discursive conditions that enable authority to be authoritative. Despite his continual invocation of Schmitt, Agamben does not recognise Schmitts sustained concern with these problems. In a text such as The Age of Depoliticizations and Neutralizations for example, Schmitt is concerned not so much with the singular figure of the sovereign, but with questions about how decisive political authority emerges according to the central social and technological conditions of the day. Max Weber explores similar questions in Politics as a Vocation, articulating concerns about the new forms of leadership and political power that will emerge under new (and declining) historical and social conditions. Although the work of both of these theorists ultimately closes down the problem of political authority in different ways, in the rather right-wing reification of charismatic leader figures for example, Agambens analysis seems rather staid and one-dimensional in comparison. Similarly, to return to concerns about necessity and the state of exception, Agambens point about the subjectivity of necessity does not go far enough. Although invoking the subjectivity involved in the experience of necessity may unsettle maxims that are built on the sentiment that necessity has no law, claims to necessity can have a political effect regardless of their logic.

Disproving the objective nature of necessity says nothing about how claims to necessity work, about how they are situated and operate within legal, political, bureaucratic and social fields, and about the kind of culturally-determined sentiments they act upon. It is clear, therefore, that an investigation into the politics of necessity, which is simultaneously an investigation into the politics of the exception, must make forays into speech-act theory, sociology and cultural theory; it must explore concepts such as discourse, ideology and hegemony; and possibly even venture into the realms of psychoanalysis with regard to fear, desire and so on. Law/Order/Escape By far the most impressive and valuable element of State of Exception is Agambens forensic analysis of the relationship between the work of Schmitt and that of Walter Benjamin. This conveys very well what is at stake in the problematique of the state of exception. Agamben describes a series of arguments and counter-arguments between the two theorists, with evidence provided through analysis of their correspondence, footnotes that point to similar sources, the likelihood that they would have read each others work in common journals and so on. The first set of arguments in this dialectic was presented in Schmitts 1921 work, Die Diktator. As Agamben relays, [37] the basic argument of this work revolved around two figures that we have already touched upon above - Commissarial Dictatorship, or a temporary dictatorship intended to defend the constitution by provisionally suspending it, and Sovereign Dictatorship, an (unconstitutional) constituent power intended to bring about something new. The crucial point in Schmitt is that both of these figures maintain a relation to juridical order. In the case of Commissarial Dictatorship, the constitution remains in force, but its application is suspended. Agamben describes this being-in-force of the law, without applying, as the force-of-law, signifying the floating and indeterminate force of a general juridical will not enshrined in legal codes. In this sense, Agamben explains, the state of exception is the opening of a space in which application and norm reveal their separation and a pure force-of-law - realizes (that is, applies by ceasing to apply) a norm whose application has been suspended. [38] So although Commissarial Dictatorship cannot be included in the law without paradox, it maintains a relation to the wider juridical order. Sovereign Dictatorship, on the other hand, holds a relationship not to the old constitution but to a new one to-come. It is a constituent power that bears the minimal form of the new constitution, and as such, represents a state of law in which the law is applied, but is not formally in force [39] - the inverse of force-of-law. Agamben tries to show that it was these Schmittian formulations that Benjamin was responding to in his essay Critique of Violence. Indeed, turning to Benjamins text we can see that his figures of lawmaking and law-preserving violence correspond exactly to Schmitts sovereign and commissarial dictators. Benjamin attempts to subvert this dual structure that encompasses the limit possibilities of juridical order by positing a pure violence placed outside those categories. This pure violence would be justified neither by an appeal to a legitimate means of obtaining a political end, nor by an appeal to just ends (which therefore justify illegitimate means). It would neither make law nor preserve law. Rather, as Agamben describes it, it would simply be a pure mediality [40] with no relation other than to itself, perhaps a manifestation of anger with no aim other than expressing itself. As Agamben explains: pure violence exposes and severs the nexus between law and violence and thus appears in the end not as violence that governs or executes

but as violence that purely acts and manifests. If we read on in Benjamin we see that his essay ends with an appeal to a post-legal, perhaps messianic, epoch. This works not so much as a substantive political vision but as symbol of what is at stake in the discourse. Benjamin is trying to proffer an emancipatory line of flight that breaks free of Schmitts seamless structures of juridical order, and he does this by asserting the possibility of a violence outside the law. Agambens quotes reveal these stakes quite clearly, for example: 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. [41] Schmitts counter-move is, by Agambens analysis, to neutralise this wayward figure of pure violence. The response is the sovereign decision. This takes on the apparent free-floating, nonrelational, undetermined, undecidable quality of pure violence by bringing it under the aegis of sovereign power. Schmitt ties this undecibality to the extreme circumstances of the exceptional situation, linking it to very necessity of a decision in the state of exception. Precisely because the extreme situation falls outside the order, which was Benjamins deliberate intention in positing his figure of pure violence, the sovereign must have the capacity to make a decision where none is possible. This strategic inversion, as Agamben describes it, is Schmitts way of neutralising Benjamins anomic and revolutionary outside. As Agamben explains, the state of exception is the device by means of which Schmitt responds to Benjamins affirmation of a wholly anomic human action. [42] Schmitt must at all costs maintain the juridical order, for it is this that is at stake. The anomie of pure violence/undecidability/necessity outside the law must not be allowed to break free. Benjamin posits his response in his Trauerspielbuchwork on baroque sovereignty. Unlike Schmitts sovereign, Benjamins is in power but cannot decide. Whereas Schmitts sovereign is a God, and the exception a miracle, Benjamins sovereign is a creature, and the exception a catastrophe. [43] There is much at stake in this play of move and counter-move. The most difficult question must be that of which figure, Schmitt or Benjamin, is more dangerous? On the one hand we can see the possibility of redemption in Schmitt, with the sovereign as saviour, and Benjamin as bringing in a heathen anarchy of fallen creatures. On the other hand we might see in Schmitt the tyranny of categories and the impossibility of escaping the structures of order, while Benjamin brings the possibility of a wildly uncertain line of flight that breaks free of the dialectic of law-making/lawpreserving, leading to a previously unthought emancipation. This much is at stake; both see the possibility of redemption at the end of opposing paths - where one sees miracles the other sees tyranny, where one sees liberation the other sees chaos. While Agamben sides with the emancipatory reading of Benjamin, it is perhaps not so easy to jump to that position. There is more work to be done here. While Benjamin posits the truly radical line of flight, it is telling that this is left as only a vague intimation. Should we consider Benjamin an unfinished project? From Benjamin we could trace a line of descent through Derrida and Deleuze, detecting his ghost in their provocative lightening flashes of thought, always seeking the path of radical escape. But who are Schmitts progeny? Nazism and fascism yes, but only up to a point. Schmitts unsuccessful fate within the party is symptomatic of the

fate of his ideas within their thought. For Schmitt the state of exception must remain a limit condition, a threshold of the return to normality or the passage to something new. But there must always be an order to come or to return. In Nazi Germany however, the state of exception declared in 1933 remained permanent to the end - there was no new order and no new constitution. As such, law ceased to have any meaning, either as the imperilled vestiges of the old, being in force while temporarily not applying, or as the minimal and constitutive vanguard of the new. We must not forget that although radical, Schmitt remained a jurist, and a lawyer could have no place in the permanent suspension of law. The uncertainty of both positions is expressed in Lenin. On the one hand he can be read as the closest contemporary of Schmitt, on the other, of Benjamin. In Slavoj Zizeks compendium of Lenins 1917 writings,Revolution at the Gates, we watch Lenin considering the central social and technological conditions of the day, awaiting the exceptional moment in which to decisively act, and seizing the vestiges of order to bring about something new. But what is his true fate? Is it to remain within the dialectic of law-making and law-preserving power, establishing something new but remaining firmly in the categories and structures of sovereign juridical order, tacking a path resembling fascism in form but not content (or for some, resembling fascism in content too); or is his fate to lead humanity to a truly revolutionary post-sovereign order in which the old categories fall into disuse? The historical narratives, telling of the early Lenin and the late Lenin, is too contested to draw a decisive answer here. It is more important to reveal the stakes involved. Anomie/Horizons/Outsides The prize in the battle between Schmitt and Benjamin is anomie. Agamben sets out an investigation into the obscure Roman condition of iustitium to illuminate this concept. As he explains, iustitium was a period of the complete transgression of all law and structure, often tied to the threat of war, or to a period of mourning after the death of the sovereign. In this condition, the authority of public offices became open to all private citizens, and any localization or hierarchy of authority was radically dispersed. In these conditions, he who acts... neither executes nor transgress the law... [his actions] will be absolutely undecidable. [44] The argument that Agamben makes then, is that: The state of exception is not a dictatorship... but a space devoid of law, a zone of anomie in which all legal determinations - and above all the very distinction between public and private - are deactivated. [45] This he ties to a direct riposte to Schmitt and all those theories that seek, paradoxically, to tie this condition without law to law itself. fallacious... are those theories, like Schmitts, 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 and decision. The state of necessity is not a state of law, but a space without law (even though it is not a state of nature, but presents itself as the anomie that results from the suspension of law). [46] Agamben is it at pains to stress that any idea that anomie is somehow tied to law or the wider juridical order is false. Although for Schmitt the extreme situation of this anomie is the grounds

for the very necessity of the sovereign decision, Agamben derides these notions as fictions through which the law attempts to encompass its own absence and to appropriate the state of exception, or at least to assure itself a relation with it. [47] Although it should by now be very clear what is at stake in this debate, it should be more difficult than it is for Agamben to truly posit a free-floating, non-relational figure of anomie. Although Agambens argument is incisive with regard to the fiction of the laws continued presence in its absence, this takes law too seriously as a conceptual horizon. We should take issue with Agambens statement that, The essential task of a theory of the state of exception is not simply to clarify whether it has a juridical nature or not, but to define the meaning, place, and modes of its relation to the law. [48] Can we really conceive of human action in a complete state of anomie? If we extend our conceptual horizons further, we should consider that there is more to relationality than a relation with the law. Human action may indeed not fall under the norms prescribed by law, and Agamben spends much time discussing this excess of life over law. The state of exception is for him, as a zone of indistinction, a condition in which life and law, fact and law, coincide. Law ceases to provide a mediation between office and authority, sovereign and subject. As Agamben explains early on in his analysis: in the forms of both the state of exception and revolution, the status necessitatisappears as an 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. [49] But although the state of exception may be the end of the relation between action and law, action does not necessarily cease to have relation or mediation. Human action may still bear relation to the memory of the rule, or to less tangible cultural norms such as those expressed by class, family, ethnicity, and so on. We should consider here the import of Antigone, who steadfastly adheres to an older, more ancient notion of right than that prescribed by the law. In the theoretical situation of total anomie that Agamben presents, he effectively subscribes to an earlymodern notion of the subject who is only an abstract figure subjected to the dictates of reason or force, who amounts to nothing more than his capacity to kill or be killed. In remaining within the conceptual horizon of the law, Agamben remains within the conceptual horizon of an abstract subject - if not a legal subject, then at least the unmediated bodily subject of bare life. Rather, we should consider that the subject is never unmediated. Even if not mediated by law, the subject is still situated in both psychological and bodily mediation either in its present relations, or in the history of its production as a subject. Even without law, the subject remains enmeshed within a web of relation and mediation by social pressure, institutional discipline, technologies of government other than law such as psychiatry and surveillance, custom, belief, sexuality, memory, trauma, desire, and so on. And even in the radical deprivation of these things, the subject is forced into a relation with their absence, legacy and memory. We should no more be able to imagine an unmediated, bare, subject-in-itself in anomie than we could access an unmediated thing-in-itself behind the glass wall of perception and representation.

With this in mind we should return to Schmitt, the key figure of Agambens attentions. If we keep in mind a proper scepticism about the possibility of true anomie, we might interpret with more sympathy Schmitts insistence on the maintenance at all costs of the relation of sovereign power with a wider order. As I have discussed above, a more engaged reading of Schmitt would place him more firmly within a Weberian trajectory, signalling a concern with the political outcomes of changing social and historical conditions, rather than a single-minded obsession with totemic figures of power and authority. Of course, we need to be on our guard against Schmitts right-wing or fascist persuasions, and not take for granted his answers about who speaks for nations, cultures, classes, religions and other politically decisive groupings. There is much ambiguity in Schmitt about what he is trying to recover or establish; is it the formal and minimal system of the legal, classical European state, which allows a plurality of social and political life to exist except in the theoretical moments of emergency, or is it an existential valorisation of an authentic, unalienated life of national struggle andaffirmation? In this light we should consider the ambiguity of Benjamin too; is his figure of pure violence only possible as an image of impossibility? Extending this analysis, we can detect further problems with Agambens invocation of an anomic outside. In Homo Sacer, the outside appears in the figure of the camp, the localized expression of the state of exception that constitutes the threshold of properly-qualified life within the city. In State of Exception this outside is given as a condition of total indistinction between fact and law, necessity andnorm. They are outsides because, for Agamben, they are the constitutive thresholds that delimit the originary political distinctions of Western politics. Turning to Hobbess state of nature for example, in which homo hominis lupus - man is wolf to men - Agamben explains that, Far from being a prejudicial condition that is indifferent to the law of the city, the Hobbesian state of nature is the exception and the threshold that constitutes and dwells within in it. [50] The state of exception of Homo Sacer is the limit condition of life divested of all its qualities other than the mere fact of living, while the state of exception of the latter book is the limit condition of law blurring into the contingency and facticity of unmediated life. While the attention Agamben gives to these limit conditions is both welcome and called for, we should consider carefully what Agamben is doing to the dialectic(s) of politics. If State of Exception remains trapped within a conceptual horizon of the law, then Homo Sacerremains trapped within the conceptual horizon of the city/state (itself a problematic equation). This has the effect of narrowing our investigative terrain rather than widening it. Agamben reifies the state and the law as originary and constitutive boundaries. By making those boundaries originary, Agamben erases any consideration of the hard historical and political work that was done to make those structures central to the political identity of the West, and more importantly, the world. The Western legal state has only ever been an idealisation of what political authority should look like. By fixing the origins of the modern biopolitical state in Aristotle, and thus affirming the neo-Classical pretensions of modern Europe, Agamben blacks out the long and bloody history of the establishment of the nation-state as the universal unit of political organisation. It is not so much the reification of sovereignty that is the problem, but the reification of the historical story that equates sovereignty with the modern European legal and biopolitical state. It is not so much the reification of the problem of sovereign distinctions, which

is a much more abstract and metaphysical concern, but the reification of certain historicallycontingent sovereign distinctions as originary, such as bare life/political life and law/fact. Given all this, we need to consider not one or two figures of the outside, and not one or two thresholds and dialectics, but multiple outsides and multiple dialectics. While attention is certainly warranted regarding the thresholds of life/bare life and law/fact, we also need serious critical engagement with the numerous other violent dialectics that have been central to the history and production of the present. For example, Agamben pays no attention to the dialectic between the modern and pre-modern that is expressed in Hobbes and Locke in the figure of the native American. He pays no attention to the colonial dialectic between the Enlightened and the immature, as found in Kant. He pays no attention to the dialectic between the state and the international, the so-called anarchic community that has committed so many appropriative and interpretive wrongs against the history of political thought. He pays no attention the dialectic between the international and the beyond-international, which separates those states who have qualified as members of the international community and those who are lawless or failed. He pays no attention to the dialectic between the European-derived international (the universalization of a particular, European mode of political organisation) and the postcolony which inherited that model in the years of decolonisation beginning with India in 1947. These dialectics are open to endless recombination, emerging more recently as the saved and the damned, the civilized and the barbarous, the freedom-loving and the freedom-hating, the good and the evil. We need a pluralization of fields, coupled with an understanding of the historical processes and practices by which sovereignty was made to be about the sovereign, legal nationstate. State of Exception/Permanent State of Exception If, as has been suggested, terminology is the properly poetic moment of thought, then terminological choices can never be neutral. In this sense, the choice of the term state of exception implies a position taken on both the nature of the phenomenon we seek to investigate and the logic most useful for understanding it. [51] There is a final criticism to be made about Agambens treatment of the idea of the state of exception. Thus far, we have made a sustained critical-theoretical investigation into the usefulness and insight of that concept. In this sense, we must agree with Agambens suggestion that the choice of a term implies a position on the nature of the phenomenon and the logic most useful for understanding it. The state of exception is, therefore, a way of understanding both the operation of canonical Western political discourses/structures at their limits and a positioning of contemporary political practices at those limits. As well as capturing the logic of a political phenomenon, the term state of exception implies a political judgement on contemporary political practices - that they are exceptional and therefore perhaps bad, wrong, or more likely interesting, revealing and symptomatic. For these same reasons, however, we find that the usefulness and insight of the concept of the state of exception is undermined by Agambens frequent invocation of the idea of a permanent state of exception. For the most part, the logical operation the term state of exception is taken to mean a limit condition, a constitutive threshold that dwells within the city as sovereign

potentiality. It is the potential for sovereignty to make itself actual by withdrawing the protection of the law, abandoning the subject to a state of lawlessness and violence: the sovereign is the one with respect to whom all men are potentially homines sacri, and homo sacer is the one with respect to whom all men act as sovereigns. [52] The value of Agambens work resides in a sustained investigation into the political dialectics in operation at the thresholds of law and politically-qualified life. Yet the analytical and political value of this very timely logic is undermined by the invocation of a permanent state of exception. For example, in Homo Sacer: the juridically empty space of the state of exception...has transgressed its spatiotemporal boundaries and now, overflowing outside them, is starting to coincide with the normal order, in which everything again becomes possible. [53] And similarly in State of Exception: the state of exception has by now become the rule. [54] These statements do not fit with the complex logic of relationality that Agamben attributes to sovereignty and the state of exception. To invoke a permanent state of exception is to collapse the relational dialectic of norm/exception. Although in Homo Sacerthese comments are somewhat throwaway, in State of Exception Agamben weaves this thesis more fully into his analysis. This is in fact grounded both theoretically and empirically. As such, Agamben invokes Benjamins eighth thesis from his Theses on the Philosophy of History, which partly reads, [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 with this fact. Then we will clearly see that it is our task to bring about the real state of exception, and this will improve our position in the struggle against fascism. [55] The real state of exception of which Benjamin speaks is some kind of revolution, postdialectical epoch, or new messianic age. In historical terms Benjamin is of course right that fascism existed under the permanent declaration of a state of exception. In addition to this theoretical invocation, Agamben provides an extended note on the empirical history of the state of exception. In this, he illustrates that the exceptional delegation of powers from parliament to the executive - establishing executive rule by decree - became normal practice for all European democracies during, and then frequently after, the First World War. He argues that the passage to executive rule is underway to varying degrees in all the Western democracies, with parliaments becoming only secondary actors in the legislative process. Even more pertinently, he maintains that the tendency in all of the Western democracies, is that the declaration of the state of exception has gradually been replaced by an unprecedented generalization of the paradigm of security as the normal technique of government. [56] While we have no quibble with Agambens historical details or interpretation, what he is really saying here is that the current norm was once exceptional, and that it developed from an earlier state of exception or is coming to resemble what was once considered exceptional. It may also be that todays exception will become tomorrows norm. These are no doubt acute political problems and may well be the case historically, but the consequence is that the treatise becomes

no longer an enquiry into the state of exception, but an enquiry into the state of the norm. It also implies a political position on the current norm, in that it attempts to label it as exceptional. Even if all this is the case, we still need a position and a logic regarding the declaration and enactment of contemporary exceptions. Whatever the fate of the norm, whether it is descended from unrepealed emergency powers or coming to resemble what was once exceptional, the value of the state of exception is that it enables us to analyse contemporary exceptions in a dialectical relation with that norm. If we distinguish contemporary exceptions as the limit and threshold of the norm, we can investigate how the one constitutes the other and vice versa. Even if we consider that contemporary sovereign invocations of exceptionality seem to have no clear end point (e.g. that Guantanamo detainees are to be held until the intangible war on terror is over, whatever that might look like), the exceptional practices themselves, and the victims of that exceptionality who find themselves in a state of legal abandonment, are still most incisively understood in terms of an exceptional relation with the norm. The value of the concept of the state of exception is in establishing what is at stake in contemporary expressions of violence and illiberality, in both material and theoretical terms. The state of exception is a sharp way of understanding contemporary political practices as operating at the conceptual and empirical limits of conventional understandings of liberty and security.

Footnotes
[1] Michel Foucault, The History of Sexuality vol. 1, cited in Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life,Stanford University Press, Stanford, California, 1998,.p. 3. [2] Agamben, Homo Sacer, p. 8. [3] Agamben, Homo Sacer, p. 28-29. [4] Agamben, Homo Sacer, p. 83. [5] Agamben, Homo Sacer, p. 183. [6] Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed (a.k.a. the Tipton Three), Composite statement: Detention in Afghanistan and Guantanamo Bay, paragraph 252. Available at http://www.cageprisoners.com [7] Tipton Three, para. 155. [8] Legal counsel to Moazzam Begg, Clive Stafford Smith, quoted in The Guardian, 1-10-2004. [9] Letter from Moazzam Begg, available at image.guardian.co.uk [10] Agamben, Homo Sacer, p. 84.

[11] Hannah Arendt, The Decline of the Nation-State and the End of the Rights of Man,cited in Agamben, Homo Sacer, p. 126. [12] Agamben, Homo Sacer, p. 123. [13] Agamben, Homo Sacer, p. 121. [14] Agamben, Homo Sacer, p. 125 [15] Agamben, Homo Sacer, p. 124. [16] Carl Schmitt, Political Theology, MIT Press, Cambridge Mass. and London, 1985, p. 5 [17] Agamben, Homo Sacer, p. 142. [18] Agamben, Homo Sacer, p. 128. [19] Agamben, Homo Sacer, p. 128. [20] Agamben, Homo Sacer, p. 130. [21] Agamben, Homo Sacer, p. 170-171. [22] Agamben, Homo Sacer, p. 181. [23] Agamben, Homo Sacer, p. 181. [24] Tipton Three, para. 266. [25] Tipton Three, para. 267. [26] Tipton Three, para. 149. [27] Agamben, Homo Sacer, p. 46. [28] Agamben, Homo Sacer, p. 47. [29] Agamben, Homo Sacer, p. 47. [30] Human Rights Watch Annual Report 2005, reported in The Guardian, 14-1-05. [31] Agamben, State of Exception, University of Chicago Press, Chicago, 2005, p. 1. [32] Agamben, State of Exception,p. 22-23. [33] Agamben, State of Exception, p. 31.

[34] Agamben, State of Exception, p. 8. [35] Carl J. Friedrich, Constitutional Government and Democracy, p. 584, quoted in Agamben, State of Exception, p. 8. [36] Agamben, State of Exception, p. 9. [37] In p. 32-40, State of Exception. [38] Agamben, State of Exception, p. 40. [39] Agamben, State of Exception, p. 36. [40] Agamben, State of Exception, p. 62. [41] Walter Benjamin, Critique of Violence, quoted in Agamben, State of Exception, p. 53. [42] Agamben, State of Exception, p. 54. [43] Agamben, State of Exception, p. 55-57. [44] Agamben, State of Exception, p. 50. [45] Agamben, State of Exception, p. 50. [46] Agamben, State of Exception, p. 50-51. [47] Agamben, State of Exception, p. 51. [48] Agamben, State of Exception, p. 51. [49] Agamben, State of Exception, p. 29. [50] Agamben, Homo Sacer, p. 106. [51] Agamben, State of Exception, p. 4. [52] Agamben, Homo Sacer, p. 84. [53] Agamben, Homo Sacer, p. 38. [54] Agamben, State of Exception, p. 9. [55] Walter Benjamin, Theses on the Philosophy of History, cited in Agamben, State of Exception, p. 57.

[56] Agamben, State of Exception, p. 14.