Agamben’s State of Exception in Context: A Critical Analysis with Regard to Post-9/11 Jurisprudence

Authors: Stefanos Xenofontos Published date: 15-01-2016 Status: Published

The traditional juristic definition of the sovereign as ‘he who decides on the exception’, which has been introduced by the social and legal philosopher Carl Schmitt in Political Theology, arguably constitutes the clef de voûte which enables us to underpin the philosophy of the state of exception. Whereas exceptions of law under ordinary circumstances operate within a predetermined constitutional order, which provides guidelines on how these situations are to be dealt with, a state of emergency does not need an existing legal order to function. Within this context, the sovereign has the ultimate power to transcend the legal order and impose such measures as deemed necessary to confront the crisis and re-establish order and stability within the nation, usually by invoking the ‘public good’. In Agamben’s work, the concept of necessity has a fundamental role in establishing the state of exception. It has been acknowledged that ‘necessity creates its own law’ and, occasionally, it constitutes the main justification for governments to implement their executive orders, albeit the transgression of the law. In the aftermath of 9/11, the United States faced an exceptional situation of national emergency in which it was deemed urgent to confront a new kind of threat by any necessary means. More than a decade on, and following similar events in other Western countries, it can be argued that the global legal and political order of the 21st century has changed dramatically, manifesting, what it is now evident, a permanent state of emergency. Keywords: political theory, state of exception, ‘force-of-law’, post-9/11 jurisprudence

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