Making Sense of States of Exception

According to Agamben, the state of exception deals with a “new sort of ‘biopolitical’ sovereignty that blurs Aristotelian distinctions between Zoe and bios, between ‘natural life’ and ‘political life’, what is determined and what is not” (Pavlich, 2011). In essence, this means that the current government in power may grant a form of immunity to themselves, and grant and exception from punishment, but this immunity is granted in only states of emergency and crisis. This is seen to be for the better of mankind and the best interest of the public. The government’s power will thus surpass what limits it legally, making it a sort of super power. This was a continuation of the idea of Carl Schmitt, where he states that “Sovereign is he who decides on exception” (Pavlich, 2011). This idea of Schmitt exemplified that the ruling power was able to do whatever they wanted when they declared a state of exception, including actions that impose on the public’s inherent rights.

One example of the government’s ability to employ their ‘super power’ can be seen with Canada’s War Measures Act, which would limit the civil rights of the public, but this war measures act was put into place as it was seen to be in the best interest of the public, by the government. This was done in response to the actions of the FLQ, so the government did what they had to do in Quebec to ensure safety and well-being of the public. As this shows, sovereign power is able to put itself above the law, and essentially do they want and not be bound by legal boundaries of any sort.

Another example that we can discuss (which was looked at in class) is the issues around Guantanamo Bay. The government of the United States (enacted by George W. Bush) created a detainment facility in which human rights are heavily infringed upon, yet this is something that is set up by the government. This is a clear example of how the ruling power can be held above the law and do thing which, if others did, would be held liable and punished by law. The detainees of Guantanamo Bay are treated with no respect, and put through harsh torture, which Mike clarified in class has now been changed to intensive interrogation tactics. This is a direct example of sovereign using their power to do as they please, as they state that this is for the good of the public, but few detainees have actually been charged.

Pavlich, G. (2011). Law & Society Redefined. Don Mills, Ontario: Oxford University Press.

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One response to “Making Sense of States of Exception

  1. You use the War Measures Act (during the October 1970 FLQ crisis) as an example as a state of exception. It would be helpful to unpack this further. For example, you note that “the government did what they had to do in Quebec to ensure safety and well-being of the public”. Was the public exposed to an extraordinary risk? Arguably, public safety is jeopardized by unlawful actions on an ongoing basis. What was it about the ‘October Crisis’ that created a heightened risk to the public? An alternative interpretation of these events would suggest that the War Measures Act was invoked because of the perceived threat to the political regime, rather than the public. This would be consistent with historical invocations of emergency powers.

    Regarding Guantanamo Bay, again, additional clarification would be helpful. How exactly has the legal status of persons detained in this space been defined?