What is the state of exception?
According to Schmitt, “Sovereign is he who decides on the exception” (Schmitt, cited in Pavlich 157). His concept implies that the government can decide to declare a state of exception, and could suspend the entire existing juridical order. There is no limit to what they can do (e.g., the state can infringe on individual rights). In addition, they can justify their actions; such as an arrest without question or use force towards citizens without being held accountable. They can decide on cases that are deemed a threat to national security. Agamben’s concept of the state of exception, states “the state of exception is both the original relationship between sovereign power and life and at present, a paradigm of government, adding that modern governments claim and exercise the power to displace the rule of law in order to resolve certain problems, generally related to security (Larsen, 2012). Adding, “the state of exception exists as a potentiality underpinning all relations between individuals and the state” (Larsen, 2012). My take from Schmitt and Agamben’s concepts is that, the state of exception gives extra legal form of power to the government and they can use that power to suspend rights that are protected under the Charter of rights and freedoms, gives more power to the police and the military to detain and arrest citizens.
H ow do states of exception come into being?
The state of exception comes in play when the government believes there are threats to national security and it can be applied to disasters or crisis as well. For example, after the 2010 earthquake in Haiti, the Haitian government declared a state of emergency. The United States responded by sending military troops to Haiti to enforce the state of emergency (e.g. making sure that aid is distributed fairly). Some countries responded by providing financial aid, sending volunteer Doctors and aid workers to assist the victims of the disaster (Petrou). In the United States, the Bush Administration used the state of exception in response to the terrorist attacks of September 11, 2011. Citizens or members of a group that are suspected of terrorism were rounded up, arrested without following the normal legal procedures (e.g. the state does not have to justify why they are arresting these individuals). The government bypasses juridical order that requires due process, (e.g. respecting or recognizing rights of citizens) in cases that are characterized by extreme “necessity” (Larsen, 2012). After September 11 2001, the Bush administration used national security; suspension of law and of legal norms to justify violation of human rights at Guantanamo Bay detention camp and Abu Gariab detention centre in Iraq. However, I believe the state of exception that is applied towards state of emergencies (e.g. disasters and terrorism acts) are set up as ideas of control as well as; instilling fear in the public and promote political agendas. The Bush administration’s “war on terror”, called on Americans and other nations to join in the fight against terrorism (Bush). This political issue may leave an impression in people’s minds that, Muslims are violent and a belief that Islam is a religion that glories the killings of innocents and a twisted religion that serve an evil end. Adding to that, Reverend Franklin Graham called Islam “a very evil and a very wicked religion”, and called for people to burn the Qur’an (Durkin). Although the war on terror implicates a small subset of Muslims, people do not distinguish with who the enemy is; instead, our views implicate Muslims more generally as threatening and violent.
What is the legal status of the subjects of a state of exception?
Agamben demonstrates the status of the subjects of a state of exception with the “bare life” (Larsen, 2012). “Individuals capture within the state of exception, are stripped of legal status and civic and political rights, becoming legally unclassified beings” (Larsen, 2012). In addition, they are included in the law and in the political community only through a relationship of exclusion- the ban.” in other words, individuals within the state of exception have no rights. “Bare life” is a mode in which life is actively and continuously excluded, Individuals are set apart from others (e.g. in concentration, refugee or military camps). Individuals in this situation have no protection of the law; implying that they can be subjected to violence and abuse. The actions that are committed against these individuals cannot be legally judged because they are situated in an area without respect to the law. The individual is an outlawed citizen, the exception to the law, and yet he/she is still subject to the penalty of death and therefore still included, in the very act of prohibition, within the law. For example, the detainees of Guantánamo and Abu Gariab do not have the status of Prisoners of War; they have no legal status. They are subjected to cruel and unfair punishment; they have no legal existence. The detainees in these camps are denationalized and stripped of all the citizenship rights and are erased as legal subjects.
Bush, George W. “The War On Terror.” Vital Speeches Of The Day 72.6 (2006): 162-164. Academic Search Premier. Web. 15 Nov. 2012.
Durkin, Tish. “God Save Us (And Allah Too) From The Muslim Bashers.” National Journal 34.36 (2002): 2525. Academic Search Premier. Web. 17 Nov. 2012.
Larsen, M. (2012, Fall). Law and Society (CRIM 3305 class handout). Surrey, Canada: Kwantlen Polytechnic University.
Pavlich, G. (2011). Agamben: Law’s Vacuous Force in Exceptional States. In Law & society redefined (pp.157-159). Don Mills, Ont: Oxford University Press.
Petrou, Michael. “SPECIAL REPORT: Horror in Haiti: After the Earthquake, the Desperate Fight for Survival Amid the Ruins.” Maclean’s Feb 01 2010: 18-. CBCA Complete. Web. 15 Nov. 2012.