Food for Thought:
This is a multi-part question, intended to facilitate clarification regarding the work of Agamben.
- What is the state of exception?
- How do states of exception come into being?
- What is the legal status of the subjects of a state of exception?
The state of exception according to German theorist Carl Schmitt: “Sovereign is he who decides on the exception” (Pavlich, 2011, p. 157). What this means is that the government or a higher power are in charge and can dismiss the current rule of law and decide the exceptions to a case for example, in case of a state of emergency. The governing body can decide on the exception as they see fit and they do not need authority from anyone else. This allows the governing power to decide how to deal with a particular situation and what measures can be taken and to what extent. This process also does not require decision making by others as a collective group but rather from a few key people in charge; therefore allowing the government to have full control over not only the situation but also the people involved; along with the public. The government; however, excepts themselves from this law which allows the sovereign to maintain their right and to do as they please to others.
There are a number of different ways the states of exception come into being, for example there is the War Measures Act, states of emergency (natural disasters) or crises. In the War Measures Act in Quebec, came about on October 15, 1970 where the Canadian government declared the War Measures Act. The government arranged for the army in Quebec “and restrict[ed] various civil rights elemental to conventional ideas of the rule of law” (Pavlich, 2011, p. 152). This came about because of the tensions taking place in Québec at that time, which was the Front de liberation du Québec (FLQ), “a national liberation movement that emerged in the 1963 with the aim of achieving Québec[s] independence” (Pavlich, 2011, p. 152). James Cross (British trade commissioner) was kidnapped on October 5, 1970 and the FLQ made demands from the Québec government but the government refused to comply; therefore, resulting in the kidnapping of Pierre Laporte (minister in the Quebec government) five days later. Few important political figures stated that the ‘law’ was incapable of meeting the needs of the crisis at hand, and called for ‘emergency powers’; resulting in the deployment of the Canadian army to Quebec. When this occurred a state of exception came about which deferred the rule of law and allowed the state of have full power over the FLQ situation. Throughout this “lots of citizens were arrested and the kidnappers were exiled to Cuba” (Pavlich, 2011, p. 153). According to Pavlich, quite a few people were detained without charge or bail. This clearly illustrates that the state of exception has the power to do anything they want without any consequences to themselves.
The legal status of the subjects of a state of exception, according to Agamben is that people who are caught within “the juridico-political space of the camp, within the state of exception, are stripped of legal status and civic and political rights, becoming legally unclassifiable beings” (Larsen, 2012). What this means is that, legally individuals no longer have rights and just disappear because they can no longer be classified according to law. There are no rules in play with the state of exception to protect the rights of these individuals and they are considered: “bare life”. A bare life is ‘disposable’.
Larsen, M. (2012, Fall). Law and Society (CRIM 3305 handout). Surrey, Canada: Kwantlen Polytechnic University.
Pavlich, G. (2011). Law & Society Redefined. Don Mills, Ontario: Oxford University Press.