States Of Exception

Food for Thought:

  1. What is the state of exception?
  2. How do states of exception come into being?
  3. What is the legal status of the subjects of a state of exception

A State of exception is a process where the government allow the rule of law to be dismissed for a certain issue. (E.g. War Measure Act, Guantanamo Bay). The government usually gives the public reasons as to why they are choosing to override this rule of law so there is not an uproar from the public. “Italian philosopher Giorgio Agamben has elaborated on the historical effects of the juridical concept of the state of exception, recalling the definition of this concept formulated during the early 1920s by German legal theorist Carl Schmitt. According to Schmitt, the state of exception implies a “suspension of the entire existing juridical order.” (Bellina and Bonifazio) Carl Schmitt believed that a specific declaration is required for the government to implement a state of exception. He believed that crisis and emergency were the normal environment rather than an exception. Any government action that did not go through the full legal process was one that he believed was permitted to implement based upon a constant state of exception. A state of exception places the branch of government implementing such a state into a position of power much greater than that granted by the laws of a given country. The government wields power as he or she sees fit. Individuals no longer have the specific rights granted them by the organizing documents of their country. The government states that these individual rights are suspended in the best interest of the people and the country.

An example of the state of exception being used is the war measures act during the October Crisis which was a series of events triggered by two kidnappings of government officials by members of the FLQ during October 1970 in the province of Quebec. some of the things that this allowed the government to do was: (a) censorship, and the control and suppression of publications, writings, maps, plans, photographs, communications, and means of communication; (b) arrest, detention exclusion, and deportation; (c) control of the harbors, ports, and territorial waters of Canada and the movements of vessels; (d) transportation by land, air, or water and the control of the transport of persons and things; (e) trading, exportation, importation, production, and manufacture; (f) appropriation, control, forfeiture, and disposition of property and of the use thereof. This was to protect the safety of Canadians as prime minister Trudeau said in his speech. Individuals who are the arrested or suspected of being involved in anything that the government believes is not right are then stripped of their rights and civil liberties and the government has the freedom to pretty much do whatever they like to these people.

The state of exception gives the government all the power. We are lead to believe that this is for the greater good of all. But that is not always the case. People that are in Guantanamo Bay because of the war on terror are put under extraneous methods of torture. Many of these men are held with no evidence. this does not really seem to be helping anyone. The power which is supposed to help everyone and keep them safe has really changed to the US government in this case to hurt presumably innocent men for no real reason. We can see that even though we are led to believe that this is being done for the best interest of the public there is a hidden agenda and the government is given to much power and there is no consequences for their actions that is why they are able to continue doing the things they do.


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



Filed under Musing

2 responses to “States Of Exception

  1. You note that “A State of exception is a process where the government allow the rule of law to be dismissed for a certain issue”. It is important to note that the law is not dismissed, repealed, or modified by the state of exception – rather, it is suspended (often temporarily), allowing sovereign power to circumvent legal barriers to action.

    You note that “The state of exception gives the government all the power.”. Agamben would phrase this differently. He would note that the state of exception *reveals* the power of the sovereign, which is always present as a potential. It is not that the state of exception grants the government new powers, but that the state of exception illustrates the possibility for extralegal sovereign power that exists at all times beneath the veneer of legality.

    What is the legal status of the subjects of a state of exception? What, for example, is the legal status of a detainee at Guantanamo Bay?

    • akb2012

      The legal status of the subjects of a state of exception are is that they have no legal status and no civil or political rights. They are known as legally unclassifiable beings. They are known as homo sacer meaning they can be killed but not murdered this means that since they no longer have any legal status they they cannot be unlawfully killed. A detainee at Guantanamo Bay has no access to what charges are against them or due process because they do not have access to these rights while they are detained.