The Exception To The Rule

This week’s discussion was detailing the historical and socio-legal implications of states of exception as described by Giorgio Agamben. The state of exception refers to a situation between the sovereign power and law with respects to perceived times of emergency. It allows the sovereign the power to decide when there arises a situation that requires immediate action and an exception to the rule of law. The sovereign has the power to suspend the rule of law for certain groups of people or areas while exempting themselves from it. Generally it is required that the sovereign create a moral panic to illicit the “consent” of the public and create a moral panic. We can see examples of this in the invocation of the War Measures Act by Pierre Trudeau in 1970 or the Declaration of a War on Terror by George W. Bush.

States of exception can come to be in a variety of ways for a variety of reasons. Martial law has recently become a reason to declare a state of exception due to the increasing hostility in the middle east and the ineffective nature of undemocratic styles of government. A state of exception can also be declared in the wake of a disaster or crisis, as a war measures act, or anytime where a state of emergency requires immediate action and exception. It is often used to skirt around law and procedure to get results faster. All that is required to pursue this option is a claim to necessity deemed sufficient enough to suspend the rule of law for the operation of the sovereign to be free from the constraints of the formality of law.

Subjects of a state of exception are referred to by Agamben as “Homo Sacer” or bare life. They are legally unclassifiable beings that may suffer the violence of law but do not retain the protection or benefits as a member of the human race. They are disposable because no law seeks to protects their ambiguous status. I find the most interesting part of Agamben’s theory is the notion that subjects may be killed, but not murdered. I find the paradox between law and the “greater good” to be particularly interesting. Law is based on definitions and context. The term murder cannot apply to an act unless the people involved are subject to the law. The term murder exists to define the act of killing a person who is protected under the law. We do not regard killing an animal as murder because animals are considered property according to the law. Similarly, Homo Sacer simply exists in the broadest sense of the word as a life. The subjects of a state of exception do not even gain the protection of property. They are therefore name-less and face-less in the pursuit of the greater good. To be a human being is to imply membership to a club designed to protect and govern the actions of other club members. Homo Sacer is a group that is exterior to the club because provisions have been made to exclude them by the sovereign power. Agamben’s concentration camp model illustrates this point very well. The legal status of the person depends where they are situated in the camp. It is possible to be “in” the camp, on the threshold, or outside of the camp. The state can be temporal or spatial in nature and the camp is a an example of a space that is created legally, but not a legal space.

References:

CRIM 3305-Law and Society Handout-Mike Larsen

Lecture CRIM 3305-Law and Society October 16th 2012- Mike Larsen

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3 Comments

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3 responses to “The Exception To The Rule

  1. Good overview of the concept of a state of exception. You mention the concept of a moral panic in relation to the justification of states of exception. This is an important point, and I would be most interested in reading more about your thoughts on the connection.

    *Excellent* discussion of the ambiguous status of homo sacer. The depiction of homo sacer as being ‘exterior to the club’ is a useful illustration of the status of bare life, and of Agamben’s notion of ‘inclusive exclusion’. Homo sacer’s relationship to the ‘club’ (ie. the way that homo sacer is included in relation to the club) is purely through exclusion.

    What do you make of Agamben’s argument that the state of exception has become a paradigm of government?

  2. I would argue that Homo Sacer’s inclusion to “the club” is not purely through exclusion but rather through the notion that they should be included and are not. Morality dictates that all persons should be accepted, but for Homo Sacer only certain inclusions apply. They are still classified as human beings, but they are not for utilitarian reasons accepted with respects to law. This creates a system by which some individuals “slip through the cracks”.

    As with any legal issue, it is not considered important to the general population unless it applies to them. The moral panic that was created to bring about the state of exception has come and gone. i would argue that Homo Sacer is simply a small group of forgotten souls who exist to serve the state. They serve the state in several ways. First, they may provide the state with information by which to prevent certain harms. Second, they exists to serve as a reminder of the awesome power of the sovereignty. Lastly, they exist to demonstrate to the public that the state is in fact looking out for their best interests. Obtaining the consent of the public is tricky business that relies heavily on creating a believable crisis by which to suspend the rule of law. The sovereignty need only convince the majority of the absolute necessity.

    I would argue that the control of the state is akin to the structure that children require. Society needs to feel protected and comfortable , but also have limits and expectations imposed upon them. The relationship that one has with the state is not unlike the relationship a mother and child have. The mother created the child and helps set firm guidelines by which the child obeys to avoid negative consequences. Individuals are undeniably shaped by the “parenting” of the state. When one’s mother comes to the them with a problem and asks for help, most children are happy to follow with little explanation needed. I would argue that the state works in the same way. It is an expectation for compliance based on the lifetime of “loving care” that the state has given to its members.

    Society has allowed the state of exception to become normalized through blind trust. It is a small group of people who usually strongly oppose certain actions of the state. Largely the population has entrusted the state whole-heartedly to carry out a utilitarian function. Many assume that if the government feels that something is necessary then they must know better. Individuals rarely feel as though they are as strategic and informed as the government and therefore they are the best people to make decisions on their behalf (mother knows best). I would argue that the main reason for the normalization of exception is because the exception rarely applies to the majority. it is difficult for most people to form opinions on political issues that don’t effect them. This is how the marginalization of Canada’s indigenous population has continued for so long. Out of sight, out of mind.

  3. This statement:
    “I would argue that Homo Sacer’s inclusion to “the club” is not purely through exclusion but rather through the notion that they should be included and are not. Morality dictates that all persons should be accepted, but for Homo Sacer only certain inclusions apply. They are still classified as human beings, but they are not for utilitarian reasons accepted with respects to law. This creates a system by which some individuals “slip through the cracks””

    is profoundly interesting. Excellent food for thought. The notion that homo sacer represents not only bare life but bare life in a context where life ought to mean more is compelling. A few years ago, I gave a paper at a conference in which I argued that Agamben’s theorization – on its own – does not acknowledge the possibilities for resistance and the assertion of political status on the part of persons deemed to be ‘bare life’. Your remarks fit with this line of discussion.

    It is interesting that you have described bare life as a ‘small group of forgotten souls’. This is precisely how Bauman approaches the question in his excellent book ‘Wasted Lives’ (I highly recommend it!). He talks about the populations abandoned – legally, politically, and certainly in terms of moral obligations – through the advancement of modernity.

    Terrific insights. This comment was a pleasure to read.