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