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Food for Thought: Law, Sovereign Power, and States of Exception

We dedicated this week’s class to an exploration of the complicated and troubling questions about the relationship between legality, legitimacy, and power that emerge from the work of Giorgio Agamben and other theorists of exceptionality.

For our final ‘food for thought’ exercise for the term, I would like to offer two options. You may choose to respond to either of these questions (but not both!).

1. Regarding the rhetoric of exceptionality

During my presentation on this topic, I suggested that, in the context of late modernity, the invocation of a state of exception involves two related moments or actions:

  1. The sovereign decision, as discussed by Agamben. This involves the opening-up of a zone of exceptionality in relation to an individual (on the basis of a deemed status), a space, or a period of time, and;
  2. A discursive act whereby the sovereign decision – the exercise of sovereign power – is explained and rationalized through an appeal to necessity / crisis / emergency

A great deal of socio-legal research focuses on the first moment / act, but it is important to note that those able to exercise sovereign power generally seem to be compelled to give an account of their decisions that justifies the state of exception while simultaneously affirming a commitment to legality.

For this food for though question, I would like you to select an example or case study that fits the definition of a state of exception. This can be from any historical period, and any location. Your post should:

  1. Provide an introduction to the case study / example
  2. Explain how this case study / example demonstrates the exercise of sovereign power and the creation of a state of exception (drawing on concepts from Pavlich’s chapter)
  3. Explain how this exercise of sovereign power was justified rhetorically through an appeal to necessity

For part 3, I am particularly interested in primary source documents or direct quotes from politicians or government officials. Please provide links and excerpts.

2. Regarding bare life and resistance

To be the denizen of a camp or normalized state of exception is, according to Agamben, to be reduced to the status of bare life – life excluded from law / politics. In explaining this, I referred to Arendt’s important comment about “the right to have rights” (a right that one cannot claim as homo sacer or bare life). This raises some interesting and important questions, especially when we consider it in light of Foucault’s claim that all exercises of power necessarily imply resistance:

What possibilities for resistance exist for those whose status is that of homo sacer?  Put differently, is it possible for those who are subject to a state of exception and therefore cast outside of the sphere of ‘normal legality’ to resist sovereign power? If so, how? On a related note, if it is the exercise of sovereign power that creates the juridico-political space of the camp and places people into this space, how can people exit the camp? Is it possible for persons to move from the status of homo sacer to a ‘legal’ status, despite the decision of the sovereign? If so, what kind of power are they exercising?

For your response, write a post that reflects on one or more of these questions. You should respond to the question and provide examples to support your position.

Posts written in response to either of these questions should be submitted before next week’s class.




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Racial Profiling: Critical Race Theory and Michel Foucault

Alternative Food For Thought:
You may write a post that outlines three sections of your term paper – the description of your topic and the two analytical sections that explain the topic using your chosen approaches.
This gives you an opportunity to receive some additional feedback regarding key ideas from your term paper.

Instead of addressing the original blog, I chose to do the alternative food for thought question because I felt that this opportunity should not be missed. By doing this topic, I feel that Mike gets a glimpse of our papers and could provide us with his opinions and constructive criticism which will help us better our assignment before the due date.
My term paper will address the very debatable and controversial topic of racial profiling in the Canadian society (and a few comparisons to United States), with a particular focus towards law enforcement. Racial profiling has been prevalent in Canadian history and in modern day since many citizens observe this as an ongoing issue. Racial profiling is the act of a police officers singling out individuals from visible minorities and giving them the title of being criminal. I am narrowing down the victims of racial profiling by focusing mainly on two groups have been constantly targeted solely based on their appearance, Muslims post 9/11 and African-Canadians. There are few members of law enforcement that successfully acknowledge racial profiling to be a concerning and continuous issue, where a large number of them disregard the issue as whole. The society needs to come together to eliminate racial profiling in order to live peacefully without the fear of being victimized by those in whom we bestow trust and power.
The first theory I chose to use to address and analyze my topic is critical race theory. In my opinion, the critical race theory goes hand in hand with my topic after the class lecture on critical legal studies and the presentation on “Stop and Frisk Program” implemented by the New York Police Department. What is critical race theory, critical race theory examines the relationship between power, race, and law. Critical race theory is about race and confronting racism which seem to be deeply rooted in many aspects of Canadian and American society (Pavlich, 2011). According to the UCLA School of Public Affairs: “ Critical race theory recognizes that racism is engrained in… [North American] society. The power structures are based on white privilege and white supremacy, which perpetuates the marginalization of people of color”. In regards to race, theorists of critical race would suggest that racial profiling is responsible for reproducing unequal race relations (Pavlich, 2011).
The second theorist I will draw upon is Michel Foucault. Some concepts in Michel Foucault’s theory of power-knowledge which I want to and will apply are the notions of governmentality, power, and discipline in the context of the racial profiling of Africans and Arabs. From my understanding of Foucault’s work, would likely argue that “racial profiling is an expression of power” (Morrison, 2007). For Foucault, power is that which represses a class or individuals. Morrison states that “Racism is, for Foucault, necessary to the State: only with racism can state killing be justified, and only with racism can the State exercise its sovereign power” (2007). From this view racial profiling instead of criminal profiling is a demonstration of racism used by members of law enforcement to achieve a kind of “control” if you will, over society.

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State of Exception – Laws, Rights and Social-History.

States of exception are discussed and how they interact with persons by recreating them as bare life, a mere biological identity rather then a legal one.  Such examples may included internment and concentration camps.  Aside from defining such an area, it is also shown how these states came into existence.  Like the World War, the October Crisis of 1970 and contemporary Guantanamo Bay.  The legal status of the exception people bleeds into the issue.  Like what, if any did they have?  How where they seen?  Received?  Why?

States of exception are exactly as they sound, an exception from the rule.  These can be a mixture of a physical space and/or temporal space.  Meaning that it can be linked to a geographical area like Guantanamo Bay, or just be installed temporarily like internment camps.  In it a person is stripped of their rights as a citizen and re-catalogued as a biological identity.  As Agamben describes it, a person is involved in two spheres.  A biological sphere containing their domestic life and their so aptly named political sphere (Pavlich 2011).  These people there have no rights under the law, although they are people the courts, cannot or will not identify them as being a particular type of person.  Be it citizen, foreigner, etc.  To do such would have to apply rules of interaction and association with them.  Such as citizen, to not be under indefinite dentation, to not be tortured or otherwise abused.

How these states came into existence is mainly through sovereign power and legislation.  As to sovereign power it is the rulers who decide what will be the exception in so far as to when to suspend law and when to create the areas of exception from law.  But mostly it sprouts from necessity.  Marshal Law and War Measures Act are some legal responses to such a perceived  necessity.  During World War II, internment camps. where created for those of enemy descent.  Meaning those who were determined to be of the same heritage of those of which the war was against, like Japanese and German.  Both mobilized the military as an occupying identity, suspended civil rights and the lines between police and the military blur as military authority was enhanced allowing the police to investigate. The mobilization of war production (tanks, military, guns).  By doing this it allowed normalizing means of enforcement in the streets and the rounding up of those believed to be enemy emigrants.  Also allowing guards at doors and public areas, censorship of the media through the rationale of jeopardize of state secrets and home moral (personal communication November 16, 2012, Law and Society Crim 3305).  This is important because by suspending rights and having means of war production on the streets enforces the authority of arresting officers.  Those opposed to this would have little to no recourse depending on their legal status.  Labelling theory also applies here.  By further interacting with a particular group of people it serves to re-enforce the idea that the people they are detaining are criminals.  This helps the public to other the detained people by associating with a criminal element.  By censoring the press the amount of information about the existence and of how they were treated.  Like the scandal with Guantanamo Bay.  Although there is proof of erogenous acts committed this is a publication ban on the remaining pictures that had not been circulated.

Why these states of exception come into being are usually to degrade, isolate and sometimes get rid of a person all together, like a concentration camp.  These camps where created to house, what many saw only as biological identities.  They striped German citizens of any and all legal standing before the courts and created an exception within the camps.  This is usually the case of isolating the person in preparation of doing ‘crime’ to that person.  As the person is stripped of their rights they are not people under the law, they have no standing in law.  This creates a unique space for them.  As they are described as ‘animals’.  Because as animals, they cannot commit crime and inversely crime cannot be committed against them.  For instance, tiger mauls a person.  The tiger is not put on trial for assault.  A person mauls a rights-stripped biological identity, they are not brought against the law, because the person is not recognized under the law.  As to sovereign power involvement, it is they who decide what will be the exception in so far as to when to suspend law and when to create areas of exemption form the law.  As well as how the excepted are dealt with.  But as Prof. Larsen states, “these states of exception are not places of lawlessness”.  No, they are just the opposite.  “Steeped in law” (personal communication November 16, 2012, Law and Society Crim 3305).

States of exception are born out of a perceived necessity, a response to an ‘emergency’ situation.  And are used as a warehouse to store biological identities, those stripped down to bare life.  Inside these areas they are not recognized as people by law and through law.


Pavlich, G. (2011). Michel Foucault: The Power of Law and Society. In Law & society redefined (pp. 136-151). Don Mills, Ont: Oxford University Press.

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