Tag Archives: state of exception

Law, Sovereign Power, and States of Exception

The case study I have will review that provides the invocation of a state of exception is the 9/11 terrorists attack on the United States. On September 11, 2001 a terrorist group hijacked four planes, two of which they flew into two skyscrapers in New York City, another plane into the Pentagon destroying a part of it, and the fourth plan crashed in Pennsylvania. The death toll amounted to nearly 3,000 people in the 9/11 attacks. The President of the United States at the time of attack was George W. Bush and as a result Bush declared a state of emergency, “Now, therefore, I, George W. Bush, President of the United States of American, by virtue of the authority vested in me as President by the Constitution and the law of the United States, I hereby declare that the national emergency has existed since September 11, 2001” (Washington’s Blog, 2010).

This historical case of a state of emergency declared by the President of the United States demonstrates the exercise of sovereign power and the creation of a state of exception firstly by the public’s understanding that once President Bush proclaimed a national emergency he active some 500 dormant legal provisions, including those allowing him to impose censorship and martial law. These provisions include enough authority to rule the country without reference to normal constitutional processes, enabling the President to “assign military forces abroad; institute martial law; restrict travel; and in a plethora of particular ways, control the lives of all American Citizens” (Washington’s Blog, 2010).

President Bush launched the war on terrorism on September 20, 2001; he launched 100,000 US troops in Afghanistan to deal with terrorist groups Al Qaeda and the Taliban. The President also established an office of Homeland Security within the presidential Executive Office, leading to Homeland Security creating a Terrorism Screening Center to “consolidate the Government’s approach to terrorism screening.” As a result the No Fly List has been increasing with names of people preventing them from flying because they are now on the Terrorist Watch List, primarily due to having an Arabic sounding name. Homeland Security has also increased the security screenings ongoing at the airport, and there have been multiple expensive additions to ensure the likes of 9/11 do not repeat. I strongly believe that since the President has the power to decide on an exception, such as declaring a state of emergency, I argue that the President either intentionally or unintentionally created international racism towards Muslims, Sikhs, Hindu’s, and other South Asian races. This was executed by declaring publicly that Muslim faith was directly associated and valued by the terrorists, on international television about Muslim belief’s, and how these terrorists were believers of Allah, but besmirched Allah. The President did state that Muslim religion was respected and practiced amongst many in the world including the United States, but this created tension moreover solving the issue and placed blame and slandered the religion and it’s followers. This is a display of sovereign power, starting from George Bush and leading to mass incarcerations of Muslim’s, new stereotypes being created, innocent people placed on no fly lists, and the general society around the entire world gaining a new negative perception of Muslim’s and people who they believed are of Muslim faith. It would never be possible to generalize a certain race on such harsh assumptions until a sovereign declared so, thus leading to the term terrorist and Muslim becoming synonymous around the world after this state of emergency was declared.

Through this exercise of sovereign power and creation of a state of exception the President created a United States military prison, referred to as Guantanamo Bay, located in Cuba that was established to detain dangerous prisoners, interrogate them and prosecute prisoners for war crimes. A prison run by the United States placed in Cuba by state of exception by the President of the United States. This prison was also a forefront of punishment to captives believed to be associated with terrorists groups, they were detained, stripped of their bare life; homo sacer essentially losing all their rights. Detainee’s could be held indefinitely, they had lost their status, basically creating a legal black hole where the detainee’s had no choice but to do as they were told by the United States government officials, until they had enough information to release these individuals.

This sovereign power was justified rhetorically through an appeal of necessity, from the President at the time George W. Bush stating “I can hear you, the rest of the world can hear you and the people who knocked these building down will hear all of us soon.” On September 11, 2001 George Bush was told “American is under attack,” and Bush said he then thought “They had declared war on us, and I made up my mind at that moment that we were going to war” (Walsh, 2008). This sole sentence portrays sovereign power, one individual waging war against terrorism and immediately initiating tactics such as sending U.S. troops to Afghanistan and Iraq, and approving harsh interrogation techniques.

In a conference broadcasted around the world, I have provided a YouTube link for the speech where President Bush states to the Taliban publically to deliver to the United States authorities, all the leaders of Al Qaeda who hide in their land and to also hand over every terrorist and in their support structure to the appropriate authorities. President Bush states “America will never seek a permission slip to defend the security of our people,” (Patriotic quotes, 2001) I enjoy this quote because it clearly depicts the issue of declaring a state of emergency and the simplicity of declaring a war on terror by Mr. Bush himself in comparison to a permission slip, that elementary students get filled out by their parents to go on a field trip, this comparison is directly linked to George Bush as sovereign power and does not need to seek permission, he can do as he pleases simply by stating national emergency for U.S. troops and sending them on a “field trip” to Afghanistan and Iraq.

YouTube links:






1 Comment

Filed under Uncategorized

The State of Exception and Franklin Roosevelt’s “New Deal”

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

State of Exception:

Giorgio Agamben, an Italian philosopher, is widely known for his critique of sovereign power. State of Exception, Agamben’s third volume in a series also comprising of his 1998 Homo Sacer and 1995 Remnants of Auschwitz,  investigated the increase of power structures governments employ in supposed times of crisis.  Within these times of crisis, Agamben refers to increased extension of power as states of exception, where questions of citizenship and individual rights can be diminished, superseded and rejected in the process of claiming this extension of power by a government  (Lentin, n,d.). Agamben states that through the state of exception, “the sovereign ‘creates and guarantees the situation’ that the law needs for its validity-and this circularity characterizes not only extreme regimes, but also the voluntary creation of a permanent state of emergency which has become one of the essential practices of contemporary states… This involves, on the one hand, the extension of the military authority’s wartime powers into the civil sphere, and on the other, the suspension of constitutional norms that protect individual liberties” (Lentin, n.d.).

As stated by Agamben, the state of exception or state of emergency has “become a paradigm of government today” (Raulff, 2004). He stated that the concept was “originally understood as something extraordinary, an exception, which should have validity only for a limited period of time, but a historical transformation has made it the normal form of governance…The state of exception establishes a hidden but fundamental relationship between law and the absence of law” (Raulff, 2004).

The New Deal:

“The Wall Street Boom of the 1920’s produced a season of euphoria”, one where people firmly believed a New Era was emerging and that poverty would soon be vanished forever from society (Schlesinger, 2003). However, according to Arthur Schlesinger, the stock market crash in October 1929 had instead, “exposed the New Era as a mirage” (2003). Schlesinger explains that although Americans had experienced many depressions before, they had never experienced anything like the great depression that followed the Wall Street Crash. He explains that by 1932, “a quarter of the labour force was looking desperately  for work; the gross domestic product was cut in half; the banking system was on the brink of collapse; private charity and local relief were overcome by the rising flood of the unemployed” (2003). In his book, The Coming of the New Deal 1933-1935, Arthur Schlesinger quotes President Franklin Roosevelt during his speech on March 4, 1933 when he stated: “This nation asks for action, and action now…We must act, and act quickly…In this dedication of a Nation we humbly ask the blessing of God. May He protect each and every one of us. May He guide me in the days to come” (2003).

Roosevelt’s speech set up his platform for gaining public support regarding a “state of exception.” As discussed during class, political leaders often try to gain political support, although it is not needed, before obtaining extreme sovereign power and creating a state of exception during a declared state of emergency. Roosevelt did not need permission from the public to declare a state of emergency, for as the President of the United States he already held the power to do so on his own. However, by gaining public support he not only was able to declare an emergency without revolt from society, but was in fact deeply praised for his actions.  It was stated that several days after his infamous speech, people wrote in to the White House saying “It was the finest thing this side of heaven”; and “Your human feeling for all of us in your address is just wonderful,” with many praising Roosevelt like they would to God himself (Schlesinger, 2003).

However, conversely it was also noted that Eleanor Roosevelt called the inauguration “very very solemn and a little terrifying… because when Franklin got to that part of his speech when he said it might become necessary for him to assume powers ordinarily granted to a President in war time, he received his biggest demonstration” (2003).

The New Deal was shorthand for a host of government programs introduced by Roosevelt between 1933 and 1938. The phrase itself originates in Roosevelt’s acceptance speech at the Democratic convention in Chicago, in which he promised “a new deal for the American people” (Cornwell, 2008). Carl Schmitt, a German legal theorist, once stated : “Sovereign is he who controls the exception” (Horton, 2007). Under the New Deal, the federal government proved its sovereign power by greatly extending its power over the economy. Many of the reforms of the 1930s remain embedded in policy today: acreage allotments, price supports and marketing controls in agriculture, extensive regulation of private securities, federal intrusion into union-management relations, government lending and insurance activities, the minimum wage, national unemployment insurance, Social Security and welfare payments, production and sale of electrical power by the federal government, fiat money, and so on.  Industry was virtually nationalized under Roosevelt’s National Industrial Recovery Act of 1933 (Higgs, 1995). Although the New Deal helped many Americans get through the depression, it was a crucial turning point in the history of the U.S. government for politics had never before been so involved in, or exerted more control over, the daily lives of regular Americans (Cornwell, 2008).

Franklin Roosevelt’s exercise of sovereign power was justified rhetorically through an appeal to necessity during his famous inauguration speech as previously mentioned above. The public support he acquired most definitely assisted with many parts of the New Deal to be passed without much scrutiny. According to Stephen Humphrey’s, “Roosevelt’s words in this context are illustrative: ‘I shall ask the Congress for the one remaining instrument to meet the crisis – broad Executive power to wage war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe’(2006).



Cornwell, R. (2008, September 17). The Big Question: What was Roosevelt’s New Deal, and is something like it needed today?. The Independent. Retrieved December 3, 2013, from http://www.independent.co.uk/news/world/politics/the-big-question-what-was-roosevelts-new-deal-and-is-something-like-it-needed-today-932942.html

Higgs, R. (1995). How FDR Made the Depression Worse. Mises Institute, 13(2). Retrieved December 3, 2013, from http://mises.org/freemarket_detail.aspx?control=258

Horton, S. (2007, July 1). State of exception: Bush’s war on the rule of law.(George W. Bush). Harper’s Magazine, p 81.

Humphreys, S. (2006). Legalizing Lawlessness: On Giorgio Agamben’s State of Exception. European Journal of International Law, 17(3), 677-687. Retrieved December 3, 2013, from http://ejil.oxfordjournals.org/content/17/3/67

Lentin, R. (n.d.). Racial State, State of Exception. State of Nature. Retrieved December 3, 2013, from http://www.stateofnature.org/?p=6464

Raulff, U. (2004). Interview with Giorgio Agamben. hein online. Retrieved December 3, 2013, from http://heinonline.org/HOL/LandingPage?handle=hein.journals/germlajo2004&div=56&id=&page=

Schlesinger, A.M. (2003). The coming of the New Deal, 1933-1935. Boston: Houghton Mifflin.

1 Comment

Filed under Uncategorized

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.



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

Filed under food for thought

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.

1 Comment

Filed under Musing