Agamben, Giorgio. 2005. State of Exception. Translated by Kevin Attell. Chicago.
Five years ago, if we’d been handed a crystal ball and shown a scene from 2020, I think most of us would have been floored. Pre-COVID, it’s difficult to imagine any democratic nation closing businesses, locking people in their homes, and muzzling them with bits of cloth as soon as they emerge from house arrest. Yet this is precisely what happened in 2020, as lockdowns, mask mandates, and social distancing became the new political lingo. And we in the democratic West swallowed it all like ice cream.
We swallowed it because we were told it was temporary. But it hasn’t been. Today, COVID-19 justifies as many acts of government intervention as it did in 2020—if not more. Most major European countries went into COVID hibernation over Christmas, and vax-mandates are multiplying. The US Supreme Court recently stayed an OSHA rule dictating that every company with over 100 employees vaccinate its staff, whether they want the jab or not. Justin Trudeau has invoked the Emergencies Act to stymie his truck-driving electorate, and Belgium is frantic to keep the French freedom-convoy from entering Brussels. All over the West, governments are quick to act and slow to stop acting. It’s a disturbing trend—not because emergency measures are never justified, but because the West hasn’t sufficiently considered whether these particular measures are. We’ve gone passive, simply allowing abnormality to become the norm.
Read in the context of COVID-19, Giorgio Agamben’s State of Exception helps explain our troubling plasticity in the hands of government. The state of exception, as Agamben defines it, is ‘the suspension of law,’ an ‘ambiguous zone’ in which the ruler creates and enforces rules with no legal standing, while real laws aren’t implemented. His book opens with a history of the state of exception, starting from the French Revolution and the état de siège fictif (a fictional siege giving power to the military commander), moving on to emergency measures passed in France, Germany, Switzerland, Italy, and England during World War I, and wrapping up with various US presidents (Abraham Lincoln, Woodrow Wilson, FDR, and George W. Bush) who expanded the executive prerogative during national crises. Agamben claims that, during the twentieth century, the state of exception became ‘the dominant paradigm of government in contemporary politics.’ Today, democracies exist in ‘a permanent state of emergency.’
Agamben spends most of the book arguing towards his major conclusion, summarised in the final three pages: The state of exception gives us the conceptual tools necessary to do politics—that is, to deliberate about the relationship between law and law enforcement. The state of exception purports to combine ‘power’ (law) and ‘authority’ (law-enforcement) in the person of the ruler. But it doesn’t actually do it. In the state of exception, law and enforcement are completely distinct, since the reigning authority has no regard for the law, and the law has no real power. The state of exception thus uncovers the difference between the legal framework and the authority which enforces it, between ‘law’ and ‘life.’ And this difference is essential for politics, which involves determining some sort of connection between what the law says and how it’s enforced. Without the state of exception, Agamben argues, we wouldn’t know how to separate law from life, and therefore we wouldn’t be able to do politics. Unfortunately, this is exactly the plight of modern democracies. We’ve lost the state of exception by normalising it, deadening its power to motivate political thought—and when this happens, says Agamben, ‘the juridico-political system transforms itself into a killing machine.’ The solution is to make the state of exception what it was before: truly an exception.
But how do we do this? And how was the state of exception normalised to begin with? Agamben argues that governments create the need for a state of exception by speaking in terms of crisis. The suspension of law is never objectively necessary; necessity ‘entails a subjective judgment, and…obviously the only circumstances that are necessary and objective are those that are declared to be so.’ Political rhetoric, not objective fact, grounds and justifies the state of exception. This claim fits well with Agamben’s major example, the Roman iustitium (‘the suspension of the law’), which occurred if and only if the senate issued a senatus consultum ultimum (‘final decree of the senate’) and explicitly declared a tumultus (‘tumult’).
Turning from Rome to the modern West, it’s clear that COVID-policies are rooted in a rhetoric of crisis. Leaders as diverse as Xi Jinping, Boris Johnson, and Scott Morrison announced a ‘war’ on the coronavirus, while Joe Biden recently referred to the disease as a ‘tough adversary.’ This war on COVID has left politicians freer to rework key political concepts. In a recent NBC interview, for example, Joe Biden justified his COVID-policies by redefining what it means to be free: ‘I love how people talk about personal freedom. If your exercising personal freedom puts someone else in jeopardy, their health in jeopardy, I don’t consider that being very [inaudible] with freedom.’ This wasn’t the American view five years ago. But maybe it is today. Agamben reminds us that whoever defines our political terms decides when we enter the state of exception—and keeps us from leaving it. If we wish to reinstate the normal application of law, we must begin discussing hard issues: what kind of crisis COVID constitutes, and what freedoms we should sacrifice in the name of public health.
State of Exception is a difficult work, and its main conclusion is unintuitive. Why must we actually enter the state of exception if we hope to distinguish between law and its enforcement, and thus to do politics? Surely we can differentiate between these concepts without seeing the law suspended, especially once we’ve read Agamben’s book. A normalised state of exception does make politics impossible, not because it obscures the categories of our political theory, but because it actively prevents us from discussing these categories in honest political debate. The answer isn’t a state of exception, but free and open discourse about good law and effective implementation—which happens just as easily (perhaps more so) within the ordinary paradigm of law-enforcement. The West should fight tyranny by talking about freedom. And, despite its conceptual difficulty, Agamben’s book will help us to do this.