parliament two days later. The state of siege remained in force until October 12, 1919.
Although the activity of parliament, which was suspended during the first six months of
the war, recommenced in January 1915, many of the laws passed were, in truth, pure and
simple delegations of legislative power to the executive, such as the law of February 10,
1918, which granted the government an all but absolute power to regulate by decree the
production and trade of foodstuffs. As Tingsten has observed, in this way the executive
power was transformed into a legislative organ in the material sense of the term (Tingsten 1934, 18). In any case, it was during this period that exceptional legislation by executive
[ governativo] decree (which is now perfectly familiar to us) became a regular practice in the European democracies.
Predictably, the expansion of the executive’s powers into the legislative sphere con-
tinued after the end of hostilities, and it is significant that military emergency now
STATE OF EXCEPTION
177
ceded its place to economic emergency (with an implicit assimilation between war and
economics). In January 1924, at a time of serious crisis that threatened the stability of
the franc, the Poincaré government asked for full powers over financial matters. After a
bitter debate, in which the opposition pointed out that this was tantamount to parlia-
ment renouncing its own constitutional powers, the law was passed on March 22, with a
four-month limit on the government’s special powers. Analogous measures were brought
to a vote in 1935 by the Laval government, which issued more than five hundred decrees
“having force of law” in order to avoid the devaluation of the franc. The opposition from
the left, led by Léon Blum, strongly opposed this “fascist” practice, but it is significant that once the Left took power with the Popular Front, it asked parliament in June 1937
for full powers in order to devalue the franc, establish exchange control, and impose
new taxes. As has been observed (Rossiter 1948, 123), this meant that the new practice
of legislation by executive [ governativo] decree, which had been inaugurated during the war, was by now a practice accepted by all political sides. On June 30, 1937, the powers
that had been denied Blum were granted to the Chautemps government, in which
several key ministries were entrusted to nonsocialists. And on April 10, 1938, Édouard
Daladier requested and obtained from parliament exceptional powers to legislate by
decree in order to cope with both the threat of Nazi Germany and the economic crisis.
It can therefore be said that until the end of the Third Republic “the normal procedures
of parliamentary democracy were in a state of suspension” (124). When we study the
birth of the so-called dictatorial regimes in Italy and Germany, it is important not to
forget this concurrent process that transformed the democratic constitutions between
the two world wars. Under the pressure of the paradigm of the state of exception, the
entire politico-constitutional life of Western societies began gradually to assume a new
form, which has perhaps only today reached its full development. In December 1939,
after the outbreak of the war, the Daladier government obtained the power to take by
decree all measures necessary to ensure the defense of the nation. Parliament remained
in session (except when it was suspended for a month in order to deprive the communist
parliamentarians of their immunity), but all legislative activity lay firmly in the hands of the executive. By the time Marshal Pétain assumed power, the French parliament was a
shadow of itself. Nevertheless, the Constitutional Act of July 11, 1940, granted the head
of state the power to proclaim a state of siege throughout the entire national territory
(which by then was partially occupied by the German army).
In the present constitution, the state of exception is regulated by Article 16, which De
Gaulle had proposed. The article establishes that the president of the Republic may take
all necessary measures “when the institutions of the Republic, the independence of the
Nation, the integrity of its territory, or the execution of its international commitments are seriously and immediately threatened and the regular functioning of the constitutional
public powers is interrupted.” In April 1961, during the Algerian crisis, De Gaulle had
recourse to Article 16 even though the functioning of the public powers had not been
interrupted. Since that time, Article 16 has never again been invoked, but, in conformity
with a continuing tendency in all of the Western democracies, the declaration of the
178
HOMO SACER II, 1
state of exception has gradually been replaced by an unprecedented generalization of the
paradigm of security as the normal technique of government.
The history of Article 48 of the Weimar Constitution is so tightly woven into the history
of Germany between the wars that it is impossible to understand Hitler’s rise to power
without first analyzing the uses and abuses of this article in the years between 1919 and
1933. Its immediate precedent was Article 68 of the Bismarckian Constitution, which,
in cases where “public security was threatened in the territory of the Reich,” granted the emperor the power to declare a part of the Reich to be in a state of war ( Kriegszustand ), whose conditions and limitations followed those set forth in the Prussian law of June 4,
1851, concerning the state of siege. Amid the disorder and rioting that followed the end
of the war, the deputies of the National Assembly that was to vote on the new constitu-
tion (assisted by jurists among whom the name of Hugo Preuss stands out) included an
article that granted the president of the Reich extremely broad emergency [ eccezionali]
powers. The text of Article 48 reads, “If security and public order are seriously [ erheblich]
disturbed or threatened in the German Reich, the president of the Reich may take the
measures necessary to reestablish security and public order, with the help of the armed
forces if required. To this end he may wholly or partially suspend the fundamental rights
[ Grundrechte] established in Articles 114, 115, 117, 118, 123, 124, and 153.” The article added that a law would specify in detail the conditions and limitations under which this presidential power was to be exercised. Since that law was never passed, the president’s emer-
gency [ eccezionali] powers remained so indeterminate that not only did theorists regularly use the phrase “presidential dictatorship” in reference to Article 48, but in 1925 Schmitt could write that “no constitution on earth had so easily legalized a coup d’état as did the Weimar Constitution” (Schmitt 1995, 25).
Save for a relative pause between 1925 and 1929, the governments of the Republic,
beginning with Brüning’s, made continual use of Article 48, proclaiming a state of excep-
tion and issuing emergency decrees on more than two hundred and fifty occasions; among
other things, they employed it to imprison thousands of communist militants and to set
up special tribunals authorized to pronounce capital sentences. On several occasions,
particularly in October 1923, the government had recourse to Article 48 to cope with the
fall of the mark, thus confirming the modern tendency to conflate politico-military and
economic crises.
It is well known that the last years of the Weimar Republic passed entirely under a
regime of the state of exception; it is less obvious to note that Hitler could probably not have taken power had the country not been under a regime of presidential dictatorship for
nearly three years and had parliament been functioning. In July 1930, the Brüning govern-
ment was put in the minority, but Brüning did not resign. Instead, President Hindenburg
granted him recourse to Article 48 and dissolved the Reichstag. From that moment on,
Germany in fact ceased to be a parliamentary republic. Parliament met only seven times for no longer than twelve months in all, while a fluctuating coalition of Social Democrats and centrists stood by and watched a government that by then answered only to the president
STATE OF EXCEPTION
179
of the Reich. In 1932, Hindenburg—reelected president over Hitler and Thälmann—
forced Brüning to resign and named the centrist von Papen to his post. On June 4, the
Reichstag was dissolved and never reconvened until the advent of Nazism. On July 20,
a state of exception was proclaimed in the Prussian territory, and von Papen was named
Reich Commissioner for Prussia—ousting Otto Braun’s Social Democratic government.
The state of exception in which Germany found itself during the Hindenburg pres-
idency was justified by Schmitt on a constitutional level by the idea that the president
acted as the “guardian of the constitution” (Schmitt 1931); but the end of the Weimar
Republic clearly demonstrates that, on the contrary, a “protected democracy” is not a
democracy at all, and that the paradigm of constitutional dictatorship functions instead
as a transitional phase that leads inevitably to the establishment of a totalitarian regime.
Given these precedents, it is understandable that the constitution of the Federal Re-
public did not mention the state of exception. Nevertheless, on June 24, 1968, the “grand
coalition” of Christian Democrats and Social Democrats passed a law for the amendment
of the constitution ( Gesetz zur Ergänzung des Grundgesetzes) that reintroduced the state of exception (defined as the “state of internal necessity,” innere Notstand). However, with an unintended irony, for the first time in the history of the institution, the proclamation of the state of exception was provided for not simply to safeguard public order and security, but to defend the “liberal-democratic constitution.” By this point, protected democracy
had become the rule.
On August 3, 1914, the Swiss Federal Assembly granted the Federal Council “the unlimited
power to take all measures necessary to guarantee the security, integrity, and neutrality of Switzerland.” This unusual act—by virtue of which a non-warring state granted powers to
the executive that were even vaster and vaguer than those received by the governments of
countries directly involved in the war—is of interest because of the debates it provoked
both in the assembly itself and in the Swiss Federal Court when the citizens objected
that the act was unconstitutional. The tenacity with which on this occasion the Swiss
jurists (nearly thirty years ahead of the theorists of constitutional dictatorship) sought (like Waldkirch and Burckhardt) to derive the legitimacy of the state of exception from
the text of the constitution itself (specifically, Article 2, which read, “the aim of the Con-federation is to ensure the independence of the fatherland against the foreigner [and] to
maintain internal tranquility and order”), or (like Hoerni and Fleiner) to ground the state of exception in a law of necessity “inherent in the very existence of the State,” or (like His) in a juridical lacuna that the exceptional provisions must fill, shows that the theory of
the state of exception is by no means the exclusive legacy of the antidemocratic tradition.
In Italy the history and legal situation of the state of exception are of particular interest with regard to legislation by emergency executive [ governativi] decrees (the so-called law-decrees). Indeed, from this viewpoint one could say that Italy functioned as a true
and proper juridico-political laboratory for organizing the process (which was also occur-
ring to differing degrees in other European states) by which the law-decree “changed from
a derogatory and exceptional instrument for normative production to an ordinary source
180
HOMO SACER II, 1
for the production of law” (Fresa 1981, 156). But this also means that one of the essential paradigms through which democracy is transformed from parliamentary to executive
[ governamentale] was elaborated precisely by a state whose governments were often unstable. In any case, it is in this context that the emergency decree’s pertinence to the
problematic sphere of the state of exception comes clearly into view. The Albertine Statute (like the current Republican Constitution) made no mention of the state of exception.
Nevertheless, the governments of the kingdom resorted to proclaiming a state of siege
many times: in Palermo and the Sicilian provinces in 1862 and 1866, in Naples in 1862,
in Sicily and Lunigiana in 1894, and in Naples and Milan in 1898, where the repression of
the disturbances was particularly bloody and provoked bitter debates in parliament. The
declaration of a state of siege on the occasion of the earthquake of Messina and Reggio
Calabria on December 28, 1908, is only apparently a different situation. Not only was
the state of siege ultimately proclaimed for reasons of public order—that is, to suppress
the robberies and looting provoked by the disaster—but from a theoretical standpoint,
it is also significant that these acts furnished the occasion that allowed Santi Romano
and other Italian jurists to elaborate the thesis (which we examine in some detail later)
that necessity is the primary source of law.
In each of these cases, the state of siege was proclaimed by a royal decree that, while
not requiring parliamentary ratification, was nevertheless always approved by parliament,
as were other emergency decrees not related to the state of siege (in 1923 and 1924 several thousand outstanding law-decrees issued in the preceding years were thus converted into
law). In 1926 the Fascist regime had a law issued that expressly regulated the matter of
the law-decrees. Article 3 of this law established that, upon deliberation of the council
of ministers, “norms having force of law” could be issued by royal decree “(1) when the
government is delegated to do so by a law within the limits of the delegation, and (2) in
extraordinary situations, in which it is required for reasons of urgent and absolute ne-
cessity. The judgment concerning necessity and urgency is not subject to any oversight
other than parliament’s political oversight.” The decrees provided for in the second clause had to be presented to parliament for conversion into law; but parliament’s total loss of
autonomy during the Fascist regime rendered this condition superfluous.
Although the Fascist government’s abuse of emergency decrees was so great that in
1939 the regime itself felt it necessary to limit their reach, Article 77 of the Republican Constitution established with singular continuity that “in extraordinary situations of
necessity and emergency” the government could adopt “provisional measures having force
of law,” which had to be presented the same day to parliament and which went out of
effect if not converted into law within sixty days of their issuance.
It is well known that since then the practice of executive [ governamentale] legislation by law-decrees has become the rule in Italy. Not only have emergency decrees
been issued
in moments of political crisis, thus circumventing the constitutional principle that the
rights of the citizens can be limited only by law (see, for example, the decrees issued for the repression of terrorism: the law-decree of March 28, 1978, n. 59, converted into the law of May 21, 1978, n. 191 [the so-called Moro Law], and the law-decree of December 15, 1979,
STATE OF EXCEPTION
181
n. 625, converted into the law of February 6, 1980, n. 15), but law-decrees now constitute the normal form of legislation to such a degree that they have been described as “bills
strengthened by guaranteed emergency” (Fresa 1981, 152). This means that the democratic
principle of the separation of powers has today collapsed and that the executive power
has in fact, at least partially, absorbed the legislative power. Parliament is no longer the sovereign legislative body that holds the exclusive power to bind the citizens by means of the law: it is limited to ratifying the decrees issued by the executive power. In a technical sense, the Italian Republic is no longer parliamentary, but executive [ governamentale].
And it is significant that though this transformation of the constitutional order (which
is today underway to varying degrees in all the Western democracies) is perfectly well
known to jurists and politicians, it has remained entirely unnoticed by the citizens. At the very moment when it would like to give lessons in democracy to different traditions and
cultures, the political culture of the West does not realize that it has entirely lost its canon.
The only legal apparatus in England that is comparable to the French état de siège goes by the term martial law; but this concept is so vague that it has been rightly described as an
“unlucky name for the justification by the common law of acts done by necessity for the
defence of the Commonwealth when there is war within the realm” (Rossiter 1948, 142).
This, however, does not mean that something like a state of exception could not exist.
In the Mutiny Acts, the Crown’s power to declare martial law was generally confined to
times of war; nevertheless, it necessarily entailed sometimes serious consequences for the civilians who found themselves factually involved in the armed repression. Thus Schmitt
The Omnibus Homo Sacer Page 27
