sought to distinguish martial law from the military tribunals and summary proceedings
that at first applied only to soldiers, in order to conceive of it as a purely factual proceeding and draw it closer to the state of exception: “Despite the name it bears, martial law is neither a right nor a law in this sense, but rather a proceeding guided essentially by the necessity of achieving a certain end” (Schmitt 1921, 172).
World War One played a decisive role in the generalization of exceptional execu-
tive [ governamentali] apparatuses in England as well. Indeed, immediately after war was declared, the government asked parliament to approve a series of emergency measures
that had been prepared by the relevant ministers, and they were passed virtually without
discussion. The most important of these acts was the Defence of the Realm Act of August
4, 1914, known as DORA, which not only granted the government quite vast powers to
regulate the wartime economy, but also provided for serious limitations on the funda-
mental rights of the citizens (in particular, granting military tribunals jurisdiction over civilians). The activity of parliament saw a significant eclipse for the entire duration of the war, just as in France. And in England too this process went beyond the emergency
of the war, as is shown by the approval—on October 29, 1920, in a time of strikes and
social tensions—of the Emergency Powers Act. Indeed, Article 1 of the act stated that
[i]f at any time it appears to His Majesty that any action has been taken or is
immediately threatened by any persons or body of persons of such a nature and on
so extensive a scale as to be calculated, by interfering with the supply and distri-
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bution of food, water, fuel, or light, or with the means of locomotion, to deprive
the community, or any substantial portion of the community, of the essentials of
life, His Majesty may, by proclamation (hereinafter referred to as a proclamation
of emergency), declare that a state of emergency exists.
Article 2 of the law gave His Majesty in Council the power to issue regulations and
to grant the executive the “powers and duties . . . necessary for the preservation of the
peace,” and it introduced special courts (“courts of summary jurisdiction”) for offenders.
Even though the penalties imposed by these courts could not exceed three months in jail
(“with or without hard labor”), the principle of the state of exception had been firmly
introduced into English law.
The place—both logical and pragmatic—of a theory of the state of exception in the
American constitution is in the dialectic between the powers of the president and those
of Congress. This dialectic has taken shape historically (and in an exemplary way already
beginning with the Civil War) as a conflict over supreme authority in an emergency
situation; or, in Schmittian terms (and this is surely significant in a country considered to be the cradle of democracy), as a conflict over sovereign decision.
The textual basis of the conflict lies first of all in Article 1 of the constitution, which establishes that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it” but does
not specify which authority has the jurisdiction to decide on the suspension (even though
prevailing opinion and the context of the passage itself lead one to assume that the clause is directed at Congress and not the president). The second point of conflict lies in the
relation between another passage of Article 1 (which declares that the power to declare
war and to raise and support the army and navy rests with Congress) and Article 2, which
states that “[t]he President shall be Commander in Chief of the Army and Navy of the
United States.”
Both of these problems reach their critical threshold with the Civil War (1861–1865).
Acting counter to the text of Article 1, on April 15, 1861, Lincoln decreed that an army of seventy-five thousand men was to be raised and convened a special session of Congress
for July 4. In the ten weeks that passed between April 15 and July 4, Lincoln in fact acted as an absolute dictator (for this reason, in his book Dictatorship, Schmitt can refer to it as a perfect example of commissarial dictatorship: see 1921, 136). On April 27, with a technically even more significant decision, he authorized the General in Chief of the Army to
suspend the writ of habeas corpus whenever he deemed it necessary along military lines
between Washington and Philadelphia, where there had been disturbances. Furthermore,
the president’s autonomy in deciding on extraordinary measures continued even after
Congress was convened (thus, on February 14, 1862, Lincoln imposed censorship of the
mail and authorized the arrest and detention in military prisons of persons suspected of
“disloyal and treasonable practices”).
In the speech he delivered to Congress when it was finally convened on July 4,
the president openly justified his actions as the holder of a supreme power to violate
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the constitution in a situation of necessity. “Whether strictly legal or not,” he de-
clared, the measures he had adopted had been taken “under what appeared to be a
popular demand and a public necessity” in the certainty that Congress would ratify
them. They were based on the conviction that even fundamental law could be violated
if the very existence of the union and the juridical order were at stake (“Are all the
laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?” See Rossiter 1948, 229).
It is obvious that in a wartime situation the conflict between the president and
Congress is essentially theoretical. The fact is that although Congress was perfectly aware that the constitutional jurisdictions had been transgressed, it could do nothing but ratify the actions of the president, as it did on August 6, 1861. Strengthened by this approval,
on September 22, 1862, the president proclaimed the emancipation of the slaves on his
authority alone and, two days later, generalized the state of exception throughout the
entire territory of the United States, authorizing the arrest and trial before courts martial of “all Rebels and Insurgents, their aiders and abettors within the United States, and
all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of the United States.” By this point, the president of the United States was the holder of the sovereign decision on the state of exception.
According to American historians, during World War One President Woodrow Wil-
son personally assumed even broader powers than those Abraham Lincoln had claimed.
It is, however, necessary to specify that instead of ignoring Congress, as Lincoln had
done, Wilson preferred each time to have the powers in question delegated to him by
Congress. In this regard, his practice of government is closer to the one that would pre-
vail in Europe in the same years, or to the current one, which instead of declaring the
state of exception prefers to have exceptional laws issued. In any case, from 1917 to 1918, Congress approved a series of acts (from the Espionage Act of June 1917 to the Overman
Act of May 1918) that granted the president complete control over the administration of
the country and not only prohibited disloyal activities (such as collaboration with the
enemy and the dif
fusion of false reports), but even made it a crime to “willfully utter,
print, write, or publish any disloyal, profane, scurrilous, or abusive language about the
form of government of the United States.”
Because the sovereign power of the president is essentially grounded in the emergency
linked to a state of war, over the course of the twentieth century the metaphor of war
becomes an integral part of the presidential political vocabulary whenever decisions con-
sidered to be of vital importance are being imposed. Thus, in 1933, Franklin D. Roosevelt
was able to assume extraordinary powers to cope with the Great Depression by presenting
his actions as those of a commander during a military campaign:
I assume unhesitatingly the leadership of this great army of our people dedicated
to a disciplined attack upon our common problems. . . . I am prepared under
my constitutional duty to recommend the measures that a stricken Nation in
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the midst of a stricken world may require. . . . But in the event that the Con-
gress shall fail to take [the necessary measures] and in the event that the national
emergency is still critical, I shall not evade the clear course of duty that will then
confront me. 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. (Roosevelt 1938, 14–15)
It is well not to forget that, from the constitutional standpoint, the New Deal was
realized by delegating to the president (through a series of statutes culminating in the
National Recovery Act of June 16, 1933) an unlimited power to regulate and control every
aspect of the economic life of the country—a fact that is in perfect conformity with the
already mentioned parallelism between military and economic emergencies that charac-
terizes the politics of the twentieth century.
The outbreak of World War Two extended these powers with the proclamation of a
“limited” national emergency on September 8, 1939, which became unlimited on May 27,
1941. On September 7, 1942, while requesting that Congress repeal a law concerning
economic matters, the president renewed his claim to sovereign powers during the emer-
gency: “In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act. . . . The American people can . . . be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any
part of the world where our own safety demands such defeat” (Rossiter 1948, 268–69). The
most spectacular violation of civil rights (all the more serious because of its solely racial motivation) occurred on February 19, 1942, with the internment of seventy thousand
American citizens of Japanese descent who resided on the West Coast (along with forty
thousand Japanese citizens who lived and worked there).
President Bush’s decision to refer to himself constantly as the “Commander in Chief
of the Army” after September 11, 2001, must be considered in the context of this presiden-
tial claim to sovereign powers in emergency situations. If, as we have seen, the assumption of this title entails a direct reference to the state of exception, then Bush is attempting to produce a situation in which the emergency becomes the rule, and the very distinction
between peace and war (and between foreign and civil war) becomes impossible.
1.8. The differences in the legal traditions correspond in scholarship to the
division between those who seek to include the state of exception within
the sphere of the juridical order and those who consider it something exter-
nal, that is, an essentially political, or in any case extrajuridical, phenomenon.
Among the former, some (such as Santi Romano, Hauriou, and Mortati) un-
derstand the state of exception to be an integral part of positive law because the
necessity that grounds it acts as an autonomous source of law, while others (such
as Hoerni, Ranelletti, and Rossiter) conceive of it as the state’s subjective (natural
or constitutional) right to its own preservation. Those in the latter group (such
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185
as Biscaretti, Balladore-Pallieri, and Carré de Malberg) instead consider the state
of exception and the necessity that grounds it to be essentially extrajuridical, de
facto elements, even though they may have consequences in the sphere of law.
Julius Hatschek has summarized the various positions in the contrast between
an objektive Notstandstheorie, according to which every act performed outside of or in conflict with the law in a state of necessity is contrary to law and, as such,
is legally chargeable; and a subjektive Notstandstheorie, according to which emergency [ eccezionali] powers are grounded in “a constitutional or preconstitutional
(natural) right” of the state (Hatschek 1923, 158ff.), regarding which good faith is
enough to guarantee immunity.
The simple topographical opposition (inside/outside) implicit in these the-
ories seems insufficient to account for the phenomenon that it should explain.
If the state of exception’s characteristic property is a (total or partial) suspension
of the juridical order, how can such a suspension still be contained within it?
How can an anomie be inscribed within the juridical order? And if the state of
exception is instead only a de facto situation, and is as such unrelated or contrary
to law, how is it possible for the order to contain a lacuna precisely where the
decisive situation is concerned? And what is the meaning of this lacuna?
In truth, the state of exception is neither external nor internal to the juridical
order, and the problem of defining it concerns precisely a threshold, or a zone
of indifference, where inside and outside do not exclude each other but rather
blur with each other. The suspension of the norm does not mean its abolition,
and the zone of anomie that it establishes is not (or at least claims not to be)
unrelated to the juridical order. Hence the interest of those theories that, like
Schmitt’s, complicate the topographical opposition into a more complex topo-
logical relation, in which the very limit of the juridical order is at issue. In any
case, to understand the problem of the state of exception, one must first correctly
determine its localization (or illocalization). As we will see, the conflict over the
state of exception presents itself essentially as a dispute over its proper locus.
1.9. A recurrent opinion posits the concept of necessity as the foundation
of the state of exception. According to a tenaciously repeated Latin adage (a
history of the adagia’s strategic function in legal literature has yet to be written), necessitas legem non habet, “necessity has no law,” which is interpreted in two opposing ways: “necessity does not recognize any law” and “necessity creates its
own law” ( nécessité fait loi). In both cases, the theory of the state of exception is wholly reduced to the theory of the status necessitatis, so that a judgment concerning the existence of the latter resolves the question concerning the legitimacy
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of the former. Therefore, any discussion of the structure and meaning of the state
of exception first requ
ires an analysis of the legal concept of necessity.
The principle according to which necessitas legem non habet was formulated
in Gratian’s Decretum. It appears there two times: first in the gloss and then in the text. The gloss (which refers to a passage in which Gratian limits himself to
stating generically that “many things are done against the rule out of necessity
or for whatever other cause” [ pars I. dist. 48]) appears to attribute to necessity the power to render the illicit licit ( Si propter necessitatem aliquid fit, illud licite fit: quia quod non est licitum in lege, necessitas facit licitum. Item necessitas legem non habet [If something is done out of necessity, it is done licitly, since what is not licit in law necessity makes licit. Likewise necessity has no law]). But the
sense in which this should be taken is made clearer by a later passage in Gratian’s
text concerning the celebration of the mass ( pars III. dist. 1. c. 11). After having stated that the sacrifice must be offered on the altar or in a consecrated place,
Gratian adds, “It is preferable not to sing or listen to the mass than to celebrate
it in places where it should not be celebrated, unless it happens because of a
supreme necessity, for necessity has no law” ( nisi pro summa necessitate contin-
gat, quoniam necessitas legem non habet). More than rendering the illicit licit,
necessity acts here to justify a single, specific case of transgression by means of
an exception.
This is clear in the way Thomas in the Summa theologica develops and com-
ments on this principle precisely in relation to the sovereign’s power to grant
dispensations from the law ( Prima secundae, q. 96, art. 6: utrum ei qui subditur
legi, liceat praeter verba legis agere [whether one who is subject to law may act
against the letter of the law]):
If observing the letter of the law does not entail an immediate danger that must
be dealt with at once, it is not in the power of any man to interpret what is of
use or of harm to the city; this can be done only by the sovereign who, in a case
of this sort, has the authority to grant dispensations from the law. If there is,
however, a sudden danger, regarding which there is no time for recourse to a
higher authority, the very necessity carries a dispensation with it, for necessity is
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