exception.
First a few remarks concerning terminology. In the book from 1921 the state
of exception is presented through the figure of dictatorship. Dictatorship, how-
ever, which encompasses the state of siege, is essentially a “state of exception,”
and insofar as it presents itself as a “suspension of law,” it comes down to the
problem of defining a “concrete exception, . . . a problem that up to now has not
been held in due consideration by the general theory of law” (Schmitt 1921, xvii).
Having thus inscribed the state of exception within the context of dictatorship,
Schmitt then distinguishes between “commissarial dictatorship,” which has the
aim of defending or restoring the existing constitution, and “sovereign dictator-
ship,” in which, as a figure of the exception, dictatorship reaches its, so to speak,
critical mass or melting point. The terms dictatorship and state of siege can thus disappear in Political Theology, with the state of exception ( Ausnahmezustand ) taking their place, while the emphasis shifts, at least apparently, from a definition of the exception to a definition of sovereignty. The strategy of Schmitt’s
theory is therefore a two-stage strategy, whose articulations and aims we will
have to understand clearly.
In both books, the telos of the theory is the inscription of the state of ex-
ception within a juridical context. Schmitt knows perfectly well that because it
brings about a “suspension of the entire existing juridical order” (Schmitt 1922,
13/12), the state of exception seems to “subtract itself from any consideration
of law” (Schmitt 1921, 137) and that indeed “in its factual substance, that is, in
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its core, it cannot take a juridical form” (175). Nevertheless, it is essential for
Schmitt that in every case some relation to the juridical order be ensured: “Both
commissarial dictatorship and sovereign dictatorship entail a relation to a jurid-
ical context” (139); “Because the state of exception is always something different
from anarchy and chaos, in a juridical sense, an order still exists in it, even if it is
not a juridical order” (Schmitt 1922, 13/12).
The specific contribution of Schmitt’s theory is precisely to have made such
an articulation between state of exception and juridical order possible. It is a
paradoxical articulation, for what must be inscribed within the law is something
that is essentially exterior to it, that is, nothing less than the suspension of the
juridical order itself (hence the aporetical formulation: “In a juridical sense, an
order still exists, . . . even if it is not a juridical order”).
In Dictatorship, the operator of this inscription of an outside of the law within the law is, in the case of commissarial dictatorship, the distinction between norms of law and norms of the realization of law ( Rechtsverwirklichung)
and, in the case of sovereign dictatorship, the distinction between constituent
power and constituted power. Indeed, because it “suspends the constitution in
concreto in order to protect its concrete existence” (Schmitt 1921, 136), commis-
sarial dictatorship ultimately has the function of creating a state of affairs “in
which the law can be realized” (137). In commissarial dictatorship, the consti-
tution can be suspended in its application “without thereby ceasing to remain
in force, because the suspension signifies solely a concrete exception” (137). On
a theoretical level, commissarial dictatorship can thus be wholly subsumed in
the distinction between the norm and the techno-practical rules that govern
its realization.
The situation is different in sovereign dictatorship, which is not limited to
suspending an existing constitution “on the basis of a right that is provided for
therein and is therefore itself constitutional” (Schmitt 1921, 137). Rather, it aims
at creating a state of affairs in which it becomes possible to impose a new consti-
tution. In this case, the operator that allows the state of exception to be anchored
to the juridical order is the distinction between constituent power and consti-
tuted power. Constituent power is not, however, “a simple question of force”; it
is, rather, “a power that, though it is not constituted in virtue of a constitution,
is nevertheless connected to every existing constitution in such a way that it ap-
pears as the founding power, . . . and for this reason it cannot be negated even if
the existing constitution might negate it” (137). Though it is juridically formless
( formlos), it represents a “minimum of constitution” (145) inscribed within every politically decisive action and is therefore capable of ensuring the relation be-
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tween the state of exception and the juridical order even in the case of sovereign
dictatorship.
This clarifies why in the preface Schmitt can present the “essential distinc-
tion between commissarial dictatorship and sovereign dictatorship” as the “chief
outcome of the book,” which makes the concept of dictatorship “finally ac-
cessible to jurisprudential consideration” (Schmitt 1921, xviii). Indeed, what
Schmitt had before his eyes was a “confusion” and “combination” between the
two dictatorships that he never tired of denouncing (203). Yet neither the Le-
ninist theory and practice of the dictatorship of the proletariat nor the gradual
exacerbation of the use of the state of exception in the Weimar Republic was a
figure of the old commissarial dictatorship; they were, rather, something new
and more extreme, which threatened to put into question the very consistency of
the juridico- political order, and whose relation to the law is exactly what Schmitt
sought to preserve at all costs.
In Political Theology, on the other hand, the operator of the inscription of the state of exception within the juridical order is the distinction (which had already
been proposed in the 1912 book Gesetz und Urteil ) between two fundamental
elements of law: norm ( Norm) and decision ( Entscheidung, Dezision). In suspending the norm, the state of exception “reveals [ offenbart], in absolute purity, a specifically juridical formal element: the decision” (Schmitt 1922, 13/13). The two
elements, norm and decision, thus show their autonomy. “Just as in the normal
situation the autonomous moment of decision is reduced to a minimum, so in
the exceptional situation the norm is annulled [ vernichtet]. And yet even the
exceptional situation remains accessible to juridical knowledge, because both
elements, the norm as well as the decision, remain within the framework of the
juridical [ im Rahmen des Juristischen]” (13/12–13).
At this point we can understand why the theory of the state of exception
can be presented in Political Theology as a theory of sovereignty. The sovereign, who can decide on the state of exception, guarantees its anchorage to the juridical order. But precisely because the decision here concerns the very annul-
ment of the norm, that is, because the state of exception represents the inclusion
and capture of a space that is neither outside nor inside (the space that cor-
responds to the annulled and suspended norm), “the sovereign stands outside
[ steht außerhalb] of the normally valid juridic
al order, and yet belongs [ gehört]
to it, for it is he who is responsible for deciding whether the constitution can be
suspended in toto” (10/7).
Being-outside, and yet belonging: this is the topological structure of the state
of exception, and only because the sovereign, who decides on the exception, is,
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in truth, logically defined in his being by the exception, can he too be defined by
the oxymoron ecstasy-belonging.
א The relationship between Dictatorship and Political Theology must be seen in the light of this complex strategy of inscribing the state of exception within the law. Jurists and political philosophers have generally directed their attention chiefly to the theory of sovereignty contained in the book from 1922, without realizing that this theory acquires
its sense solely on the basis of the theory of the state of exception already elaborated in Dictatorship. The rank and the paradox of Schmitt’s concept of sovereignty derive, as we have seen, from the state of exception, and not vice versa. And it is certainly not by
chance that Schmitt had, in the 1921 book and in previous articles, first laid out the theory and praxis of the state of exception, and only later laid out his theory of sovereignty in Political Theology. There is no doubt that his theory of sovereignty represents an attempt to anchor the state of exception unequivocally to the juridical order, but the attempt
would not have been possible if the state of exception had not first been articulated within the terms and concepts of dictatorship and, so to speak, “juridicized” through reference
to the Roman magistracy and then through the distinction between norms of law and
norms of realization.
2.2. Schmitt’s theory of the state of exception proceeds by establishing within
the body of the law a series of caesurae and divisions whose ends do not quite
meet, but which, by means of their articulation and opposition, allow the ma-
chine of law to function.
Take on the one hand the opposition between norms of law and norms of the
realization of law, between the norm and its concrete application. Commissarial
dictatorship shows that the moment of application is autonomous with respect
to the norm as such, and that the norm “can be suspended, without thereby
ceasing to remain in force” (Schmitt 1921, 137). That is, commissarial dictatorship
represents a state of the law in which the law is not applied, but remains in force.
Instead, sovereign dictatorship (in which the old constitution no longer exists
and the new one is present in the “minimal” form of constituent power) rep-
resents a state of the law in which the law is applied, but is not formally in force.
Take now the opposition between norm and decision. Schmitt shows that
they are irreducible, in the sense that the decision can never be derived from the
content of a norm without a remainder ( restlos) (Schmitt 1922, 9/6). In the deci-
sion on the state of exception, the norm is suspended or even annulled; but what
is at issue in this suspension is, once again, the creation of a situation that makes
the application of the norm possible (“a situation in which juridical norms can
be valid [ gelten] must be brought about” (13/13). That is, the state of exception
separates the norm from its application in order to make its application possible.
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It introduces a zone of anomie into the law in order to make the effective regu-
lation [ normazione] of the real possible.
We can, then, define the state of exception in Schmitt’s theory as the place
where the opposition between the norm and its realization reaches its greatest
intensity. It is a field of juridical tensions in which a minimum of formal being-
in-force [ vigenza] coincides with a maximum of real application, and vice versa.
But even in this extreme zone—and, indeed, precisely by virtue of it—the two
elements of the law show their intimate cohesion.
א The structural analogy between language and law is illuminating here. Just as
linguistic elements subsist in langue without any real denotation, which they acquire only in actual discourse, so in the state of exception the norm is in force without any
reference to reality. But just as concrete linguistic activity becomes intelligible precisely through the presupposition of something like a language, so is the norm able to refer to
the normal situation through the suspension of its application in the state of exception.
It can generally be said that not only language and law but all social institutions have
been formed through a process of desemanticization and suspension of concrete praxis in
its immediate reference to the real. Just as grammar, in producing a speech without deno-
tation, has isolated something like a language from discourse, and law, in suspending the
concrete custom and usage of individuals, has been able to isolate something like a norm,
so the patient work of civilization proceeds in every domain by separating human praxis
from its concrete exercise and thereby creating that excess of signification over denota-
tion that Lévi-Strauss was the first to recognize. In this sense, the floating signifier—this guiding concept in the human sciences of the twentieth century—corresponds to the
state of exception, in which the norm is in force without being applied.
2.3. In 1989, at the Cardozo School of Law in New York, Jacques Derrida
gave a lecture titled “Force de loi: le ‘fondement mystique de l’autorité.’” The
lecture, which in truth was a reading of Benjamin’s essay “Critique of Violence,”
gave rise to a wide debate among philosophers as well as jurists, but the fact that
no one attempted to analyze the seemingly enigmatic formula that gave the text
its title is an indication not only of the complete separation between philosoph-
ical and legal cultures, but also of the latter’s decline.
Behind the syntagma force of law stands a long tradition in Roman and me-
dieval law, where (at least beginning with Justinian’s Digests, De legibus, 1.7: legis virtus haec est: imperare, vetare, permittere, punire [The capacity of law is this: to command, to forbid, to allow, to punish]) it has the generic sense of efficacy, the capacity to bind. But only in the modern epoch, in the context of the
French Revolution, does it begin to indicate the supreme value of those state
acts declared by the representative assemblies of the people. Thus, in Article 6
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of the constitution of 1791, force de loi designates the untouchability of the law, which even the sovereign himself can neither abrogate nor modify. In this regard, modern doctrine distinguishes between the efficacy of the law—which rests
absolutely with every valid legislative act and consists in the production of legal
effects—and the force of law, which is instead a relative concept that expresses the position of the law or of acts comparable to it with respect to other acts of
the juridical order that are endowed with a force superior to the law (as in the
case of the constitution) or inferior to it (such as the decrees and regulations
issued by the executive) (Quadri 1979, 10).
The decisive point, however, is that in both modern and ancient doctrine
the syntagma force of law refers in the technical sense not to the law but to
those decrees (which, as we indeed say, have the force of law) that the executive
power can b
e authorized to issue in some situations, particularly in the state of
exception. That is to say, the concept of “force of law,” as a technical legal term,
defines a separation of the norm’s vis obligandi, or applicability, from its formal essence, whereby decrees, provisions, and measures that are not formally laws
nevertheless acquire their “force.” Thus, when the Roman sovereign begins to
acquire the power to issue acts that tend increasingly to have the value of laws,
Roman doctrine says that these acts have the “force of law” (Ulpian, in Digests,
1.4.1: quod principi placuit legis habet vigorem [because it pleased the sovereign, it has the force of law]; using equivalent expressions, though ones that underscore
the formal distinction between the laws and the constitution of the sovereign,
Gaius writes legis vicem obtineat [let it take the place of law], and Pomponius
writes pro lege servetur [let it serve for law]).
In our discussion of the state of exception, we have encountered numerous
examples of this confusion between acts of the executive power and acts of
the legislative power; indeed, as we have seen, such a confusion defines one
of the essential characteristics of the state of exception. (The limit case is the
Nazi regime, in which, as Eichmann never tired of repeating, “the words of the
Führer have the force of law [ Gesetzeskraft]).” But from a technical standpoint
the specific contribution of the state of exception is less the confusion of powers,
which has been all too strongly insisted upon, than it is the separation of “force
of law” from the law. It defines a “state of the law” in which, on the one hand,
the norm is in force [ vige] but is not applied (it has no “force” [ forza]) and, on the other, acts that do not have the value [ valore] of law acquire its “force.” That is to say, in extreme situations “force of law” floats as an indeterminate element
that can be claimed both by the state authority (which acts as a commissarial
dictatorship) and by a revolutionary organization (which acts as a sovereign dic-
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tatorship). The state of exception is an anomic space in which what is at stake
is a force of law without law (which should therefore be written: force-of-law).
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