What follows is another piece by Giordio Agamben in these times of the coronavirus.
In an article that has just been published in a pro-government newspaper, a lawyer, for whom I once had some respect, tries to justify the state of emergency that the government has recently declared with arguments that would like to be legal.
The legal expert, without admitting it, takes up the Schmitt distinction between a provisional dictatorship aimed at preserving or restoring the current constitution and a sovereign dictatorship aimed at establishing a new order, and distinguishes between exception and emergency (or, to be more precise between state of exception and state of emergency).
In fact, the argument has no legal basis, since no constitution can foresee a legitimate overthrow. This is why Schmitt, in his essay on political theory, which contains the famous definition of the sovereign as the one “who decides on the state of exception”, speaks simply of “Ausnahmezusatnd”, the “state of exception” (i.O. in German), which has become established in German doctrine and outside Germany as a technical term to define this no-man’s-land between the legal system and the political reality and between law and its repeal.
In reassessing the first Schmitt distinction, the lawyer confirms that the state of emergency is conservative, while the state of exception is considered to be renewing. “The state of emergency is used to return to normality as quickly as possible, while the state of exception is used to break the rules and impose a new order. The state of emergency ” requires the stability of a system”, “the state of exception, on the contrary, requires its disintegration, which opens the way to another system”.
The distinction is apparently political and sociological in nature and relates to a personal assessment of the state of the system in question, its stability or disintegration and the intentions of those who have the power to order the annulment of the legal order, which are essentially identical from a legal point of view, since in both cases it is regulated by the mere suspension of constitutional guarantees. Whatever its purpose, which no one can claim to be able to judge with certainty, there is only one state of emergency and, once declared, there is no authority with the power to verify the reality or the seriousness of the conditions that have determined it. It is no coincidence that at a certain point the lawyer has to write: “That we are now facing a state of health emergency seems to me beyond doubt”. A subjective judgement, strangely enough, made by someone who cannot claim medical authority and who is able to stand up to others who certainly have more authoritative authority, all the more so because he admits that “disharmonious voices are coming from the scientific community” and that it is therefore ultimately the one who has the power to order the state of emergency. The state of exception, he continues, unlike the state of emergency, which includes unspecified powers, “contains only powers aimed at the predetermined purpose of returning to normality”, and yet, he continues, such powers “cannot be predetermined”. It does not take a great deal of legal competence to realize that there is no difference between the two in terms of the suspension of constitutional guarantees, which should be the only relevant one.
The jurist’s argumentation is doubly tricky, because he not only introduces a distinction as legal, which it is not, but in order to justify the state of emergency ordered by the government at all costs, he is forced to resort to factual and questionable arguments that are outside his competence. And this is all the more surprising because he should know that, in a framework which for him is only an emergency, constitutional rights and guarantees which have never been called into question, not even during the two world wars and fascism, have been suspended and violated; and that this is not a temporary situation is strongly reaffirmed by the authorities themselves, who never get tired of repeating that not only the virus has not disappeared, but that it can reappear at any time.
Perhaps it is due to a remnant of intellectual honesty that the lawyer mentions at the end of the article the opinion of those who “do not claim without good arguments that, apart from the virus, the whole world is more or less permanently living in a state of emergency” and that “the economic-social system of capitalism” is not able to face its crises with the apparatus of the rule of law. In this perspective, he admits that “the pandemic contagion of the virus, which keeps whole societies in its grip, is a coincidence and an unforeseen opportunity that must be used to keep the subjugated people under control”. We should ask him to think more carefully about the state of the society he lives in and to remember that lawyers should not really be just (as they have unfortunately been for some time) bureaucrats who only have to justify the system they live in.
Giorgio Agamben, July 30, 2020.
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