By Jorge Varela
Since 1945 the explicit use of the ‘state of exception’ in Western democracies has fallen out of use. This results from a generalized perception that the ‘state of exception’ paved the way for the rise of totalitarianism in interwar Europe. During those years, the suspension of some or all fundamental legal guarantees and the attribution of extraordinary power to an executive became characteristic of all regimes, totalitarian or democratic alike. However, since the beginning of 2020, it became explicit that the taboo on the use of the state of exception has been lifted. In this essay, I analyze the historical and theoretical structure of the ‘state of exception’ in order to explore the implications of its return at this specific historical juncture. I argue that there are specific temporal presuppositions that guide the understanding of the ‘state of exception’.
My argument will be developed in four moments: firstly, I will outline the positivistic approach to the ‘state of exception’ and claim that its logic presupposes the removal of exceptional time from its conception of legality; secondly, I will present a few suggestions from the interwar period about a broader meaning of the ‘state of exception’; thirdly, I will return to the Roman tradition to argue that the original ideology of the ‘state of exception’ was to bring human existence into harmony with cosmological time; finally, I will appeal to the Portuguese regulation of the ‘state of exception’ to face the SARS-CoV-2 pandemic in order to show that the concept needs to be understood through its temporal consequences.
Ever since World War II, Western democracies have tended to include in their constitutions legal constraints to using the ‘state of exception’, and to define the ‘state of exception’ fully within this formalistic conception. According to Ferejohn and Pasquino, legality is not exactly excluded and suspended once the ‘state of exception’ is put into force. The guiding supposition of this argument is that “it is aimed at resolving the threat to the system in such a way that the legal/constitutional system is restored to its previous state” (p. 210). The return to the previous state is taken by most theorists as the presupposed goal of every ‘state of exception’ and the temporary nature of the exception is only intended at re-establishing it.
The return to such a situation is attainable only through the appeal to exceptional laws that suspend the functioning of specific legal guarantees. This infringement is perceived as not impinging upon the legal guarantees due to a set of limitations and presuppositions that determine the ‘state of exception’. There are two main implications of this conception: 1) the ‘state of exception’ has a specific and delimited temporal existence; 2) when the ‘state of exception’ retreats it is as if it had not been in place. The previous temporal continuum is merely considered to be re-established rather than changed by the temporal lapse of the ‘state of exception’.
The temporal presuppositions of the ‘state of exception’ do not stand on their own feet; they require a specific legal framework. This is best understood in light of the works of the Austrian jurist and legal philosopher Hans Kelsen. Kelsen was both a key figure in the disputes within Weimar Germany on the defence of the constitutional order and significant for postwar philosophy of law. In “The Judgement of the Staatsgerichtshof of 25 October 1932” Kelsen’s criterion for positing the return to normality after the declaration of the ‘state of exception’ was the fulfilment of all legal formalities during the declaration of the state of exception. But, according to his Pure Theory of Law, the compliance with the legal criterion was not only a technical requirement, but it also presupposed the fidelity of the entire juridical order to a presupposed ‘Basic Norm’ (Grundnorm).
Therefore, it is the permanent implicit reference to this Grundnorm by all legal acts that granted the grounds for a return to normality after the ‘state of exception’ was rescinded. This means that the temporal continuity of the legal order is to be understood through the continuation of this Grundnorm that remains an implicit norm sustaining the entire legal order, including the constitution. The consistency of this legal understanding thus lies outside of its created laws, as the Grundnorm “must be presupposed, because it cannot be ‘posited’” (pp. 194-5). Hence, this norm works in the mode of the Kantian “As if” that assures the circularity of the system by an element that cannot be brought into firm ground (see Kojève). In this way, a temporal continuum is created between the times that precede and succeed the ‘state of exception’ by the removal of the exceptional times from the normal temporal continuum. This means that the ‘state of exception; is understood as a lapse of time that is fully unproductive.
Kelsen’s contemporary Carl Schmitt offers an alternative view that best expresses the implications of the exception. The opening of his 1922 Political Theology is quite explicit: “Sovereign is he who decides on the exception” (p. 5). In this instance it is not so much the exception, but the determination of sovereignty that is at stake by the recourse to the exception. This determination of the exception is less a legalistic requirement than a political reality through which the grounds of sovereignty are determined. Hence, it is not based on a predetermined essence, namely the legalistic Grundnorm, but it is the exact moment of determination of the substance of sovereignty. It is the centrality of the political in determining sovereignty that is of foremost relevance to understand Schmitt’s theory of the ‘state of exception’. According to Schmitt’s The Concept of the Political, “the political can derive its energy from the most varied human endeavors” (p. 38), the ‘state of exception’ becoming able to express an equivalent multiplicity.
If for Schmitt the exception is a moment determining the political, it certainly does not have the conservative character that is attributed to it by positivist legal theorists. The exception is not merely an extraordinary moment of politics with no grasp on the normal, it is the very moment of constitution of normality. So, when the exception recedes its offices and institutions are not done away with but become an integral and constitutive part of the succeeding normality. The full implications of the ‘state of exception’ in Schmitt’s theory can probably only be grasped through one of his most infamous books. In 1933, in State, Movement, People, Schmitt stated that the decrees regulating the ‘state of exception’ that had been granted to the Nazi government had to be understood as a de facto new constitution. This turned the state of exception into a de facto permanent new order.
As for Schmitt the exception expresses de facto rule, a quite radical potential of exceptional powers is recognized. Not as much, or not only the power to maintain a preceding order but to radically establish a new one. To better understand the disagreement between the positivistic and Schmitt’s view of the exception it is productive to follow Giorgio Agamben’s State of Exception. Agamben appeals to Roman dictatorship to reveal how the concept draws on auctoritas (authority) to establish a space of ‘anomy of law’ through a declaration of the iustitium (the suspension of normal legal affairs). But we need to go beyond Agamben to better grasp the exact meaning of his identification of auctoritas as the foundation for Roman dictatorship and its connection to the iustitium. The origin of the concept auctoritas in augeo – which has been proposed by authors such as Émile Benveniste – best expresses the ideological stakes of this process by referring to a type of authority that accounts for a perception of humanity as being involved inside an acting Cosmos. In this sense, Augeo ought not to be understood merely as any augmentation or growth, but it reflects a specific rationality that intrudes into the political logic of auctoritas. Auctoritas in augeo refers, thus, to a particular type of authority that hints to cosmological understandings of power.
To start with, auctoritas is generally recognized as firmly standing within the Indo-European sacerdotal function which, according to Benveniste’s Le vocabulaire des Institutions Indo-Européennes, Vol 1, “determines the hierarchy of powers” (p. 194) by deciding between the proper distribution of powers between the three functions: the sacerdotal, the military, and the productive. In Auctoritas the sacerdotal function is particularly expressed in its relation to a floral language that is transferred to the political realm. Benveniste explains this transference, in Vol. 2 of his major contribution to Indo-European thought, as “augeo does not indicate the event of increasing that which exists, but the act of producing from within itself [son propre sein]; a creative act which makes something arise from a nourishing medium” (p. 149). The “nourishing medium” characteristic of augeo reveals the intrusion of a divine dimension into the human world through which historical time is suspended and brought back into harmony with the cosmological order. The suspension of legal business associated with Roman iustitium is not aimed at the re-establishment of a failing temporal order, but to increase it according to a temporal order that escapes human creation. Modern authority retained much of this logic while anthropologizing this temporal dimension.
The Portuguese legislation that was passed to cope with the spread of SARS-CoV-2 is a paradigmatic expression of the contemporary predicaments of the ‘state of exception’. On the 13th of March 2020 a common governmental decree adopted “exceptional and temporary measures” [“medidas excecionais e temporárias”] (art 1,1) to deal with the public health crisis declared by the World Health Organization. Five days later, Marcelo Rebelo de Sousa, the Portuguese president (supported by the parliament and the government) issued a decree declaring the ‘state of emergency’ [estado de emergência] , the Portuguese constitutional term for the ‘state of exception’, due to the pandemic constituting a ‘public calamity’ [calamidade pública]. This declaration granted extraordinary powers to the government and suspended all rights susceptible of suspension under a ‘state of emergency’, including an implicit revocation of the prohibition of non-retroactive laws (art 5).
The suspension of the non-retroactivity of law was confirmed on the 19th of March 2020 by a law that implemented “exceptional and temporary measures to deal with the epidemiological situation” [medidas excecionais e temporárias de resposta à situação epidemiológica] (art 1-b). Article 2 and 10 of this law attributed extraordinary powers to the law of the 13th of March and set the start date of the law of the 19th of March on the 13th of March 2020. These two articles effectively established the date of inauguration of the de facto ‘state of exception’ five days before its de jure declaration. Through this recourse to retroactive legislation the temporal application of law became totally disconnected from its temporal creation. In fact, the declaration of the 19th of March retroactively changed the form of the declaration of the “state of emergency” as it now happened within exceptional times, opening an exception within the exception.
The full consequences of this process became explicit on the 30th of April 2020, when it was decided to no longer formally extend the ‘state of emergency’. In its place was approved a ‘situation of calamity’, its prologue declared its legal framework to be “[…] the 10-A/2020 Decree, of 13 March […] by force of the dispositions of article 2 of the law 1-A/2020 of 19 of March […]”. This situation of calamity is a legal regime reacted in 2006 that has no constitutional force, but through its use since 2020 became a form of non-constitutional ‘state of exception’. Hence, on the 30th of April a resolution was approved that no longer relied on the constitution to implement the ‘state of exception’. Rather, it appealed to the previous two temporary laws to establish a transtemporal ‘state of exception’.
On the 9th of June 2021 the last extension of the ‘situation of calamity’ was approved that takes the laws of March 2020 as its legal framework. The supposed return to a preceding normality after the ‘state of exception’ is now clearly suspended. The Portuguese paradigmatic case does not yet show the inauguration of a new temporality, but it reveals that it was through the enactment of laws with effect to the past that the future lost a connection with the previous temporal continuum.
 According to the Portuguese constitution the state of exception can be declared as either a ‘state of emergency’ or ‘state of siege’.
Jorge Varela is a doctoral student at the CRMEP, Kingston University London. He researches 20th century continental political philosophy.
Featured Image: Empty City. A deserted Queen Street on Christmas Day, 2006. Courtesy: Wikimedia Commons.