States of Exception

Now, many weeks into the rolling global coronavirus outbreaks, large-scale community lockdowns, and broad economic shutdowns; through a plethora of views on what the longer-term outcomes of this situation may be, it is clear that we are living through exceptional times.

Globally, as governments scramble with varying degrees of success to get a hold of the crisis, many countries have declared states of emergency.

Emergency decrees involve assuming certain types of exceptional powers by a government for the duration of a national emergency. Certain rights and civil liberties are curtailed and the protection of certain basic rights is suspended in order to ameliorate the threat.

Currently, in response to the global coronavirus pandemic, roughly one third of the world’s 7.5 billion people are in lockdown or under some form of ‘physical distancing’ restriction on free movement and association. In many areas authorities are enforcing curtailments.

We know from infectious disease experts that these measures are essential – the human population has no immunity to this novel coronavirus and a vaccine or effective treatment may be some way off. The only strategy we have is halting its ability to spread by our behavior.

Nevertheless, the question of how states of emergency are instituted and maintained raises important ethical questions in which the relationship of the state to its citizens is at issue.

Emergency decrees are quite obviously a potential problem in places where authoritarian governments and heads of state are already actively seeking means to extend or consolidate power, and for whom emergency decrees represent an opportunity to legitimize extraordinary levels of state coercion and control.

But even in the most “functional democracies” civil libertarians are counseling us to be vigilant. Even where people recognize the necessity of social distancing and accept the curtailments that states of emergency place them under, it is vitally important to remain conversant with the pressures this puts on our political and social order.

The modern democratic state is founded on ethical principles of rights and personal/individual freedoms. It gains legitimacy from democratic participation of citizens, and is based on a concept of the ‘social contract’ in which there is a tacit agreement by individuals to submit to the sovereign or state. The rule of law offers individual protection of rights and freedoms and endeavors to provide public goods like social harmony.

So the modern democratic state is built on the (ethical) notion that individuals have rights and duties in respect of each other. These rights and duties are mediated by the state, so that individuals have rights and duties in respect of the state under the social contract. The social contract is submission to, and protection under, the rule of law.

The primary function of the state should be to strike a balance between the ethical imperatives of freedom and ‘common good, as the rule of law.

Under what is described by Carl Schmitt in legal theory as a ‘state of exception,’ the sovereign possesses the ability to transcend the rule of law for the public good.

What is the ethical character of the state of exception? States of emergency or states of exception put a certain pressure on the social contract and represent an ethically dubious space.

The particular concerns that civil libertarians have around the use of emergency decrees all converge on this question of what sort of ethical zone a state of exception is, as a zone where the contract has to be temporarily renegotiated and a new balance has to be struck between individual freedom and common good.

There is a general concern that such a balance should err on the side of protecting privacy, freedom of expression, and other basic tenets of liberal democracy.

The important political and ethical question at the center of the state of exception is: how does the exception relate to the norm?

If the norm is the rule of law, then is the state of exception to be inscribed within it, and curtailed by it, or does the state of exception itself stand outside the rule of law?

In the first case, the state of exception is ‘built in’ to the state – so that checks and controls are placed upon exceptional state measures.

But if this is the case, then it is hard to see how it remains exceptional rather than becoming the norm, since building the exception into the state itself leads either to an infinite regress (by seeking exceptions to the exception), or cancels out the exception altogether by constitutionally inscribing the exception into the state as the norm.

In the second case, the state of exception is ‘extra-juridical’ in character – according to the argument that it is not desirable to control executive action in emergency with standard judicial accountability mechanisms.

But here, state power begins to exceed state power, so to speak, and not being subject to juridical order it represents a zone wholly external to the rule of law and the protections and rights and responsibilities that the rule of law enshrines. It is therefore difficult to see how the social contract can be said to hold under such a situation.

If the sovereign’s exceptional decree is not subject to constitutional constraint, the power to decide on the state of exception is therefore the power to decide what should count as a state of exception, potentially maximizing the state’s capacity to function outside the rule of law.

The Italian philosopher, Georgio Agamben, has argued that the state of exception is a zone which is not properly ‘internal’ nor ‘external’ to the state, but represents a kind of political, juridical, and ethical gray area where the distinctions between ‘inside’ and ‘outside’ are blurred, and that it in fact represents a realm of human activity not subject to the rule of law.

While there may not be sufficient evidence for Agamben’s claim that the modern democratic state is in a permanent state of exception, this accompanying claim bears thinking about: The state of exception assumes a fictitious political character in which the vocabulary of war is maintained, to justify recourse to government powers. Agamben believes the state of exception is a fiction sustained through military metaphor.

I do not here claim that the current emergency decrees across the world are fictions, yet it bears noticing that vocabularies of war are certainly sustaining them.

For Agamben, the stakes are high, and the danger is the slow disappearance of meaningful political action, because the attempt to encompass states of exception into the rule of law by legitimizing them represents a recognition of what is outside the law, and prompts sovereign attempts to encompass that very outside within the law. As a legal category, the state of exception therefore extends and completes the law’s empire.

What, then, is the peculiar ethical space of a state of exception, and what does that mean for us?

It is unclear what relation the exception has to normality, and what relation it has to the rule of law. Part of the point is about the possible erosion of civil liberties, but Agamben’s deeper worry about the slow disappearance of meaningful political action suggests that even as we remain committed to the truly monumental global effort to stem the tide of the coronavirus pandemic, we still need to pay attention to the pressures that government control of these measures places on the social contract between the state and its citizens, and to what it means for political discourse.