Anyone working in a humanities or politics department during the George W. Bush presidency was sure to encounter the notion of the “state of exception.” With its origins in the political philosophy of Weimar Germany, it became the lens through which scholars tried to make sense of the post-9/11 era. Their primary inspiration and guide was the Italian political philosopher Giorgio Agamben.
In his books Homo Sacer (1995) and State of Exception (2003), Agamben examines a paradox at the core of political sovereignty. The sovereign authority that instates and grounds the rule of law, he observes, must also be empowered to suspend it. The suspension of law occurs, most obviously, when a crisis leads the authority to assume emergency powers that bypass normal procedures and constraints. Following the Weimar-era right-wing jurist Carl Schmitt’s dictum that “sovereign is he who decides on the state of exception,” Agamben concludes that sovereignty must be located outside of the law that it sustains. What guarantees the law also stands outside of it. The state of exception, in this sense, always hovers behind the normal rule of law.
The second key concept for Agamben’s argument is “bare life,” understood as the pure biological functioning of the human organism. In the ancient conception articulated by Aristotle, “bare life” stood outside of politics, which was concerned instead with the “good life.” But Agamben argues that what is distinctive to modern politics is the extensive involvement of political power with the “bare life” of citizens — what Michel Foucault called “biopower.” With the emergence of biopower, what in classical thought had been excluded from politics — mere biological life — becomes the primary object of the exercise of power.
For Aristotle, the law, which orders the polis, enables the transcendence of bare life and the pursuit of the good life. For Agamben, the state of exception, which is the law’s necessary precondition, reduces the citizen to bare life: The suspension of the law facilitates the direct exercise of sovereign power over human beings, now stripped of the protection of the law and deprived of the substantive goods of the polis. Hence, Agamben interprets the modern rise of biopower as a permanent state of exception, the full realization of which could be found in the Nazi concentration camps.
Throughout the Bush era, academics and intellectuals applied this rather abstract set of arguments to the U.S. government’s heightening of security measures, rollback of civil liberties, and controversial practices of “enhanced interrogation” and extraordinary rendition. Agamben himself also articulated these criticisms. The theory seemed to fit the political circumstances: The emergency of 9/11 had enabled the sovereign to declare a state of exception; the rule of law had been partially suspended; what followed was the violent exercise of power over bare life in the secret black sites of the War on Terror and the torture chambers of Guantánamo Bay.
The intellectual vogue for Agamben and the “state of exception” critique subsided rapidly after the election of Barack Obama. With the 2008 financial crisis now at the center of public discourse, Marx-inflected critiques of capitalism came back into fashion. Meanwhile, Obama’s continuation of many of Bush’s national security policies was an awkward fact that those on the left mostly preferred to ignore. Perhaps the embrace of Agamben had been little more than a highfalutin legitimation of mundane partisan animus.
This cynical conclusion received further confirmation when the once-revered philosopher began to attack the Italian state’s response to the newly rampant coronavirus in February 2020. His polemics, which proceeded largely along the same lines as his earlier critiques of the War on Terror, made him the target of ferocious criticism from his former allies on the left. Meanwhile, right-leaning opponents of lockdowns started to read and promote his work intently. In some ways, our current intellectual panorama now looks like the inverse of the mid-2000s, with the right avidly critiquing the state of exception and the left largely demanding acquiescence to it.
Even beyond partisan motives, this reversal is not surprising. The notion of the state of exception also has an ideologically eclectic pedigree, and this is not the first time it has been handed back and forth between the right and the left. Its elaboration begins, as noted above, with Carl Schmitt, an anti-liberal legal theorist who later became a card-carrying Nazi. But one of Schmitt’s key interlocutors during the 1920s and 1930s was the Jewish mystic and Marxist critical theorist Walter Benjamin, who offered his own elaboration of the state of exception.
It’s worth recalling that, unlike Agamben and his recent disciples right and left, neither Schmitt nor Benjamin framed the state of exception primarily as a danger. On the contrary, both were, in their way, advocates of the state of exception. For Schmitt, a state must be able to step outside the bounds of the law in order to maintain the law. Suspending the law, in other words, is necessary to the law’s survival. Benjamin, for his part, argued that it is the task of communist revolutionaries “to bring about a real state of emergency.” This “real” emergency would supersede the ongoing state of exception by which the capitalist order has preserved its dominance — a state of exception that, in the modern era, has become the rule.
For Schmitt and Benjamin, then, the state of exception was a way to conceive the sought-for transcendence of the fragile democratic capitalist order of interwar Europe. Agamben, by contrast, adapted the idea to critique the internal contradictions of the postwar international liberal order, which contained the same illiberal tendencies that had allowed the Weimar Republic to become the Third Reich (with Schmitt’s ideological and practical support). Here again, Agamben’s thinking draws upon Foucault’s account of biopower, a form of power that bypasses the institutional and procedural safeguards of liberalism, for example when health authorities may confine the insane or the sick without due process.
Beyond obvious partisan loyalties, part of the reason that liberal academics who had repudiated the Bush-era state of exception went on to largely embrace Covidian biopolitics is that the implications of the concept have always been more ambiguous than a superficial reading of Agamben might suggest. Schmitt and Benjamin deployed it to describe types of regime change, not as a form of politics to be resisted — although each was opposed to the practical implementation of the other’s version, respectively fascist and communist, of the concept. Likewise, liberals in the Trump era arguably saw themselves not as resisting a state of emergency imposed upon them, as they did under Bush, but rather as the ones declaring it, with their protestations of “this is not normal!”
Those who resist the state of exception may believe that if they do so fervently enough, we can return to some state of normality. But all of the most influential elaborations of the concept suggest that exceptionality will always persist to some extent as a foundation of power. If we take these ideas seriously, a contemporary politics that targets the Covidian state of exception likely proceeds, as was the case in the Bush era, from an overly narrow understanding of its scope.
The result is that the anti-exception politics of the Covid era risks maintaining the fundamental framing of the regime it opposes. There is clear recent precedent for this. Those on the left who opposed Bush’s War on Terror regarded national security as the embodiment of sovereign power exercised outside the rule of law. Later, many of the same figures embraced the same security agencies as a bulwark against Trumpism, and fomented a panic about far-right domestic terrorism that echoed post-9/11 rhetoric on the right. Similarly, those currently positioning themselves against the Covid state of emergency may be just as likely to perpetuate a mode of governance that authorizes itself in the looming threat of a future emergency.
Already, those arrayed against Covidian biopolitics sometimes seem to be declaring a sort of meta–state of emergency: the emergency of Covidian biopolitics itself is the threat to the body politic that must be contained before anything else can be done. The most notable policy manifestations of this approach are state-level executive orders banning mask and vaccine mandates, which mirror the emergency measures that were used to impose the mandates in the first place. Regardless of the justification of these policies, their resemblance to the ad hoc crisis containment measures they oppose reveals the pervasiveness of the politics of exceptionality.
Opposing the state of exception, recent history suggests, can perpetuate it rather than help us move beyond it. This is not altogether accidental: The mode of analysis pioneered by Schmitt and Benjamin was designed to make the case for the necessity of exceptionality, not for its overcoming. Those pursuing this line of thinking today may thus be just as likely to ensure the self-perpetuation of the politics of emergency as to point us beyond it. Offering substantive alternatives to the sclerotic institutions and dysfunctional governance structures on display in the past two years will require looking elsewhere for a path forward.
The Crisis of the Crisis