Philosophy en noir (Ukázka, strana 99)

12 In the same year that an American policeman was searching for a way of stemming the flood of gangsters into London, Carl Schmitt, whose ideas were probably inspired by Article 48 of the Weimar Constitution, was preparing the second edition of his Political Theology (1st edition 1922, 2nd edition 1933). Schmitt also published an expanded version of The Concept of the Political, as well as the no less well known essay Legality and Legitimacy (1932), and in all of these works we find what approximates to a juridico-political commentary on what Captain Jiggs Allerman proposes in crude terms in Wallace’s When the Gangs Came to London, namely a theory of sovereignty and the “state of exception”. “Sovereign is he who decides on the exception” reads the first sentence of Political Theology110. And because the Ausnahmezustand or state of exception is simply another name for a crisis, it would be possible to draw on Schmitt’s considerations as the backdrop against which to examine Husserl’s concept of crisis, nonlinear teleology, and above all the emphasis laid on responsibility.

Leaving terminology to one side, Schmitt’s state of exception is a particular manifestation of the general phenomenon of crisis (though this formulation could be inverted) in the sense that it displays the same underlying structure. The link between crisis and a state of exception is clear to the legal scholar Clinton L. Rossiter, as we see in the title of his Constitutional Dictatorship: Crisis Government in the Modern Democracies (New York 1948), in which he writes: “... in time of crisis a democratic, constitutional government must be temporarily altered to whatever degree is necessary to overcome the peril and restore normal conditions (...) the government will have more power and the people fewer 110 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab, MIT Press, Cambridge, Massachusetts 1985, p. 5.

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rights...”.111 The “necessary degree” (clearly formulated in the demands set by Jiggs Allerman) is vague: are we still talking of a legal state or, on the contrary, a complete suspension of the rule of law as handed down by precedent? Or is this a state in which political (state) and executive power has merged with legislative power and can no longer be distinguished? For this reason too, since the time of Roman law the state of exception has been associated with civil war, rebellion, an extreme threat to the state, states of emergency, etc. In brief, the problem is as follows: if the declaration of a state of exception were a purely political decision, it would be illegal and there would be a risk of chaos, because a state of exception must somehow be “legitimised” even though it suspends legality. This is where Carl Schmitt comes in, who understands the state of exception as a borderline concept, as the threshold of the law (the border or threshold implies ambiguity: neither-nor, both-and) Because the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it is not the legal order. The existence of the state is undoubted proof of its superiority over the validity of the legal norm. The decision frees itself from all normative ties and becomes in the true sense absolute. The state suspends the law in the exception on the basis of its right of self-preservation, as one would say. The two elements of the concept legal order are then dissolved into independent notions and thereby testify to their conceptual independence. Unlike the normal situation, when the autonomous moment of the decision recedes to a minimum, the norm is destroyed in the exception. The exception remains, nevertheless, accessible to jurisprudence because both elements, the norm as well as the decision, remain within the framework of the juristic.112

111 Cited in Giorgio Agamben, State of Exception (Homo Sacer II). The University of Chicago Press, Chicago and London 2005, p. 8.

112 Schmitt, Political Theology, p. 12.

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This is not simply to say that the crisis is something that can be encountered or experienced in reality (up to the very boundary of banality or familiarity: I will leave to one side life or economic crises and even worse examples), though this is not without interest, because in such cases the crisis is something like a borderline situation, a state of limitation that, like state and event, being and becoming, is such that one cannot be separated from the other. This is why the “crisis” is also a situation of irreducible ambiguity.

However, this complicates matters considerably, because the simple topological antithesis outside/inside implied in various theories of the state of exception is insufficient to explain the phenomenon it sets out to explain. Giorgio Agamben puts it thus in his monograph on the state of exception: If the state of exception’s characteristic property is a (total or partial) suspension of the juridical order, how can such a suspension still be contained within it? How can an anomie be inscribed within the juridical order? And if the state of exception is instead only a de facto situation, and is as such unrelated or contrary to law, how is it possible for the order to contain a lacuna precisely where the decisive situation is concerned? And what is the meaning of this lacuna? In truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other.113

But let us return for a moment to Schmitt and the quote from his Political Theology: “... the state of exception is something other than mere anarchy and chaos”. A state of emergency is declared and is therefore the subject of a decision, a sovereign decision, because it is a decision on an exception, which is always outside the norm, since the general norm can never cover an exception – neither indeed can 113 Agamben, The State of Exception (Homo Sacer II), p. 23.

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