Lawless Sovereignty: Challenging the State of Exception
| Author | Susan Dianne Brophy |
| DOI | 10.1177/0964663909103635 |
| Date | 01 June 2009 |
| Published date | 01 June 2009 |
| Subject Matter | Articles |
CHALLENGING THE STATE OF
EXCEPTION
SUSAN DIANNE BROPHY
York University, Canada
ABSTRACT
Giorgio Agamben describes the origins of sovereign power, that power which consti-
tutes the state of exception, as a force that gains its strength in the ‘unlocalizable’ space
between fact and law. Terming this space the ‘zone of indistinction’, Agamben illus-
trates the particular manner in which the state employs law through exception, helping
to reveal the paradoxical and omnipotent qualities of sovereign power. While the
implications of his analysis hold that this form of power should be confronted and
challenged, Agamben does not arrive at how this may be pursued. By reading
Agamben’s writings alongside selected anti-colonialist texts by Frantz Fanon and
Aimé Césaire, it is possible to gain insights regarding both the dangers inherent to
this type of sovereign power, and how it can be challenged. It is argued that the type
of state that governs by means of exception creates the conditions that lead to its own
undoing. Groups whose consent to the state’s juridical order was historically tenuous,
if not altogether absent, lay claim to a distinct position that is always already external
to state sovereignty and law. Challenges from this position gain force by appealing to
an extra-state sovereignty that represents universalized justice rooted in lawlessness.
KEY WORDS
anti-colonialism; justice; law; legal studies; sovereignty; state; universality
INTRODUCTION
GIORGIOAGAMBEN’S(1995/1998) interpretation of the state of excep-
tion points to the mystical basis of sovereign power, namely its ability
to include individuals under its authority by means of a decision to
abandon or exclude these same subjects. Explaining this, he writes, ‘what
SOCIAL & LEGAL STUDIES © The Author(s), 2009
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0964 6639, Vol. 18(2), 199–220
DOI: 10.1177/0964663909103635
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SOCIAL & LEGAL STUDIES 18(2)
defines the character of the sovereign claim is precisely that it applies to the
exception in no longer applying to it, that it includes what is outside itself
. . . What cannot be included in any way is included in the form of the excep-
tion’ (p. 24). The best example of this peculiar form of sovereign authority
is the instance of the concentration camp, a paradigm of analysis that
Agamben frequently refers to in Homo Sacer, and expands upon in Remnants
of Auschwitz. In that context, sovereign power exposes its totality by visibly
applying towards the absolute inclusion of individuals under its jurisdiction,
but doing so only by suspending law to enact the abandonment and exclusion
of the subjects in question, with obviously detrimental consequences.
When studying this example of gross injustice in relation to Agamben’s
notion of the state of exception, it is important to ask, what happens to the
sovereign’s relationship with justice under the conditions of this exception?
Furthermore, if the state of exception is a state of suspended law but not of
lawlessness, can any act of dissent directed against the sovereign (in the name
of justice) ever be conceived of as a challenge from truly outside the law, or
is every act already included through a relation of non-law by virtue of its
originary exclusion? These two questions are the focal point of the discussion
that takes place in following pages of this article, which picks up where
Agamben leaves off in State of Exception.
Agamben (1995/1998: 20) recounts, ‘in our age, the state of exception . . .
ultimately begins to become the rule. When our age tried to grant the un-
localizable a permanent and visible location, the result was the concentration
camp.’ When the exception becomes the rule and liberal democracies stand
on the brink of fascism, we bear witness to, borrowing from Aimé Césaire
(1955/2000: 68), ‘a law of progressive dehumanization’. Borrowing from and
moving beyond Agamben’s deconstructive project, the aim is to contextual-
ize and construct an image of sovereign power, as it is enacted today to argue
that sovereign power is not the exclusive domain of the nation state; rather,
another form of sovereignty can be appealed to as a means of challenging the
state of exception. In this article, colonialism, rather than the concentration
camp, stands as a prime example of this rule of exception. References to
specific anti-colonial texts by Césaire and Frantz Fanon lend greater clarity
and insight on two fronts: first, in the development of an understanding of
the type of sovereign power that places life secondary (or in service) to the
state, and second, in contributing to the task of theorizing the type of dissent
that could effectively challenge the state of exception as it represents a distinct
form of sovereign power, as well as state law as a force of sovereignty in
general. This notion of all-encompassing state sovereignty stands to be kept
in check by an ‘always already’ externalized force, the potency of which lies
not in the unlocalizability of its power, but rather in the historical instance of
its universal distinctiveness. As it is argued here, only a universalized justice
claim, which gains its legitimacy in reference to the localizable particular,
both represents and reproduces a form of lawlessness that lends itself to the
inversion and gradual destruction of not only the sovereign power that rules
by permanent exception, but also any state-centered version of sovereign
power that rules by making false appeals to justice.1
BROPHY: LAWLESS SOVEREIGNTY
201
To support these claims, this article is divided into three sections. The first
section addresses key theoretical concerns and their terminological counter-
parts, focusing specifically on the details of Agamben’s ‘state of exception’
on its own, and as it can further be studied alongside the writings of Fanon
insofar as they implicate questions of life and justice in relation to state law.
The second section offers a sketch of what will come to be known as the
‘universalized justice claim’, the concept that stands to corrupt the state of
exception from the outside by appealing to a form of sovereign power that
is inimical to state, and therefore is always already outside state law. This
section again borrows from Fanon, specifically his concept of the ‘global
stance’, to link universality to the particular as a strategy of advancing a
justice claim for the purposes of mounting a challenge against a sovereign
power, as illustrated with reference to the current Six Nations’ land reclama-
tion effort.2 To conclude, the collision between the universalized justice claim
and the state of exception is analyzed, providing an opportunity to theorize
how the yawning gap between law and fact, and therefore law and life, that
nurtures (and is necessitated by) the state of exception can be exploited from
the outside in an effort to ‘invert’ the power of the state unto itself. This is
what is meant by an act of dissent, in the name of a universalized justice claim,
causing an inversion of the sovereign power: the reversal of power positions
towards different ends by means of exposing this fiction from the standpoint
of lawlessness creates a new realm of sovereignty. This inversion is ultimately
intended to rescue life from law as it is administered in the state of excep-
tion, which moves beyond Agamben’s own objective of wanting to save life
and law.
THE STATE OF EXCEPTION: LAW OVER LIFE AND JUSTICE
To fully develop the arguments being made in this article pertaining to state
authority, sovereignty, and law, it is necessary to provide a suitable termino-
logical foundation at the outset. A brief recapitulation of the dominant trajec-
tory in legal theory helps to focus this discussion around sovereign power as
it is expressed in state law, which uncovers the manner in which justice and
violence are implicated over the course of this article. In light of Weber’s
(1922/1968: 314) definitive claim that ‘today legal coercion by violence is the
monopoly of the state’, questions pertaining to the validity and limits of
sovereign power are intimately bound to state claims of legal jurisdiction.
The state’s capacity to create a sphere of applicability in which it can develop,
exercise, and preserve its monopoly of violence is thus an expression of its
sovereignty (Benjamin, 1921/1978). In this sense, sovereign power corresponds
to the degree to which state authority is legitimated through the validating
processes and functions of the juridical order. Recognizing that the legiti-
macy of state sovereignty depends on the production of order and obedience,
the validity of any given state’s authority can therefore be measured in terms
of whether or not its citizens act in accordance with a ‘general obligation
to obey’ those duties bestowed upon them by the juridical order of state
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SOCIAL & LEGAL STUDIES 18(2)
(Dworkin, 1986: 191). It is in the creation and enforcement of state law,
particularly in the most banal of these instances, that the sovereign power
makes its grandest gestures in the name of its own perpetuation, as Michel
Foucault (2003: 50) explains: ‘law is not pacification, for beneath the law, war
continues to rages in all the mechanisms of power, even in the most regular’.
Building on this view, Alan Hunt (1993: 18) claims that to achieve this façade
of pacification that sustains obedience, ‘law comes to be seen as the embodi-
ment of the universal notions of “justice” and “right”’, which provides the
first glimpse of the fictitious appeal to...
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