Posted by: rogermitchell | October 1, 2010

What’s behind things?

I’ve been revisiting my work on Giorgio Agamben’s concept of the state of the exception in his profound little commentary on Romans The Time that Remains and his book State of Exception. He was writing on this when George Bush was suspending American law and the Geneva convention on prisoners of war in order to imprison Taliban suspects in Guantanamo Bay and Gordon Brown was wanting to be able to justify detaining terrorist suspects for prolonged periods of time without charge. If I get Agamben right his big point is that this state of exception lies behind law and whoever wields its power is truly sovereign. Two things follow:

1. If it is exercised then you can discover the real motive or spirit that is motivating the application of law and lies behind the nature of the sovereign power that is being exercised

2. Any system of law and rule is only as good as the motive or spirit that lies behind it

This has profound implications for some supposedly Christian fundamentals. It is why an appeal to the ten commandments or the sovereignty of God in order to advocate or justify a course of action is simply not good enough. Both could imply that God is only insisting on his own way and that power is everything. This is why the incarnation and the cross are so important. They suspended the law and sovereignty in order to show what lay behind it. God’s life poured out in love and forgiveness to suck up other people’s sin and mess is what lies behind law and divine sovereignty. We discover what God is really like from this, and the resurrection confirms the new order. Now we know that any application of law or appeal to God’s sovereignty to justify any course of action that is not about the fulness of this primary revelation robs both God and humanity.



  1. I think this is something really important but I also think I need a wee bit of time to chew on it a bit. More later. c.

  2. I agree with Cheryl’s comment, I feel there is something important here, but I don’t have much background to inform my thinking on this or much time right now to follow through. Clearly there are also other related issues that need further consideration as well. Particulary the abuse of sovereign power, both in more recent times and historically, that a state of exception may facilitate.

    As I understand it the notion of a ‘State of exception’ originated with Carl Schmitt who was known as the ‘Crown Jurist of the Third Reich’. Schmitt is described by Herfried Munkler (Professor of Political Theory at Humboldt University, Berlin) as someone who was embittered, jealous and occassionally a malicious man. Much of Schmitt’s work promoted fascism, but it was Hitler that actually suspended the Weimar Constitution for the duration of the Third Riech and so suspended a number of constitutional protections on civil rights. So the pedigree of the notion and the outworking of it do not seem to be good to me and thus I am not surprised that there are more recent applications of the notion that do not seem to smell good!

    I am not familiar with Giorgio Agamben’s work, or any critiques of them, and so perhaps this is an instance where a little knowledge of mine proves dangerous, but it does seem that your ‘two things’ follow – at least in the arena of world affairs. However, your ‘two things’ do not, somehow, seem to be quite right to me. Necessary, yes, but perhaps not sufficient? Perhaps I am wrong and guilty of taking them out of context. Anyway, let me try to explain in outline …

    Firstly let me say that all God’s laws are undoubtedly good because God is good. But there do seem to be different categories of His laws. There seem to be spiritual laws that govern life in God’s ‘economy’, like: the law of sowing and reaping, the law of love – a higher law than OT law (which leads to death whereas the Spirit gives life!), but there also scientific laws that are the way they are because God so willed it.

    The point I wish to make is that one can have these perfectly good laws and even the spirit and motive behind them can be good but the unwitting consequences [of mis-application?] – with, or indeed without, invoking a state of exception – can be disasterous and I presently fail to see how this has been included in your ‘two things’. I will re-read and ponder further!

    Incidentally, perhaps another way of looking at miracles is as states of exception, invoked by God, from the system of scientific laws that flow from God’s throne.

    Good to hear the news about the extension for your thesis.


    • Dave, I will be making a new post shortly. In the meantime I’ll just pick up your point that “one can have these perfectly good laws and even the spirit and motive behind them can be good but the unwitting consequences [of mis-application?] – with, or indeed without, invoking a state of exception – can be disasterous”. What I am getting at here is precisely the point that applying any laws, even those that appear to derive from God, can indeed be disastrous. If the concept of the state of the exception is a way of discovering or expressing the idea of a motive or attitude behind law, then it offers a way of explaining the impact that the incarnation and the cross can have on contemporary law and its application whether at a classroom, business, civil, criminal, national or international level.

      • Thanks for your reply Roger. I think that I now better understand what you were saying in your original post, having re-read and pondered a little. [Unfortunately, though, I have been a little pre-occupied recently after my elderly, frail mother who has severe dementia was taken in to hospital because she was passing blood in her urine. An ultasound scan has revealed a growth in her bladder and it is unclear at this time whether it is benign or malignant. She has had numerous surgical procedures in the past so there is too much scar tisssue to contemplate further surgery. Also the doctors believe that she would not survive a general anaesthetic. This is part of the reason for the delayed response.]

        However, that said, I still think that your comments only apply to certain classes of laws not all of the classifications. Nevertheless, I will pass on this and consider the new post that you mention.


  3. Definitely interesting stuff. As I have understood Agamben, he takes the US post-9/11 as an example of the state of exception in which it is “attempting to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war… becomes impossible” (p. 22). This allows for the suspension of individual rights and freedoms and even permits people to be reduced to mere objects (Guantanamo Bay detainees, for example).

    This is at odds with even the Enlightenment’s liberal social contract which underpins our Western social order. In that contract, we surrender a certain proportion of our ‘autonomy’ to the state, which is then considered ‘sovereign’. The state may then interfere with our lives and make laws to which we broadly assent for the security of our life, liberty and property. While we might (or might not) already consider this to be domination, what Agamben is effectively saying, as I read him, is that the state of exception is when this liberal contract is suspended and the state’s sovereignty is enhanced at the more significant expense of individuals’ autonomy/rights. The ‘sovereign’ (or the Leviathan, to use Hobbes’s language) gains power to define and to coerce.

    I’m much less familiar with this idea that the state of exception lies behind law. And, if this is what Agamben says, I think his position needs amending. Certainly, I come to broadly the same conclusion as Roger but from a different route. Law, in the first instance, is an attempt to invoke justice and it is always necessarily failing. It is in a state of autoimmunity: to the extent that it brings justice, it is also doing injustice to people’s freedoms etc. This is clear, actually, in the effect of ‘the Law’ in the Hebrew scriptures. Forasmuch as the law enslaved, it was also looking forward to that which was to come and, in that sense, Jesus was able to say that he did not come to abolish the law but to fulfill it. I therefore don’t think that God has laws or other such codes or economies. He has instead justice, love, gift etc. In any case, God absolutely has never invoked a state of exception though, curiously, much Christian theology seems to suggest that the fall provoked such a state of emergency and that God has been firefighting ever since!

    • I am working on a follow up this post, which may appear before the day’s out. But in so doing it would help me know why you state so categorically that God has never invoked a state of exception. If the state of exception is the ultimate in sovereign power, I am interested in the capacity of the incarnation and the cross to provide a state of exception that empties out sovereign power

      • Ah! But I think you’re arguing for a different type of ‘state of exception’ in which sovereignty is in fact given away, no? The kenotic God is not resorting to his power base but defying the very idea. He is not seeking emergency powers but giving away what he has for the others. Instead of subjects being turned into objects, Jesus becomes intersubjective with us and we become ever more true subjects as the veil is torn in two. I think.

  4. This is interesting in terms of the article I read today, and blogged about at Martin Scott’s site, on the sovereign citizen movement in the US. These folks, often out of a faith stance, believe that each one is a sovereign individual in that no laws of the land can apply to them. So they devote their lives to proving the lack of validity of any law including things like required driver’s licenses or building permits. For many this means long court cases as they seek to find a loophole in the language of the laws.

    It has also led others to commit murder, often of police officers when stopped on minor violations of traffic laws. As no law applies to them, murder of a police officer becomes a legitimized response to such an attempt to impose invalid laws and diminish the individual’s sovereignty.

    All of this is offered in terms of a ‘Christian’ faith and the belief in the sovereignty of the individual. So in this case sovereignty is behind the desire to abolish the law.

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