Modern Security State: Absolutism with Exception
The essential difference between the state of exception and sovereignty was established by Carl Schmitt in his famous book “Political Theologie”.
A state of exception is a concept similar to a state of emergency, but based in the sovereign’s ability to transcend the rule of law in the name of the public good.
He defines sovereign as “he who decides on the state of exception”.
Though, there is no theory of the state of exception in the public law but jurists considered it as genuine judicial problem especially on the Maxim that “Necessity has no law”.
Basically, the state of exception is based on this ancient necessitas legem non habet (Necessity has no law) that affirms that “it is the state of necessity on which exception is founded. On the other hand, it has juridical form and it is difficult to define this particular concept that has limit between Politics and law.
Moreover, according to precise opinion, the state of exception constitutes a point of imbalance between public law and political fact.
The exceptional measures derive their legitimate roots from the political crisis like civil war, insurrection and resistance.
In contrast, the state of exception is not legal in the juridical context (because it demands a fair trial before the Civil Courts).
Likewise, if the state courts laws employ exception that is the suspension of law itself. In a broader context, this particular concept falls between the public law and political fact and between the juridical order and life (Right) of a common man (between law and the living being).
As an Illustration, the main pinpoint that makes the concept of state exception” more difficult is its association with the civil war, insurrection and resistance.
Because under the condition of civil war, the state often acts politically and exceptionally that justifies its actions in terms of immediate response to the most internal conflict.
This is what gives birth to a new concept of “Legal Civil War”.
Note: When Hitler came to Power in 1933, he suspended the Weimar Constitution concerning personal liberties with the proclamation of decree for the protection of people and state. Thus, in this way the Third Reich became a State of Exception.
In this context, the modern totalitarianism (security state) can be defined, as the establishment , by means of the state exception, of legal civil war that allows the physical elimination of not only political adversaries but the entire categories of citizen, who for some reasons cannot be integrated into political system.
This is how, the voluntary creation of the state of emergency is established and has by become the mainstream practice of the Contemporary States, including the so-called democratic states.
In much broader sense, it has become a “Global Civil war”, the state of exception has become the focal point of the contemporary politics of the Modern states.
In the above context, the state of exception appears as threshold of indeterminacy between democracy and absolutism.
Moreover, there are two types of state of exception: the real of exception and the fictitious state of exception.
In the Anglo-Saxonian Sense, it is known as Fancied Emergency (For Instance FCR in Tribal Areas during Colonial Rule) and in the Nazian sense, it is known as “Willed state of exception” (Racial courage). Likewise, in the context of bio political(Michel Focault’s Biopolitics) significance of the state of exception as the original structure in which the law surpasses living beings by means of its own suspension emerges from the “Military Order”.
For instance, US presidential authorization of “Indefinite detention and trial by Military Commissions, on November 13, 2001 and the so called Patriot act issued by the US senate on October 26, 2001, allowed attorney General to “take into custody” any alien (subjects) suspected of activities that endangered the national security of the United States of America.
In a nut shell, the concept of State of exception is not a special kind of law (Law of War) rather it is the suspension of the judicial order.
Initially, this theory was justified by the German conception of “state of Necessity” then by Italian and Anglo-Saxon Conception of “State of siege” and “Martial Law”.