By Anna Migliorini and Lotte List
The question of the state of exception as a modern juridical concept cannot be approached without confronting its conception in the works of Carl Schmitt. According to Hans Boldt’s entry in Geschichtliche Grundbegriffe, Schmitt was the first to pose the problem of the state of emergency (Notstand) in terms of a ‘state of exception’ (Ausnahmezustand), and thus approaching the topic needs to confront its conception in his works. While Notstand had been known in different variations to European jurisprudence since early modernity, the latter is specifically a 20th-cent. invention (Boldt 1972, 343, 372 et sq.). Furthermore, Schmitt did not only coin the concept but also crucially influenced later sources on its history and development. The project of the Geschichtliche Grundbegriffe was spearheaded by Reinhart Koselleck, who was a protégé of Schmitt, and its methodology of conceptual history was heavily inspired by Schmitt’s sociology of juridical concepts, his notion of polemical concepts, and his emphasis on the consultation of historical encyclopaedias (Laak 1993; Koselleck and Schmitt 2019; Olsen 2011; 2013). Joachim Ritter and the circle around the Historisches Wörterbuch der Philosophie hosted Schmitt as a guest speaker and invited him to contribute to the project, and although he rejected, in the end, it was another of his students who wrote the entry on the state of exception: Ernst Forsthoff.
Schmitt’s concept of the state of exception, however, is plagued by a fundamental ambiguity; a dialectical contradiction which has remained integral to the tradition following him. Forsthoff’s definition of the term is an instructive example:
“State of exception [Ausnahmezustand] denotes that situation [Lage] in which a state can no longer master a threat – either from the outside in the form of a hostile attack or from the inside in the form of anti-constitutional forces or natural catastrophes – by normal constitutional means. […] The state of exception is a legal institution [Rechtsinstitut] typical of the constitutional state. For in those cases where a government body, such as the absolute monarch, commands over the entire state power [Staatsgewalt] in all its wealth, there is no need for extraordinary mandates in order to overcome difficult situations.” (1971, 669)
Without commentary and seemingly without realising it himself, Forsthoff thus defines the state of exception in two mutually opposing ways: First, as an exceptional situation in which the state finds itself; and second, as a legal institution or instrument wielded by the state. These two senses not only diverge but apparently contradict each other: The first represents an existential threat to the state, the second the means of the state to overcome this threat. The state of exception is at one and the same time a historical situation or event and a legal measure; the concept thus belongs to both philosophy of history and jurisprudence. And while the former sense legitimises the use of the latter, only the latter definitively determines the existence of the former. The exceptional situation and the exceptional means are interlocked in the dialectic of the state of exception. This dialectic, however, is not simply due to an unclarity in Forsthoff’s definition but stems from an ambiguity inherent in the concept itself. The ambiguity reaches back to Schmitt’s initial conception in Politische Theologie (1922) and is indeed central to the problem of the state of exception as such (as argued in List 2023a; 2023b, Chapter 5).
Taking its starting point in the above considerations, the proposed article faces two central problems: First, the disentanglement of the discussion from the dominance of the Schmittian discourse. Second, the determination of the sense of the state of exception in its historical employment as either a situation, an instrument, or a combination of both. These two problems will lead the discussion, whose character will be philosophical, historical, and will bring it to approach contemporary political issues. In this way, the article seeks to demarcate the discussion in contrast to the Schmitt tradition as propagated by Koselleck, Forsthoff, and the circles around the two major German encyclopaedic projects, while simultaneously considering this tradition a key part of its material. The article will proceed from the presentation of crucial moments in the theoretical and political history of the exception, through the study of Marxist primary sources on the exception, up to contemporary theoretical reflections on more recent situations labelled as states of emergency and exception. This also implies a critical engagement with key insights into the 20th-cent. history of the state of exception as provided by the work of Giorgio Agamben, who yet has also contributed to disseminate a Schmittian analytical framework disguised in Benjaminian jargon (see List 2020).
Agamben in his book on the State of Exception reconstructed an ‘esoteric dossier’ of an alleged implicit debate between Schmitt and Benjamin on the matter. According to this interpretation, Schmitt’s definition of sovereignty as the decision on the state of exception was originally inspired by Benjamin’s essay “Zur Kritik der Gewalt” from 1921, in which Benjamin also discussed the fundamental undecidability of legal questions. The result of this backwards interpretation by Agamben is that we are served, not a Benjaminian critique of Schmitt, but rather a Schmittian Benjamin. Neither of them is the Benjaminian interpretation of the state of exception, the problem being Agamben’s interpretation itself, insofar as he contributes to constructing a particular paradigm and connotation of the state of exception, which does not restore the full scope of the (Benjaminian) concept, and which tends to reduce the state of exception to a conservative if not regressive measure.
Agamben’s reading, however, has not been confirmed by other scholars, who have rather limited the scope of their interpretation to concrete evidence: Benjamin never claims that “Zur Kritik der Gewalt” is the starting point for Schmitt’s theory; he merely credits Schmitt as one of the sources for his Ursprung des deutschen Trauerspiels (1928) (cf. Gentili 2019, 31-33). It should be recognised that Agamben has done great work to bring light upon Benjamin’s engagement with the concept of the state of exception. Yet on the other hand, precisely the scope of this achievement also means that he has influenced the reception of Benjamin on this topic. Agamben’s notion of the state of exception leads him to see the historical emergency situation as emanating entirely from the sovereign logic of the state. Moreover, the outbreak of Covid-19 in Italy in early 2020 led him to hastily assert that, concerning the “measures of exception, the invention of an epidemic offers the ideal pretext for widening them beyond all known limits” (Agamben 2021, 13; cf. Antoniol 2022). This descent into conspiracy theories, however, should not lead us to abandon Benjamin’s relevant critique of the state of exception and let it become a collateral damage to Agamben’s intellectual drift. It becomes, therefore, even more urgent to return to Benjamin as a primary if unorthodox source of the Marxist theory of the state of exception.
Benjamin proposes a new double definition of the state of exception, by playing with that same original ambiguity between event and measure. With his differentiation between the state of exception as rule (als Regel) and the true (wirklicher) state of exception, he disqualifies the Schmittian paradigm, revealing it as a false exception, and offers the programmatic option of a true one, which is charged with bringing an end to the rule of the false. Benjamin at one and the same time breaks with the tradition initiated by Schmitt and with the right-wing monopoly on the concept, and points back to a tradition of the critique of the permanent crisis among leftist thinkers. By doing so, he makes of the state of exception a productive concept, a programmatic emancipative measure, to oppose to the eternal return of empty novelty, to the recurrent structural capitalist crises, and to the liberal ideology of progress (see Migliorini 2024).
With the proposed article on the concepts of Notstand and Ausnahmezustand, we aim to recover, inter alia, the multilayered yet fragmentary Benjaminian critique of the state of exception, beyond the Schmittian framework, to which it has often been reduced. This project would presuppose a clear conceptual distinction between the historico-philosophical and juridical dimensions of the exception, but also a critical reassessment of how they have historically converged to legitimise state power. This has become all the more urgent in the light of recent global history, which some have rushed to characterise as a ‘poly-crisis’ (see, e.g., Tooze 2021, and World Economic Forum Risk Report 2023), and which can be regarded as a ‘moment of danger’, such as those in which previous theorisations emerged.
Moreover, the Covid pandemic, the wars in Ukraine and Palestine, and global warming, extinction and climate crises all call for a critical analysis of exceptional politics. This is necessary to understand our past and present, both as theory and as concrete issues, but also because it seems increasingly needed to counteract conservative politicised declarations of states of exception, which threaten to normalise the exception, disempowering its critical potential.
Anna Migliorini (Florence) received her PhD in Philosophy in 2021 from the Universities of Florence and Pisa. Her dissertation, titled “Walter Benjamin e il ‘wirklicher Ausnahmezustand’” sets off and concludes with Thesis VIII of Über den Begriff der Geschichte (1940) and attempts to define the different conceptions and uses of “exception” employed by Benjamin. She previously studied at Ca’ Foscari University (Venice) as well as at Paris 1 – Panthéon-Sorbonne – and at the University of Verona. Her engagement with Benjamin’s work began in this period as she approached his particular use of the “eternal return”, comparing it with F.W. Nietzsche’s and L.-A. Blanqui’s usage of the concept.
Lotte List holds a PhD in political philosophy from Copenhagen Business School, where she defended her dissertation entitled Crisis Sovereignty: The Philosophy of History of the Exception in 2023. Her work centers on the intersections between political theory and philosophy of history. She has published articles on Carl Schmitt, Walter Benjamin, sovereignty, and the state of exception, as well as co-edited the volume Political Theology Today: 100 Years after Carl Schmitt with Bloomsbury. She is a board member of the Danish Society for Marxist Studies and co-organizes its annual conference.
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