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On this page, you can find the agambeh and draft papers of the conference contributions. The suspension of the legal order is often said to be the natural consequence of the declaration of the state of emergency. This paper examines the role of suspension from a theoretical and legal point of view. The idea of the suspension of certain rules in times of crises is not at all new.

State of exception

On the contrary, the ancient Latin phrase necessitas non habet legem, coined by Seneca the Elder, already expresses a similar idea. In 20th auusnahmezustand German legal thought, the idea of suspension was wildly received and became a seminal topos in the discourse on the state of exception. It was in particular Carl Schmitt in his Political Theology from who popularized the idea: From that point onward, the ausnahmezustqnd of suspension has always been associated with the state of exception.

Thus, suspension became the cipher for the exceptional state.

This paper calls the depicted narrative into question. It answers the following questions: Where and why did the ausnamhezustand of suspension come up after ? Last but not least: Do we find legal evidence for the idea of suspension in the legal orders of Germany and France when it comes to the state of exception? How should constitutional democracies navigate current problems of security? Nevertheless, they have been confronted with pervasive insecurity and anxieties about appropriate responses, which has led to unprecedented delegation to and strengthening of executive power.

This situation raises pressing questions about the conditions required to enlarge the zone of security without an undue sacrifice of liberal values and institutions, whose hallmarks include embedded constraints on the decisions and acts taken by political authorities in order to safeguard the liberties of citizens.

Probing the Anglo-American tradition of liberal political thought and practice, our contribution will seek to identify conceptual and practical approaches for meeting security challenges without compromising constitutional and ethical principles.

Our inquiry will proceed in three parts. Individually and as a coherent group, these scholars sought to place emergency responses within agxmben ambit of the restraining qualities of law.

They thus revisited and deepened a genuinely liberal approach to emergency. The paper thus weaves together conceptual and historical vantages with policy considerations. Although manifestly of broader significance, it focuses primarily on the United States and Great Britain as the longest standing and most continuous examples of constitutional regimes struggling with these questions.

As both countries have possessed disproportionate global power and have faced security issues with magnified intensity and scope, ausnahmmezustand has generated much experimentation in thought and institutional arrangements pertaining to the governance of emergency.

These experiences and their lessons, we argue, have wide applicability. In the rhetoric legitimizing a ausnamezustand of exception, it is usually a clean-cut periodization that is implied. I will show that this implicit proposition is fundamentally flawed. As a case study, I analyze the American Civil War during which the extent of presidential war powers has been vigorously tested, setting precedents whose repercussions can still be felt today.

While some aspects of this story are specific to the political qusnahmezustand of the USA, others do offer general insights into the functioning of states of exception. States of exceptions are oftentimes introduced uasnahmezustand suggesting a clear periodization, consisting of three stages: In atamben, a temporal argument was used to legitimize extraordinary deviations from the constitution. The Long Shadow of Emergency Measures. The American Civil War provides three insight-ful examples of how agwmben state cannot simply return to agwmben status quo ante.

The steps actually taken to secure the safety of the Union received much scholarly attention and incited numerous debates. It is beyond doubt that Lincoln and his administration decisively shaped the American state sbe it politically, fiscally, economically, socially or culturally.

The laws, decrees and proclamations that elicited these changes were enacted in a democratic setting, yet often the result of the special war powers ausnahmezustannd the president. Thus, the legacies of the state of exception endured far longer than the war lasted.

Similarly, every exceptional action taken sets a precedent for later states of exception. Also, it basically declined to even assess the question of what might be appropriate under exceptional circumstances, arguing that this appraisal is political, not judicial, paving the way for decades of similar judicial evasions. Thus, it was Lincoln who set precedents, not the courts. In sum, the susnahmezustand argument advanced to legitimize the exception can only be called fictional, insofar as the actual timeframes connected to the state of exception endured far longer than was implied.


In the conference, I will present some systematic reflections on the relationship of democracy and law in the context of emergency. More precisely, my contribution poses two questions and answers them from a decided theoretical point of view. These questions are, as I will show, connected and need to be examined together:. The answers to these questions will structure my presentation as well. In detail, in the first two parts I will describe the relation of democracy and law in the light of different discourses in the history of ideas and argue why democracy as such, in opposition to our right based liberal model of democracy, does not need the state of emergency.

Thus, it is the law which determines agamgen contemporary form of democracy. The exception is incorporated into the system of rights because our body of law needs the exception to handle circumstances, which cannot be transformed into juridical language.

Our law and our understanding of the state need the exception, and as long as democracy is based on this system of rights, as long as democracy is connected to the civil state, it will run the risk of being affected by limitations induced by the state of emergency. I will argue that there is a specific tension between law and democracy which materializes in ausnshmezustand state of exception.

After this second step, I will illustrate my proposal through an example, which focuses on a specific constitutional discourse of the Weimar Republic:. Based on the debate between the German theorists ausnahmezustane law, Carl Schmitt and Otto Kirchheimer, which took part in the early s and picked out real democracy and the constitution of Weimar as their central theme, I will show that democracy is not necessarily dependent on the state of emergency.

Instead, and hereby I defend the position of Kirchheimer, the legal state relies on two normative principles which can collide and which can break the liberal democracy, based on the system of rights, apart: The state of emergency is a danger to democracy because it deforms the relation of these two ideas.

What could be observed in Weimar menaces all liberal democracies, because they are founded upon a system of rights which needs the exception as part of its own functioning. In order to manage systemic stress and crises injuries of democratic principles can be witnessed, as legality and legitimacy trump or even annul each other. In the late 19th century, Europe and, to a lesser extent, other parts of the world experienced an unprecedented wave of political murders, assassination attempts and dynamite attacks that have often been regarded by political scientists as the prototype of modern terrorism.

They were always a challenge to governments and state institutions, for these had to prove their ability to preserve public ausnahmdzustand, and give adequate answers to the calling into question of the monopoly on the use of force in order to maintain their legitimacy.

Anarchist terrorism failed as a mobilisation strategy. Yet, it proved quite effective as a provocation strategy and had important impacts on state politics and policies, legislation, policing, and public debates. Among the bourgeoisie and governments, it caused fears of an international anarchist conspiracy, which was fuelled by the expanding popular press.

Most importantly for our purpose: Taking a comparative perspective, this paper explores the anti-anarchist laws and the debates about their introduction and application that took place in both parliaments and the press two leading newspapers are examined per country. The paper will focus on the years when special laws were introduced in both countries, but also take into account the broader evolution of anarchist activism and its repression from the late s to the turn of the century, and ask about the longer-term effects of the special laws.

After the struggle between republicans and monarchist in the s and the boulangiste ausnahmezustwnd of the late s being adverted, the democratic regime can be considered as established. The Ausnahmeustand nation-state founded in was a constitutional monarchy and a liberal oligarchy rather than democratic; but from the s onwards it underwent processes of de facto parlamentarisation with governments asking the Chamber of Deputies for ausnahmezustaand of confidence and democratisation through expansion of the electorate.

The comparative approach will serve to carve out the peculiarities of each case, but is also ausmahmezustand to help us explain different practices — such as the broader recourse to special laws in Italy — and find out whether the difference of political regimes played a role. Thomas Blanck University of Cologne A revolutionary state of exception: Schmitt experienced the revolutionary collapse of the German Empire firsthand: In doing so, it connects the abstract level of Begriffsgeschichte with the history of the actual implementation of emergency measures.

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In other words, the central question is: The paper will focus on Munich in the years and After the end of World War I, the former capital of the Ausnahmezustamd Kingdom became the arena for a revolution that in many ways was far more radical and had longer lasting effects than elsewhere in Germany. Thus, Bavaria found itself in a twofold state of exception: On the other hand, the proclaimed Bavarian Freistaat free state itself was an exception within the framework of post-war Germany, challenging the authority of the newly formed republican government in Berlin.

The question posed above will be answered in three steps. First, I will delineate the evolution of the state of exception in Bavaria on a juridical and normative level. On which juridical sources were aisnahmezustand countless revolutionary emergency decrees based on — if they had a juridical base at all? Second, I will examine the discourse on the exceptionality of the situation, be it regarding the political actors in Munich who legitimized their actions by describing themselves as the exceptional forefront of political and societal renewal in Germany, be it regarding the external perception of the Bavarian revolution.

How did the revolutionary and counter-revolutionary forces — both operating officially in the name of freedom and democracy — publicly justify and communicate their actions that clearly violated the existing legal order?

In a third step, I will look at the state of exception as a factor of political mobilization. Or should one rather argue that once exceptional measures have been applied, there is no such thing as a normalcy anymore? Ausnahmezsutand emergency was repeatedly being invoked during the debate on terrorism in West Germany in the s.

Paperroom – Demokratie im Ausnahmezustand

During that decade, the conflict between the Red Army Faction and the West German state proved to be a paradigm for the growing political polarization of communications in German society.

It can be ausnahmzeustand, the terrorism-debate was the struggle over the state of the nation, and so the discoursive, political and moral boundaries were heavily disputed. In my presentation at the Kolloquium at DHIP I therefore want to focus on the discoursive and performative qualities of a state of emergency during the German Autumn of and how this was referred to aganben both sides of the confrontation.

Carl Schmitt shaped the idea of a conjunction of sovereignty and the state of exception. Whereas Schmitt conceptualizes the state of exception as a state of exception, Giorgio Agamben broadens the concept and introduces a permanent state of exception as experienced in the camp — which he thinks of as the nomos of modernity.

Within the camp, the sovereign rules over the inhabitants by way of reducing them to naked life. However, the state of exception is by no means a dictatorship; it is a lawless space [1]. My research project queries if German refugee shelters can be described as such lawless spaces in which the state of exception has become a quotidian reality. When arriving at the emergency shelters, the refugees have already undergone a first step of an integration by process [2]: Furthermore, in theory, they have access to human rights as well as German law.

My research work is based on the idea that the concept of the state of exception cannot convincingly explain the situation in the camps since it does not consider the coexistence of a agqmben regulation and a de facto lawlessness. In a pilot study, I have started to collect data with the help of structured interviews and field reports.

Orienting towards my research question, Ausnahmezusyand interviewed four different status groups ausnaumezustand workers, refugees, lawyers and administration workers ; special focus will be on the interviews with refugees as they are the ones affected by German housing politics.

The Italian experience offers some interesting profiles when dealing with the state of exception and emergency situations. The Constitution — as her predecessor, the Albertine Statute of — does not provide for any emergency section.

However, she agzmben for instruments to enact whenever a situation of necessity and urgency occurs mainly the law decree, at Article 77, the powers assigned by the Parliament to the Government in case of war, at Article 78 and the substitute powers of the government, when necessary, of Municipalities, Provinces, Metropolitan Cities and Regions, at Article