The Legality of Necessity in the State of Exception; Agamben via Bern

In response to extreme conditions, extraordinary powers are assumed by a government in the form of a state of exception. Adhering to the necessities present, the state of exception allows for actions beyond the scope of a set up legal order and its norms. The modern state of exception appears to elude any juridical explanation to justify its legality. On this point, theorist Giorgio Agamben questions the presumption of the state of exception being predominantly an issue of fact. The parallels drawn between the state of exception and the state of necessity lead Agamben to begin his study with the analysis of the legal concept of necessity. The medieval theoretic works of Gratian and Thomas Aquinas appear to set the foundations of this parallel. Both the concept of necessity and the modern state of exception appear to rely upon the presumption of “pure factuality”, as an objective given. A reliance, which appears to pose a threat to any legal order, as it may allow for a government to act beyond the premise of a set up legal order. The Swiss Vollmachtenregime of 1914 provides for a unique insight into determining to what extent the modern state of exception is reliant on the concept of necessity. The Swiss state of exception would endure its most serious challenge by the Social Democratic Party of Switzerland, with its members Ernest Paul Graber and Robert Grimm arguing against its necessity. Necessity in this instance appears to exist far from an objective given. Similarly, the Swiss Epidemics Act of 2012 and its subsequent application during the outbreak of the Coronavirus health crisis in 2020 provide for a further insight into understanding the parallels between the state of exception and the concept of necessity. Extraordinary measures would be implemented pursuant to the Act’s Article 7. The legality of these extraordinary measures appears to be justified by a determination of necessity. The main objective of this paper will be to present how Agamben questions the grounding of the state of exception into the concept of necessity. In presenting the arguments and developments from the Swiss political reality, this paper will be allowed to pursue its second objective and attempt to uncover the degree to which the concept of necessity is the basis of the state of exception. The final objective will be to assess whether the parallels between the state of exception and the concept of necessity may undermine a legal order. To reduce the legality of a state of exception to a subjective interpretation of necessity, would appear to pave the pathway to a reality whereby “almost anything [would be] possible [to any government] by means of a situation-specific interpretation” of ‘law’.