The State of Exception De-Institutionalized

In modern democratic states ruled by laws, unforeseen extreme situations present an existential threat to the democratic rule of law legal order. Limited by the “inflexibility of laws”, the modern state of exception arises in response to situational conditions present as a remedial political institution released from the prescribed norms of a set up legal order, with the sole purpose of re-establishing normalcy. The institutional creation of the modern state of exception within democracy arises from revolutionary France. Theorist Giorgio Agamben identifies the law of Fructidor 18 an V as the first occasion of a modern parliamentary legislative government “grant[ing] itself the right to put a city in a state of siege”. Having to decide between either implementing effective measures or remaining within the rule of law legal order, French parliament would “open the constitutional barrier in front of the soldiers of the fatherland”. Under this pretext, the state of siege would allow the emerging French republic in the 18th century to effectively respond to extremities. Despite this institutional creation within “democratic-revolutionary” tradition, the modern state of exception appears to have since developed based upon the medieval legal maxim 'necessitas legem non habet'. Whereas initially upon extreme situations arising, the state of exception would provide for civil authority to be entrusted within the hands of military competence, the recent examples of state of exceptions allow for the assumption of enhanced power from government beyond the limitations of a democratic rule of law legal order, based upon a justification of necessity. This development of the state of exception would become apparent during World War I in France. Despite having declared a state of siege, the executive government would also enjoy enhanced political power justified on the grounds of “necessity”, as was the case with the Law of February 10, 1918. Extraordinary governance appears to have since long shed itself of its original institutional premise. Indicative of this development is the fact that present day France has since created three more avenues to extraordinary governance on the basis of “necessity”, leading to enhanced power by the government. The first objective of this paper will be to present how the state of exception was created at the onset of modern democracy within republican France as a strictly institutional instrument. By using parliamentary discussions leading to the Law of 18 Fructidor, the “democratic-revolutionary” understanding of the state of exception will be better understood. In presenting the developments of the state of exception from France, this paper will be allowed to pursue it second objective and uncover to what degree the modern state of exception is still an institutional instrument. The final objective will be to assess the extent of which the modern state of exception is indeed based upon “democratic-revolutionary” tradition. To understand the state of exception as enhanced governance beyond the democratic rule of law legal order, justified by necessity, would appear to arise out of legal theory foreign to those echoed within “democratic-revolutionary” tradition.