Historical Foundations

In classical legal theory, the jurist Carl Schmitt introduced the concept of state of exception in the 1920s, arguing that in a truly extreme emergency legal norms cannot sufficiently govern the situation. Schmitt famously stated that “sovereign is he who decides on the exception,” meaning that the ultimate authority rests with those who can determine when to halt the normal legal order and use extra-legal power when necessary to save the state. He viewed this suspension of law in particular as a necessary act, grounded in the legitimacy of necessity rather than in normal legal procedures. For Schmitt, the core issue thus is about state survival, even at the expense of overriding established legal norms.

Schmitt is controversial because he provided legal and philosophical justification for authoritarian rule. His open support for the Nazi regime, including helping draft legal arguments for its consolidation of power and exclusion of Jews from public life, permanently tainted his intellectual legacy. Despite his affiliation with fascism, his work remains influential in political theory and legal studies, provoking intense debates about the boundaries of law, democracy, and sovereignty.

Contemporary Perspectives

Contemporary theorist Giorgio Agamben built on Schmitt’s ideas in his work “State of Exception” (2005), adding a critical, philosophical perspective. Agamben defined a state of exception as a paradoxical legal condition in which law is suspended “not in order to abolish it, but to preserve it.” In this state, legal rules remain in form but are effectively put on hold, resulting in a situation where standard rights and protections are removed. Agamben described this phenomenon as creating a “point of indeterminacy between democracy and absolutism” and noted that such zones give rise to what he calls “bare life,” whereby individuals are effectively stripped of legal status and left vulnerable to unchecked power. Agamben extended Schmitt’s theory by arguing that suspending law creates a peculiar limbo—a “no-man’s land” where legal norms exist in name only, where such exceptions not only neutralize legal protections but also lead to long-term conditions where the normal rights of individuals are systematically undermined. He further observed that measures implemented during a state of exception, though not always formally established as laws, come to wield the same force as law, rapidly blurring the line between constitutional governance and authoritarian rule.

Diverse Interpretations

Multiple scholars and frameworks have further shaped our understanding of the state of exception, each highlighting different facets of this controversial concept. For example:

• Controlled Deviation and Accountability:
  Scholars such as Oren Gross and Fionnuala Ní Aoláin propose a model where, under extreme circumstances, government actions may temporarily exceed legal boundaries. However, these extra-legal measures must be accompanied by transparent accountability. Once the crisis passes, a clear return to normal legal procedures is essential to prevent the abuse of exceptional powers.

• Comparative National Practices and Historical Caution:
  Kim Lane Scheppele emphasizes the varied national responses shaped by history. European systems, scarred by past authoritarian abuses, tend to maintain stringent limits on emergency powers, often leaning on international human rights standards, whereas other countries, notably the United States, have historically embraced a broader executive discretion during emergencies.

• International Law and the Rule of Law:
  International frameworks, as seen in documents like the International Covenant on Civil and Political Rights (ICCPR), approach state of exception as a legally confined mechanism. Here, any suspension of rights is strictly regulated, temporary, and subject to oversight, reflecting a global insistence on balancing national emergency measures with the protection of fundamental rights.

The concept of the state of exception has evolved significantly from its origins in ancient Rome to its manifestations in contemporary governance. In the Roman Republic, mechanisms like the appointment of a temporary dictator and the declaration of justitium (also spelled iustitium) allowed for the suspension of normal legal processes during crises, with the expectation of a return to regular order once the emergency subsided. During the French Revolution, the état de siège (state of siege) was introduced, enabling the military to assume control in times of unrest, further institutionalizing the suspension of civil liberties during emergencies. The 20th century witnessed a more pronounced and, at times, permanent application of emergency powers, notably in Weimar Germany, where Article 48 of the Weimar Constitution was exploited to establish authoritarian rule under the guise of legality. Similarly, in Fascist Italy (between 1922 and 1943), and other colonial administrations, emergency measures became deliberate tools for consolidating power and suppressing dissent.​

In contemporary times, the state of exception has become increasingly normalized within democratic frameworks. Post-9/11 security measures, such as the USA PATRIOT Act, expanded executive emergency powers and curtailed civil liberties in the name of national security. The COVID-19 pandemic further exemplified this trend, with governments worldwide enacting emergency laws that restricted movement, assembly, and privacy. Philosophers like Agamben have critiqued this shift, arguing that the state of exception has transitioned from a temporary response to crises into a more permanent mode of governance. This evolution reinforces the importance of renewed vigilance in preserving the balance between the execution of state authority and the guardrails provided by adherence to rule of law.​