Originally published in Critical Sense: A Journal of Political and Cultural Theory, 12 (2004). Full paper.

Carl Schmitt was the great theorist of the state of exception, of the constitutive role extra-legal power played in the theory and practice of politics. But the idea of extra-legality that Schmitt discusses is not a timeless one, as his most famous aphorism makes clear: “sovereign is he who decides on the exception.” The state of exception founds sovereign power and, as Schmitt’s contrast with Roman law in Die Diktatur makes clear, he recognizes that modern sovereignty is a historically specific political arrangement. Furthermore, it is an arrangement which may be nearing the end of its history. Although nation states show no sign of disappearing, processes of economic and political globalization are redistributing the powers traditionally held by states and altering the way in which they rule. So we might expect to see Schmitt rendered irrelevant, the state of exception consigned to history. Instead, the opposite is true; contemporary global politics is characterized by continual appeals to exceptionality. This is most starkly true of politics after 9/11, but it would be a mistake to think that the terrorist attacks caused this appeal to the exception. The opposition of exception to law was visible in, for example, humanitarian intervention in Kosovo or economic intervention in response to Latin American debt crises. So, as the state of exception was integral to Schmitt’s analysis of the sovereign state, new forms of exceptionality may help us understand changing post-state forms of politics.

Giorgio Agamben puts forward an alternative account of the state of exception, based on Walter Benjamin’s suggestion that a state of emergency functions in a kind of suspended time. This idea of a new state of exception arising with globalization, and supporting a different ontology than that of the sovereign state, is similar to the concept of empire put forward by Michael Hardt and Antonio Negri. They argue that states with particular locations and a particular temporal justification are being replaced by an empire that is unconstrained in time or space. In what follows, I will largely work within the schema of Hardt and Negri, attempting to show how alternative theoretical perspectives (concentrating on the state of exception) and historical analogies (drawing on the early-modern Spanish, rather than the ancient Roman, empire) can clarify some of their ideas and emphasize their practical relevance to contemporary politics.