Paperroom

Conference 2017.


On this page, you can find the abstracts and draft papers of the conference contributions. Please note: draft papers are for conference use only and may not be cited elsewhere. Comments welcome.

Last update November 6, 2017, 18:20 CET.


Stefan Voigt (University of Hamburg)
Terror and States of Emergency

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Anna-Bettina Kaiser (Humboldt University Berlin)
Suspension of the Legal Order in the State of Exception

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. On the contrary, the ancient Latin phrase necessitas non habet legem, coined by Seneca the Elder, already expresses a similar idea. In 20th century 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 1922 who popularized the idea: “To decide about the state of exception means to decide on the suspension of the whole constitution” (translation by A.-B. K.).

From that point onward, the mechanism of suspension has always been associated with the state of exception. Numerous authors such as Ernst-Wolfgang Böckenförde, Giorgio Agamben, Otto Depenheuer and Matthias Lemke still conceive the figure of suspension as an integral part of the legal institute of 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 idea of suspension come up after 1789? And why was it so important for Schmitt’s thinking?What was the influence of Søren Kierkegaard on the concept? 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?

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Ewa Atanassow (Bard College Berlin) / Ira Katznelson (Columbia University)
Governing emergency? State of Exception in the Anglo-American Liberal Tradition

How should constitutional democracies navigate current problems of security? Presently, the globe’s established liberal democracies face almost no threat to their borders. 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. 1) The first aims to show that, from its founding moments, political liberalism confronted central puzzles associated with the state of exception, and elaborated a significant repertoire of ideas, impulses, and institutions that remain instructive. 2) Against the backdrop of this lineage, whose central figures include John Locke and Alexander Hamilton, in part two we examine the work of interwar and post-war twentieth century American political scientists Carl Friedrich, his Harvard doctoral student Frederick Watkins, and Clinton Rossiter who forged a liberal response to Carl Schmitt. Individually and as a coherent group, these scholars sought to place emergency responses within the ambit of the restraining qualities of law. They thus revisited and deepened a genuinely liberal approach to emergency. 3) Sketching the historical and political developments since the mid-twentieth century, we conclude by assessing the advantages and limitations of these liberal resources for dealing with contemporary security dilemmas.

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, each 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.

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Sabine Mischner (University of Freiburg)
The Temporalities of Exception

In my paper, I argue that one should take a closer look at the temporalities the ‘state of exception’. In the rhetoric legitimizing a state 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 system of the USA, others do offer general insights into the functioning of states of exception.

Periodization: The Temporal Argument. States of exceptions are oftentimes introduced by suggesting a clear periodization, consisting of three stages: before – during – after. Explaining why the Lincoln administration had deliberately suspended and actively ignored several constitutional protections of imprisoned civilians, officials claimed that these protections “in truth, are all peace provisions of the Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and then the safety of the people becomes the supreme law”. In short, 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 a state cannot simply return to the status quo ante. – (1) Enduring Legacies. 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(s), be 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 of the president. Thus, the legacies of the state of exception endured far longer than the war lasted. The same is true for the US and other countries in the First and Second World Wars. Therefore, the periodization mentioned above does not hold, since the ‘afterwards’ was immensely shaped by the ‘during’ und thus could never have been the same as ‘before’. – (2) Setting Precedents. Similarly, every exceptional action taken sets a precedent for later states of exception. In the case of the American Civil War, the US Supreme Court rulings largely sanctioned Lincoln’s extraordinary measures. 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. – (3) Continuing War Powers. Finally, it should be noted that according to a common interpretation of the American constitution, the president’s war powers extend way beyond the actual emergency, the end of which, again, courts would not assess. In sum, the temporal 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.

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Tobias Schottdorf (Leuphana University)
Law, Democracy and the State of Emergency. A Theory Centered Analysis of the Legal State in Time of Exception

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:

(1) How do democracy and law behave towards each other in times of crisis?
(2) Is the state of exception necessary for any democracy or is it dispensable?

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.

(1) The civil (“bürgerliche”) state composed as a liberal democracy is based upon rights. Therefore we call it a “legal state” or “Rechtsstaat” in the German tradition, as characterized by Habermas. Thus, it is the law which determines our contemporary form of democracy. In addition, the maintenance of the state (which is also represented in the idea of “Staatsräson”) in this shape can only be secured by maintaining the law. The suspension of democratic procedures is always designated in the way our system of rights works because this system has to cover a non-law based “gap” (see Luhmann, Frankenberg, Menke). 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.

(2) In terms of democracy, the state of exception is dispensable, but it is not for this system of rights which is determining the present shape of democracy. 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 the 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:

(3) In this last part of my presentation I provide a clarification for these more or less abstract theoreti-cal findings. Based on the debate between the German theorists of law, Carl Schmitt and Otto Kirchheimer, which took part in the early 1930s 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: legitimacy and legality (see Preuß). 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.

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Fabian Lemmes (University of Bochum)
Exceptional Laws in Times of Exceptional Threat? Anarchist Terrorism and Anti-anarchist Repression in France and Italy in the 1890s

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. Mostly committed by anarchists as part of ‘propaganda by the deed’, these acts aimed to intimidate governments and social elites, and mobilise the working classes for the social revolution by showing them the fragility of the social and political order. They were always a challenge to governments and state institutions, for these had to prove their ability to preserve public peace, 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: many countries passed special laws that increased executive power, criminalised certain political views (anarchist and other), limited political and personal freedoms (of assembly and speech in particular), restricted the freedom of the press, and/or introduced special jurisdiction This was namely the case of France and Italy, where anarchist activism and a series of attentats led in the 1890s to a wave of repression taking recourse to special laws, in Italy also with the ‘state of siege’ being declared in some places. In both countries, the introduction and application of special laws gave rise to controversial debates about their commensurability, consistency with constitutional, liberal and/or democratic principles, as well as benefit and dangers for the political order.

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). How were the special laws justified, how did the proponents and opponents of their introduction/application try to make their arguments plausible? To which extent was the situation framed, or explicitly referred to, as ‘state of emergency’ or ‘state of exception’? The paper will focus on the years 1893-94 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 1880s to the turn of the century, and ask about the longer-term effects of the special laws.

As for the criterion of ‘established democracy’: the French Third Republic was the only big parliamentary democracy in Europe at that time. After the struggle between republicans and monarchist in the 1870s and the boulangiste danger of the late 1880s being adverted, the democratic regime can be considered as established. The Italian nation-state founded in 1861 was a constitutional monarchy and a liberal oligarchy rather than democratic; but from the 1880s onwards it underwent processes of de facto parlamentarisation (with governments asking the Chamber of Deputies for vote 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 intended 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.

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Thomas Blanck (University of Cologne)
A revolutionary state of exception: Munich, 1918/19

While both the idea and the practice of a contemporary suspension of constitutional rights can be traced back to antiquity, the term “state of exception” (Ausnahmezustand) was coined only in the first half of the 20th century, most famously by Carl Schmitt. At the same time, it is often overlooked that his well-known definition of sovereignty must be linked to a concrete historical situation, namely the socialist revolution in Munich in 1918/19. Schmitt experienced the revolutionary collapse of the German Empire firsthand: it was this experience, I will argue, that shaped his decisionistic state theory.

Taking the link between Schmitt’s biography and political theory as a point of departure, this paper has two closely intertwined aims: concentrating on the aftermath of the First World War in Munich, it investigates the relation between the development of the concept of “exceptional” political situations on the one hand and its application as a tool of (re)establishing public order on the other hand. In doing so, it connects the abstract level of Begriffsgeschichte with the history of the actual implementation of emergency measures. In other words, the central question is: how did exceptional thinking and exceptional acting influence each other in a period of violent and revolutionary transformation in an urban context?

The paper will focus on Munich in the years 1918 and 1919. After the end of World War I, the former capital of the Bavarian Kingdom became the arena for a revolution that in many ways was far more radical and had longer lasting effects than elsewhere in Germany. On November 7, 1918, socialist Kurt Eisner proclaimed the republic and all over Bavaria, worker’s and soldier’s councils were founded, king Ludwig III abdicated. Eisner’s assassination in February 1919 strengthened the radical forces of the revolutionary movement, eventually leading to a bloody conflict between Munich’s Red Army and troops sent by the German government in Berlin. Thus, Bavaria found itself in a twofold state of exception: on the one hand, the monarchical government’s authority had collapsed within hours, leaving the revolutionary leaders in front of a constitutional vacuum that had to be filled with decrees, orders, and rules. 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. Special attention will be paid to the question of how the transition from the pre-war to the post-war political system influenced the government’s possibility of applying emergency measures as guaranteed by the respective constitution: did the post-war authorities rely on methods established by the former system? On which juridical sources were the 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. Following Alf Lüdtke and Michael Wild, the state of exception can be understood as an „arena of possibilities, and of self-empowerments”. The state, thus, is “a moment of governance that is not ordered by the constitution rather than being constantly created by manifold actors, neither ‘top-down’ nor ‘bottom-up’.” [1] Consequently, one must ask whether there exists a distinction between the abstract legal order and the actual political situation within a revolutionary context at all. Or should one rather argue that once exceptional measures have been applied, there is no such thing as a normalcy anymore?

[1] Alf Lüdtke and Michael Wildt, Einleitung, in: id. (eds.), Staats-Gewalt. Ausnahmezustand und Sicherheitsregimes. His-torische Perspektiven (=Göttinger Gespräche zur Geschichtswissenschaft, vol. 27), Göttingen 2008, pp. 7-38, here p. 23 (translation TB).

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Hanno Balz (Johns Hopkins University)
The undeclared State of Emergency during the ‘German Autumn’ 1977

When Carl Schmitt wrote about the „emergency“ („Ernstfall“) as being constitutive for the ultimate dualism of friend and foe, he outlined a theory of the state of emergency. Such emergency was repeatedly being invoked during the debate on terrorism in West Germany in the 1970s.

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 said, the terrorism-debate was the struggle over the state of the nation, and so the discoursive, political and moral boundaries were heavily disputed.

Both sides of the confrontation were also engaging in specific performances/performative acts that adressed a wider public – it was all about a demonstration of power. More than that, it showed that Carl Schmitt’s notion of political decisionism comes to bear on the reality of the states’ dealing with terrorism as well as with the terrorists’ “propaganda of the deed”.

Often the reactions from the West German executive authority were called an “undeclared state of emergency”. However, in political discourse of that time “Ausnahmezustand” became a frequently used term that implied a level of wishful thinking and therefore had a mobilizing quality. In recent publications I have called the effects and affects of Moral Panics during the German Autumn a “felt/perceived state of Emergency” (gefühlter Ausnahmezustand).

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 1977 and how this was referred to on both sides of the confrontation.

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Anne-Marlen Engler (Humboldt University Berlin)
German Refugee Shelters

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]: they have been registered by the German authorities. Furthermore, in theory, they have access to human rights as well as German law. However, reports about detentions in mass shelters which last for months or abuses by the security personnel seem to confirm a situation which the American academic Ayten Gündoğdu has called “Rightlesness in an Age of Rights“. My research project wants to identify to what degree the refugees find themselves in “a bureaucratic situation similar to Kafkas castle” [3] and whether their access to law is hindered by arbitrary actions of the private shelter companies. 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 legal regulation and a de facto lawlessness.

In the Colloquium “Ausnahmezustand. Eine Bestandsaufnahme”, I will present the first empirical results of my research project. In a pilot study, I have started to collect data with the help of structured interviews and field reports. The research field is an emergency shelter in a former airport in Berlin Neukölln which accommodates 1450 refugees at the moment. Orienting towards my research question, I interviewed four different status groups (social 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.

[1] Agamben, Ausnahmezustand, S. 62.

[2] Luhmann, Legitmität durch Verfahren, S.94f.

[3] Gündoğdu, Rightlessness in an Age of Rights, S. 203.

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Maureen T. Duffy (University of Calgary)
State of Emergency in Canada and the U.S.

No abstract available.

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Elisa Bertolini (Bocconi University Milan)
Democracy and the State of Exception: The Italian Experience

The Italian experience offers some interesting profiles when dealing with the state of exception and emergency situations. The 1948 Constitution – as her predecessor, the Albertine Statute of 1848 – does not provide for any emergency section. However, she provides 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 120).

The fact that the Albertine Statute did not provided for an emergency section does not have to lead to the conclusion that an emergency situation (or, to use a formulation closer to the French doctrine, a stato d’assedio, état de siège) has ever been declared. The riots in Milan in 1898 or the earthquake in Messina in 1908 witnessed the enforcement of the wartime criminal military code, showing that the Italian legal system accepted the possibility of a legitimate use of extraordinary powers – even against the law – in order to preserve the State and of the legal and social order. The very same aim led King Victor Emmanuel III to appoint Mussolini as head of the government in the aftermath of the March on Rome in 1922.

In the democratic history, other situations happened that required the resort to some sort of emergency power, namely the passing of the legislative decree no. 625/1979, against the left-wing terrorism (the so-called Brigate Rosse, Red Brigades) – strengthening the police powers and compressing suspect rights – and the law no. 225/1992 establishing the Protezione Civile (Civil Defence). Under this second law, the government can pass civil defence orders to handle emergencies. Here the intent seemed more to provide for procedures and structures able to confront emergencies and to make the developments predictable rather than just to assign extraordinary powers.

Besides these ad hoc interventions, the Constitution provides for the instrument of the law decree that the government can enact in situations of extreme necessity and urgency (no further specification on the meaning of the two words is given). The abuse of this instrument made by the governments until the mid-1990s – due mainly to the weaknesses of the parliamentary executive innate in the extremely fragmented party system, the proportional representation and the subsequent coalition governments – shifted the balance from a parliamentary democracy to a so to speak governmental democracy. The long-awaited intervention of the Constitutional Court with the decision no. 360/1996 finally sanctioned this practice as unconstitutional, as in violation of both the prerogatives of Parliament – as the main law-making body – and the certainty of law.

Beside the abuse of the law decree, a more recent practice has been to resort to emergency instruments even in situations not properly of emergency – since not of unpredictable nature – but rather just difficult to handle, such as the 2006 Winter Olympics in Turin or the 2015 Expo in Milan (just to mention a few). In such circumstances the connection to the extraordinary character of the situation is lacking; nevertheless, the government exercises all the same emergency powers.

Furthermore, the present-day economic crisis has provided for further remarks on the twisting of the Italian form of government (and of the form of State, according to some scholars) in situations of emergency, namely with respect to the role of the President of the Republic and of the Constitutional Court.

The active engagement of President Napolitano in the last crisis of government (starting from the Berlusconi’s one in 2011) and as a strong advisor of governments seem to have proved right Esposito’s theory according to which – since the president is given the same powers as the monarch in the constitutional monarchy – it is up to him to actively intervene in situations of emergency. The Constitutional Court too rises some concerns, with respect mainly to a certain number of decisions marking a straightforward intervention in the competence of Parliament and government, when balancing spending review and rights’ protection.

It is convenient to consider further this twisting in the balance of powers in the light of the separation of powers and on the qualification of the Italian present-day situation as within the constitutional legal order of within the emergency.

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Myriam Feinberg (University of Haifa)
Terrorism – The Permanent Exception. A Comparison of France and Israel

This paper aims to examine the consequences on democracy of ‘permanent emergencies’ linked to terrorism, through the examples and comparison of France and Israel’s states of emergency. France has already extended the state of emergency, originally declared after the November 2015 attacks, for over a year. Israel has been under a state of emergency since its creation in 1948. In both cases, the existence of a state of emergency allows the government to adopt a number of measures which wouldn’t be legal otherwise.

Terrorism is often treated as an exceptional crime which requires an exceptional response, including the adoption of states of emergency. The changing nature of the terrorist threat requires a flexible legal framework, but there are a number of issues with creating exceptional regimes to deal with it, especially if these exceptional regimes become permanent. Exceptionalism might justify extreme rules and a wider range of measures because usual rules are considered insufficient. Yet, the desire for a symbolic message and swift action against terrorism should not cheapen the strength of existing legal measures, which run the risk of piling up without being actually implemented. In fact, we witness an inflation of terrorism legislation often adopted hurriedly and without proper implementation tools or sufficient budget. In turn, these emergency measures tend to settle in the long run as people get used to a new normal, leading to a slippery slope of what is acceptable. For instance, the new terrorism law in Israel enshrines in regular legislation measures that were, on principle, only applicable under the state of emergency.

In addition, emergency fosters extremes and often targets specific groups of people that can then become ostracized. In turn, this can create a climate of fear and resentment towards those suspected of terrorism, as well as discriminatory measures. States will tend to focus on the external and exceptional threat, instead of addressing long-term and domestic issues, which contribute to terrorism, such as radicalisation and integration.

Finally, under states of emergencies, the executive often adopts the primary role in setting the norms, which puts aside the review role of the judiciary. Yet, both in France and Israel, courts have increasingly become involved in ensuring the protection of fundamental freedoms and the separation of powers under states of emergencies, two intrinsic components of democracies. The paper will examine these three particular issues in the two states, and draw conclusions on the impact of exceptional counterterrorism measures on democracy and the rule of law.

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Ece Göztepe (Bilkent University Ankara)
What does the Permanency of the Exception Mean? The Question of Constituent Power in Emergency Regimes

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Jonas Heller (Goethe University Frankfurt)
Materia reipublicae: Democracy, state of exception, and the dialectics of demos and population

My contribution deals with the question how a critique of the state of exception within democracies should proceed. A critique of the state of exception, I argue, has to reflect its historic and systematic connection to democracy. This claim is not new: In the Crisis of Parliamentary Democracy (1923) Carl Schmitt stated that dictatorship and democracy are not antitheses. In Homo Sacer (1995) and State of Exception (2003) Giorgio Agamben emphasized that the modern state of exception arose from the democraticrevolutionary tradition and therefore constitutes a threshold between democracy and absolutism.

In my paper, in contrast, I want to show that the connection between democracy and the state of exception does not result from a fusion of both but from a dialectic reversal of one into the other. This means – different from Schmitt’s and Agamben’s views – that before claiming the connection of democracy and state of exception, we have to recognize their opposition. In a first step, I will hence outline this opposition, which is an opposition of political freedom and political unfreedom. Democracy, understood as the rule of the demos, realizes political freedom since it seeks the identity of those who rule and those who are ruled. In a constitutional democracy (»Rechtsstaat«), this identity is facilitated by the participation in the legislative process, i.e. the enactment of laws. In the state of exception, however, the rule of law is repressed in favor of a governance by decree. By eliminating the identity of ruling and beingruled, the state of exception denies the idea of democratic political freedom. In a second step, I will show to what extent the political unfreedom of the state of exception has the same foundation as democratic political freedom. Political freedom, in a constitutional democracy, is premised on legal equality: In order to equally participate, one has to be recognized as an equal subject. This recognition is ensured by the status of the legal person (persona, »Rechtsperson«). But it is not the purpose of the status of the legal person to establish political freedom. Instead, I want to show that, from a historical perspective, the status of the legal person was mainly granted in the interest of the early modern state: in order to count the people as population and to collect taxes. The status of the legal person served to produce a population as the material of the state (›materia reipublicae‹). In contrast to the constitution of the demos, the production of the population uses the idea of equality not as an end, but as a means – a means which potentially eliminates equality as an end. I argue that the state of exception is the modern phenomenon par excellence, in which the status of the legal person becomes the axis of a dialectic turn from the production of equality to the production of inequality, from the production of political freedom to the production of political unfreedom, from democracy to authoritarianism. In the state of exception the fundamental status of the legal person is – juridically –never denied, but it becomes the place where individual rights are acknowledged, in order to legally curtail them and to produce inequality within law. Against this background, the critique of the state of exception cannot (as Agamben suggests) proceed as a critique of democracy in general. It must instead be formulated as a critique of the juridical concept of ›legal person‹ , insofar as this concept opposes the idea of legal equality and democratic political freedom. I will outline this critique in a third and last step.

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Jan Christoph Suntrup (University of Bonn)
The Symbolic Politics of the State of Emergency: Images and Performances

This paper/presentation has the ambition to fill a gap in the growing discourse and analysis of contemporary and historical instances of the state of exception: The recent applications of this instrument (since 9/11) have put the competitive relation between law and politics on the agenda, the constitutional frame of a basically extra-legal measure, the fear that states of exception could become a novel “paradigm of government” (Giorgio Agamben) and the normalisation of the state of exception in penal law within the paradigms of security and prevention (Günter Frankenberg). Despite this rich and well-developed debate, the symbolic side of the suspension of normality has not been scrutinised by philosophers, legal scholars and social scientist so far. When the call for papers asks, with good reasons, how this suspension has been made plausible, it does not suffice to look at discourses and narratives (which are nevertheless very important), but to analyse the symbolic embedding and symbolic performance of the state of exception. Cultural studies have contributed a lot to the insight that symbols and rituals are essential for the empirical validity of law and democracy, which calls for a similar analysis of the practices that might endanger them.

The symbolic politics I want to look at does not only include evidently symbolic measures (such as the very controversial proposition in France to expatriate terrorists), but also images and sceneries: The declaration of the state of exception does have very manifest consequences, but is also a highly symbolic act that tries to fan feelings of solidarity and community by using flags and national icons or referring to crucial moments of the nation’s history. Moreover, the will to demonstrate sovereignty and decisiveness does not only come to the fore in political decrees, but it is represented and performed, e.g. when George W. Bush was keen to present himself as the commander-in-chief during the so-called “war on terror”.

Thus, the analysis of the phenomenon of the state of exception could profit from the cultural studies perspective, which I try to make plausible on a theoretical level as well as by analysing several examples (the selection of which depends on the results of my research I will conduct within the next months as part of a larger personal project on various dimensions of the state of exception).

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