Abstract 5/15: 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.

Abstract 4/15: 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.

Abstract 3/15: 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.

Konferenz: Normsetzung im Notstand Außerordentliche Gesetzgebungsbefugnisse im 19. und 20. Jahrhundert

Am 16. und 17. Oktober findet an der Universität Wien eine internationale, verfassungsrechtlich akzentuierte Tagung zum Thema „Normsetzung im Notstand. Außerordentliche Gesetzgebungsbefugnisse im 19. und 20. Jahrhundert“ statt. Der zeitliche Fokus der Beiträge liegt auf dem 19. und 20. Jahrhundert, regionaler Schwerpunkt ist Österreich, wobei auch Fallstudien u.a. aus Deutschland, Italien, Polen Ungarn und Brasilien präsentiert werden. Das gesamte Programm findet sich hier, Auskünfte erteilt  Kamila Maria Staudigl-Ciechowicz.

Konferenzsprache ist Deutsch.

Conference: From Dictatorship to State of Exception

On October 16-17, 2017, the Collège International de Philosophie in Paris will hold a conference on „De la dictature à l’état d’exception. Institutions, droit, théories“ („From dictatorship to state of exception. Institutions, Law, Theories“). Organized by Marie Goupy (CIPh) and Yann Rivière (EHESS), the conference aims at a historical and philosophical reconstruction of the idea of exception. This will include the institutional varieties of emergency powers, as well as the language of the exception. A detailed program can be found here, online inscription is required.

The conference will be held in French.

Abstract 2/15: 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.

Presentation in Haifa

On December 14, 2017, Matthias Lemke will give a talk on „The état d’urgence In France. Governance Before, During And After A National Emergency, 2015–2017” at the Minerva Center for the Rule of Law under Extreme Conditions at the University of Haifa. The presentation is part of the symposium on „Institutional Structures for Governance Before-During-After a National Emergency“, organized by Ido Rosenzweig. A full draft paper will be available by December 1st, 2017. For more information on the conference, please visit the website of the Minerva Center.

Abstract 1/15: Anna-Bettina Kaiser (HU 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?

#StatEx2017 – Abstracts

Conference 2017.
Conference 2017.

From this day until the beginning of the #StatEx2017-Conference on Monday, November 13, 2017, the already available abstracts of the conference contributions will be published here on a weekly basis.

If you want to get a global picture of the contributions, please visit the paperroom of the conference. Once a first draft of a paper is available, you’ll find a short notice here and on social media. All draft versions shall be ready for download by November 1, 2017.