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.
Im Rahmen der diesjährigen Tagung zum Ausnahmezustand zeigen wir den Dokumentarfilm “Endstation Bataclan” von Alexander Smoltzcyk und Maurice Weiss. Der Film läuft am 13.11.2017 um 20:00 Uhr in den Räumen unseres Partners, des Goethe Instituts Paris. Alle wichtigen Informationen rund um den Film finden sich hier. Um Anmeldung wird gebeten.
On November 13, 2017, 8 p.m., we will present the documentary “Endstation Bataclan”, produced by Alexander Smoltzcyk and Maurice Weiss. The film is an important part of this year’s conference on state of exception. It will be shown at the site of our conference partner, the Goethe Institute Paris. Further information on the presentation can be found here. Registration is required.
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’.”  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?
 Alf Lüdtke and Michael Wildt, Einleitung, in: id. (eds.), Staats-Gewalt. Ausnahmezustand und Sicherheitsregimes. Historische Perspektiven (=Göttinger Gespräche zur Geschichtswissenschaft, vol. 27), Göttingen 2008, pp. 7-38, here p. 23 (translation TB).
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.
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.
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.
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?
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.