State of Exception by Giorgio Agamben

Author:Giorgio Agamben
Language: eng
Format: epub, pdf
Publisher: University of Chicago Press

In his description of this state of exception, Mommsen’s acumen manifests itself precisely at the point where it shows its limits. He observes that the power in question absolutely exceeds the constitutional rights of the magistrates and cannot be examined from a juridico-formal point of view. He writes,

If already the mention of the tribunes of the people and the provincial governors, who lack imperium or hold it only nominally,prohibits us from considering this appeal [the one contained in the senatus consultum ultimum] as merely a call to the magistrates to energetically exercise their constitutional rights, this appears even more clearly on the occasion when, after the senatus consultum provoked by Hannibal’s offensive, all the ex-dictators, ex-consuls, and ex-censors assumed imperium again and retained it until the withdrawal of the enemy. As the call to the censors also shows, this is not a case of an exceptional prorogation of a previously held office, which, moreover, the Senate could not have ordered in this form. Rather, these senatus consult a cannot be judged from a juridico-formal standpoint: it is necessity that produces law, and by declaring a state of exception [Notstand], the Senate, as the highest advisory authority of the community, adds only the counsel that the now permitted and necessary personal defenses be expediently organized. (1969, 695–96)

Here Mommsen recalls the case of a private citizen, Scipio Nasica, who, when confronted with the consul’s refusal to act against Tiberius Gracchus in execution of a senatus consultum ultimum, exclaims, “qui rem publicam salvam esse vult, me sequatur! [He who wishes that the state be safe, let him follow me!]” and kills Tiberius Gracchus.

The imperium of these commanders in the state of exception [Not standsfeldherren] stands beside that of the consuls more or less as the imperium of the praetor or proconsul stands beside consular imperium. . . . The power conferred here is the customary one of a commander, and it makes no difference whether it is directed against an enemy who lays siege to Rome or against a citizen who rebels. . . . Moreover, this authority of command [Commando], however it may manifest itself,is still less formulated than the analogous power in the state of necessity [Notstandscommando] in a zone militiae, and, like it,disappears on its own with the cessation of the danger. (Mommsen 1969, 1: 694–96)

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