The European Journal of International Law Vol. 17 no.3 © EJIL 2006; all rights reserved
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Legalizing Lawlessness: On Giorgio Agamben’s State of Exception Stephen Humphreys*
Agamben, Giorgio. State of Exception. Chicago: University of Chicago Press, 2005. Pp. 104. ISBN: 0-226-00924-6
Abstract This review essay examines in some detail Giorgio Agamben’s recent State of Exception, his third in a series of books that reconstruct sovereignty using a range of interdisciplinary and critical tools. Engaging with Agamben’s text on its own terms – rather than focusing on the potential deficiencies of an approach that eschews standard doctrinal and empirical research – the essay seeks to distil a set of conceptual and analogical perspectives that might help interpret the significance of the present rise of emergency regimes. The essay concludes by exploring whether Agamben’s work might enrich legal inquiry, despite its often alien tenor, by reviewing some recent cases in the UK and the US involving exceptional measures.
For all the talk of empire, new security paradigms and executive privilege, there have been remarkably few theoretical efforts to tease out the deep structures underlying the shifting currents of our evolving legal-political culture. State of Exception, Giorgio Agamben’s third volume in a series also comprising his 1998 Homo Sacer and 1995 Remnants of Auschwitz provides a glimpse of how such a theory might look. This is a timely and sustained inquiry into the now near ubiquitous state of emergency (or of exception, siege, necessity, or martial law), reaching back through medieval to Roman juridical conceptions of sovereign authority. Agamben identifies the state of exception as a modern institution, with roots in the French revolution, ascendancy *
Sidney Sussex College, University of Cambridge. My thanks to the Hauser Global Law School of New York University, with which I was affiliated as a visiting researcher in 2005–2006 when the present essay was written. Email: sh407@cam.ac.uk.
........................................................................................................................................................ EJIL (2006), Vol. 17 No. 3, 677–687 doi: 10.1093/ejil/chl020