Potential Without Exception: Emergency Powers after Agamben and Schmitt

• In Event: States of Exception

Abstract

This paper attempts to elaborate a new framework for theorizing ‘potentiality’ in relation to the use of emergency powers. I begin with a critical commentary on the work of Giorgio Agamben, particularly his efforts to make sense of the seemingly unending and intensifying deployment of emergency powers. Part of the thrust of Agamben’s creative reworking of Carl Schmitt’s theory of the state of exception is Agamben’s ominous notion of the kind of potentiality that adheres to this exception: inexhaustible, without meaningful judicial or legislative constraint, and always present wherever there is law. This image of potentiality makes possible his interpretation of all emergency powers as harboring the kernel of a (possibly) total suspension of law and corresponding unrestrained exposure to state violence. In elaborating another way of thinking through the kind of potentiality that is relevant for emergency powers, I build on the considerable legal studies and political theory literature contesting the adequacy of the state of exception paradigm. Legal scholars and political theorists including Kim Lane Scheppele, Nomi Claire Lazar, and Bonnie Honig raise trenchant criticisms that Agamben and Schmitt’s concept covers over an inherent multiplicity of agents involved in activating emergency powers and the attendant political possibilities for challenging these powers. Starting from these critiques, the second half of this paper theorizes the potential of emergency powers with an emphasis on two key features. First, the decisions on activating emergency powers are dispersed across multiple actors operating in a network of channels delegating emergency authority. Second, this network of emergency powers presents a complex terrain of contestation available to political actors, from courts to social movements, to challenge the activation and continuation of emergency measures. The range of possibilities for deploying emergency powers ought to account for the interplay of these two features, particularly as the use of emergency powers shifts over time and in response to different genres of emergency. An upshot of this reframing of emergency powers’ potential is a renewed focus on democratic theories of resistance to shape the trajectories of emergency politics, even if the forms this resistance can take vary widely in the political goals they pursue. I conclude by taking up Gilles Deleuze’s notion of ‘actualization’ to conceive of this recalibrated relation between potential and activated emergency powers.

Author

• Conor Bean, Appalachian State University