Democracy Today.indb - Universidade do Minho

For Agamben to accept this conception of law and power is to
give a chance to indeterminacy and arbitrariness and, moreover, he
correctly emphasizes Schmitt’s account as aporetic:
The specific contribution of Schmitt’s theory is precisely to have made
such an articulation between state of exception and juridical order possible.
It is a paradoxical articulation, for what must be inscribed within
the law is something that is essentially exterior to it, that is, nothing less
than the suspension of the juridical order itself (hence the aporetical
formulation: “In a juridical sense, an order still exists… even if it is not a
juridical order ”) [9] .
Even if one could find a bit strange to say how this aporia could
be a contribution [10] , Agamben point is quite clear: one cannot justify
as law something that is completely against it. We could say, pushing
further Dworkin’s metaphor, that here, at the same time, there is and
there is not a doughnut or, saying it in another way, that the hole in
the doughnut is the doughnut itself.
To highlight this aporetic “juridicization” of exception is for
Agamben essential, and it is what marks his conceptual move as
completely opposite with respect to Schmitt’s one. If for Schmitt this
aporia is somehow hidden (exception is something that he politically
endorses), for Agamben exception and its aporetic status culminate
in an obscene paradigm that characterize the modern way of understanding
the articulation between law and power. Within a state of
exception the norm is in force, is in potentia, but it is not applied, is
not in actus; conversely, acts that do not have the value of law acquire
the force of law. It is because of this contradictory situation posed by
the juridicization of exception that for Agamben our times are ultima
facie governed by fiction:
239
STATE OF EXCEPTION AND
IMPASSE DYNAMICS
Emanuele Bottazzi
The state of exception is an anomic space in which what is a stake is a force
of law without law (which should therefore be written: force of law). Such
9
Agamben (2005): p. 33.
10
In fact Agamben in the Italian text uses the word prestazione that points more correctly to
the less positive semantic field of ‘service’ or ‘performance’, see Agamben (2003): p. 45.