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Thoughts on the state of exception from a juridical and anthropological perspective

In a popular and everyday kind of use the term state of exception –Ausnahmezustand- is characterized by extraordinary measures taken after an incident such as a terror attack, an environmental disaster or other events that shatter social structures and norms that are taken to be granted within a society. It is a status that allows measures be taken that within the “normal” status of a society are not to be taken while, at the same time, everyday kind of rules and norms are suspended. On a theoretical level, theories of exception follow different approaches and focus on different aspects. Italian philosopher and jurist Giorgio Agamben for instance describes a theory of exception, which focuses on the juridical aspect of what fallows after an unexpected incident. Others tend to focus on the theatrical aspect of a social drama and the interlink between the social drama as such and cultural performances.

In his study concerned with the social drama Scottish social und cultural anthropologist Victor Turner draws concrete analogies to a classical Aristotelian theatrical approach. He, on the one hand, uses theatrical terms to explain which states a society goes through in order to find a way to deal with certain incidents. On the other hand he lays a focus on theatrical ways of dealing with such incidents in terms of rituals or public events like memorials. In his conception, the social drama functions as an “experiential matrix” with a huge impact on different forms of cultural and social representations, on performative and narrative units.

Turner carves out four stages a society and social structures undergo on their way to cope with an incident that involves a rupture of any kind with social norms. The breach, this can be any kind of a public rupture with social norms and rules, is followed by a crisis, which involves the formation of different groups in conflict with each other and makes thereby the framework of the social structure of a society visible. What follows is redress, for instance in terms of juridical actions or public rituals that result in two options: either reintegration or recognition of the schism.

What Turner tries to develop through his research as an Anthropologist is a theory of the social drama, which is deeply connected to cultural performances. What he emphasizes here is the connection of social change and forms of artistic representations. This connection can be seen in two ways: on the one hand, the social drama, as Turner puts it, is connected to the Greek tragedies in terms of their structure –certain events following one another within a closed structure that has a beginning and an end. On the other hand, artistic work and social dramas can be seen as influencing each other on the level of their content. Turner describes, with reference to Richard Schechner, stories and anecdotes told in different societies as generalizations of certain social structures as well as he does see cultural performances and narrative forms as providing a form and a language for social processes.

His analysis concerns both the whole social drama in terms of its structure and content in connection to artistic forms of presentation as well as parts of the social drama. He turns his attention on the third phase of the social drama, the redressive phase, to emphasize how cultural performances taking place in that phase are connected to an increase of the reflexivity of a society.

Not only does Turner locate the examination of a social drama within cultural performances or rituals in the third phase of his theory of the configuration of the social drama; he also places the application of juridical structures in this very phase. “The redressive phase […] is a liminal time, set apart from the ongoing business of quotidian life, when an interpretation (Bedeutung) is constructed to give the appearance of sense and order to the events leading up to and constituting the crisis.” Within this phase, legal structures can serve in order to bring back a certain kind of order to shattered structures: “[…] the narrative component in ritual and legal action attempts to rearticulate opposing values and goals in a meaningful structure, the plot of which makes cultural sense.” The status of the ritual, which can serve as a form of processing within the third phase, becomes one that, by generating a narrative, contrasts indeterminacy with form. By abandoning quotidian structures within a ritual, the possibility of new ones comes into being and therefore also the possibility of different structures. In Turners version these “subjunctive moods” seem to be mostly connected to advancement, innovation and positive change.

Giorgio Agamben, who is involved with a theory on –what he calls- the “state of exception”, deals with phenomena that can in Turners terms be located within the third phase of the social drama. Agamben focuses on the state of exception connected to juridical structures. In his analysis, the abandonment of existing juridical and social structures within a state of exception does not exactly lead to an enhancement of society. On the contrary he emphasizes the restrictive and antidemocratic influences a state of exception has or can have on democratic values and structures of democratic states. In Agambens approach the state of exception is a paradoxical one that is not established in legal terms and within it the juridical order is suspended. Nevertheless the state of exception is still connected to juridical structures and must be differentiated from chaos and anarchy, it is a state that is not free from order. „The state of exception is not a special kind of law (like the law of war); rather, insofar as it is a suspension of the juridical order itself, it defines law’s threshold or limit concept.“

In these approaches that Agamben develops dealing with the theory of German jurist and philosopher Carl Schmitt, he focuses on the figure of the sovereign as the one who can decide on the state of exception. Decision becomes an important factor in his theory: “Without a concrete decision the law is dead.” Taking this element together with the element of norm as those that are inherent to juridical structures and turn law into a discipline that needs to be interpreted and applied make it possible to think about the state of exception as being connected to juridical structures even if the norm is precisely what is suspended in a state of exception. The sovereign is the one who “guarantees its anchorage to the juridical order."

Agambens thinking about juridical structures and the law is in general characterized by ambivalence and distrust and by the fundamental assumption, that law will always be characterized by the impossibility to do justice to life. The fact that in some cases law and the decision as its fundamental element can be used in a subversive way precisely because it needs to be interpreted and applied is not being paid attention to.

Both of those theories describe different ways of dealing with events that shatter social norms and take different focuses by doing so. Nevertheless they both emphasize the term “threshold” to describe a situation, in which “normal” social or juridical norms are suspended - in the case of the state of exception in order to safe those norms even if that, as Agamben shows, is not necessarily the case, or, in the case of Turners theory, by going through a liminal phase “[...] set apart from the ongoing business of quotidian life […]” in order to construct and bring back meaning and order.


by: Saija Kontio

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