A state of exception (German : Ausnahmezustand) is a concept introduced in the 1920s by the German philosopher and jurist Carl Schmitt, similar to a state of emergency (martial law) but based in the sovereign's ability to transcend the rule of law in the name of the public good.
The idea that a state may need to deal with unforeseen and critical problems is ancient; for instance, the Republican Roman concept of the dictatorship allowed a single person to take extraordinary measures, under strict controls. Renaissance thinkers such as Machiavelli and Jean Bodin also discussed the problem. However, while monarchy implies elements of unaccountability and extralegal powers, modern republican constitutions attempt to remove these factors, raising the question of how to deal with such emergencies.
Before the twentieth century, constitutions did not define a state of emergency in great detail. For instance, the Constitution of the United States allows the suspension of habeas corpus, but only with the agreement of Congress; the executive does not have this power itself. The French Constitution of 1848 stated that a law should be passed defining a state of exception, but did not itself define one. Given the difficult circumstances of post-World War One Germany, it is understandable that the Weimar Constitution included Article 48, allowing emergency powers; however, these were never legally defined. [1]
Schmitt introduced the concept of “state of emergency” in his 1921 essay On Dictatorship, influenced by what he saw as the weakness of the Weimar Constitution and the necessity of a strong ruler. In his later essay Political Theology he defined political sovereignty as, essentially, the ability to ignore the law, and that this was necessary given the unforeseeable nature of emergencies. "In Schmitt's terms," Masha Gessen wrote in Surviving Autocracy (2020), when an emergency "shakes up the accepted order of things...the sovereign steps forward and institutes new, extralegal rules." [2]
This concept is developed in Giorgio Agamben's book State of Exception (2005) [3] and Achille Mbembe's Necropolitics (2019). [4] [5] Agamben investigates how the state of exception can become extended, for instance how the United States treated prisoners captured during the "war on terror", and Mbembe describes how the state of exception can be used to reduce people to precarity and justify violence and killing.
It can be either grounded upon autonomous sources of law (like international treaties) or featured as external to the juridical order. [6]
An example from Nazi Germany is the Reichstag Fire (the arson against the German parliament) which led to President von Hindenburg's Reichstag Fire Decree following Hitler's advice. This decree indefinitely suspended most of the Weimar Republic’s civil liberties, including habeas corpus, freedom of expression, freedom of the press, freedom of association, and the right to public assembly. A month later, after the government had used these powers to arrest Communist and Social Democrat members, the Reichstag passed the Enabling Act, with the legal assistance of Schmitt, allowing Hitler to rule without the Reichstag’s consent. Although couched as a temporary measure, the state of exception remained in place until Hitler’s defeat in 1945, allowing him to rule under what amounted to continuous martial law.
The consequences of entering a state of exception may unroll slowly. "Even the original Reichstag Fire was not the Reichstag Fire of our imagination—a singular event that changed the course of history once and for all," Gessen wrote, pointing out that the Second World War did not begin for another six years after the Reichstag burned. [2]
The Nazi term Gleichschaltung or "coordination" was the process of Nazification by which Adolf Hitler — leader of the Nazi Party in Germany — successively established a system of totalitarian control and coordination over all aspects of German society "from the economy and trade associations to the media, culture and education". Although the Weimar Constitution remained nominally in effect until Germany's surrender following World War II, near total Nazification had been secured by the 1935 resolutions approved during the Nuremberg Rally, when the symbols of the Nazi Party and the state were fused and German Jews were deprived of their citizenship. The tenets of Gleichschaltung also applied to territories occupied by the Nazis.
The Weimar Republic, officially known as the German Reich, was a historical period of Germany from 9 November 1918 to 23 March 1933, during which it was a constitutional federal republic for the first time in history; hence it is also referred to, and unofficially proclaimed itself, as the German Republic. The period's informal name is derived from the city of Weimar, which hosted the constituent assembly that established its government. In English, the republic was usually simply called "Germany", with "Weimar Republic" not commonly used until the 1930s.
Rule by decree is a style of governance allowing quick, unchallenged promulgation of law by a single person or group of people, usually without legislative approval. While intended to allow rapid responses to a crisis, rule by decree is easily abused and is often a key feature of dictatorships.
The Reichstag Fire Decree is the common name of the Decree of the Reich President for the Protection of People and State issued by German President Paul von Hindenburg on the advice of Chancellor Adolf Hitler on 28 February 1933 in immediate response to the Reichstag fire. The decree nullified many of the key civil liberties of German citizens. With the Nazis in powerful positions in the German government, the decree was used as the legal basis for the imprisonment of anyone considered to be opponents of the Nazis, and to suppress publications not considered "friendly" to the Nazi cause. The decree is considered by historians as one of the key steps in the establishment of a one-party Nazi state in Germany.
The Enabling Act of 1933, officially titled Gesetz zur Behebung der Not von Volk und Reich, was a law that gave the German Cabinet – most importantly, the Chancellor – the power to make and enforce laws without the involvement of the Reichstag or Weimar President Paul von Hindenburg, leading to the rise of Nazi Germany. Critically, the Enabling Act allowed the Chancellor to bypass the system of checks and balances in the government.
The Constitution of the German Reich, usually known as the Weimar Constitution, was the constitution that governed Germany during the Weimar Republic era (1919–1933). The constitution declared Germany to be a democratic parliamentary republic with a legislature elected under proportional representation. Universal suffrage was established, with a minimum voting age of 20. The constitution technically remained in effect throughout the Nazi era from 1933 to 1945 as well as during the Allied occupation of Germany from 1945 to 1949, though practically it had been repealed by the Enabling Act of 1933 and thus its various provisions and protections went unenforced for the duration of Nazi rule, and after World War II, the power of the Allied Control Council and four occupying powers once again stood above the provisions of the constitution.
Giorgio Agamben is an Italian philosopher best known for his work investigating the concepts of the state of exception, form-of-life and homo sacer. The concept of biopolitics informs many of his writings.
Carl Schmitt was a German jurist, political theorist, geopolitician and prominent member of the Nazi Party.
The President of the Reich was the German head of state under the Weimar constitution, which was officially in force from 1919 to 1945. In English he was usually simply referred to as the President of Germany.
In the political history of Germany, the Führerprinzip was the basis of executive authority in the Government of Nazi Germany (1933–1945), which meant that the word of the Führer is above all written law, and that government policies, decisions, and offices all work towards the realisation of the will of the Führer. In practise, the Führerprinzip was the dictatorship of the leader to dictate the ideology and policies of a political party; therefore, such a personal dictatorship is a basic characteristic of fascism.
An enabling act is a piece of legislation by which a legislative body grants an entity which depends on it for the delegation of the legislative body's power to take certain actions. For example, enabling acts often establish government agencies to carry out specific government policies in a modern nation. The effects of enabling acts from different times and places vary widely.
Article 48 of the constitution of the Weimar Republic of Germany (1919–1933) allowed the Reich president, under certain circumstances, to take emergency measures without the prior consent of the Reichstag. This power came to be understood to include the promulgation of emergency decrees. It was used frequently by Reich President Friedrich Ebert of the Social Democratic Party to deal with both political unrest and economic emergencies. Later, under President Paul von Hindenburg and the presidential cabinets, Article 48 was called on more and more often to bypass a politically fractured parliament and to rule without its consent. After the Nazi Party's rise to power in the early 1930s, the law allowed Chancellor Adolf Hitler, with decrees issued by Hindenburg, to create a totalitarian dictatorship by seemingly legal means.
Federal elections were held in Germany on 5 March 1933, after the Nazi seizure of power on 30 January 1933 and just six days after the Reichstag fire. The election saw Nazi stormtroopers unleash a widespread campaign of violence against the Communist Party (KPD), left-wingers, trade unionists, the Social Democratic Party, and the Centre Party. They were the last multi-party elections in a united Germany until 1990.
The chancellor of Germany, officially the federal chancellor of the Federal Republic of Germany, is the head of the federal government of Germany, and the commander-in-chief of the German Armed Forces during wartime. The chancellor is the chief executive of the Federal Cabinet and heads the executive branch. The chancellor is elected by the Bundestag on the proposal of the federal president and without debate.
The Reichstag of the Weimar Republic (1919–1933) was the lower house of Germany's parliament; the upper house was the Reichsrat, which represented the states. The Reichstag convened for the first time on 24 June 1920, taking over from the Weimar National Assembly, which had served as an interim parliament following the collapse of the German Empire in November 1918.
The Reichstag, officially the Greater German Reichstag after 1938, was the national parliament of Nazi Germany from 1933 to 1945. Following the Nazi seizure of power and the enactment of the Enabling Act of 1933, it functioned purely as a rubber stamp for the actions of Adolf Hitler's dictatorship — always by unanimous consent — and as a forum to listen to Hitler's speeches. In this purely ceremonial role, the Reichstag convened only 20 times, the last on 26 April 1942. The President of the Reichstag throughout this period was Hermann Göring.
Necropolitics is a sociopolitical theory of the use of social and political power to dictate how some people may live and how some must die. The deployment of necropolitics creates what Achille Mbembe calls deathworlds, or "new and unique forms of social existence in which vast populations are subjected to living conditions that confer upon them the status of the living dead." Mbembe, author of On the Postcolony, was the first scholar to explore the term in depth in his 2003 article, and later, his 2019 book of the same name. Mbembe identifies racism as a prime driver of necropolitics, stating that racialized people's lives are systemically cheapened and habituated to loss.
From 1933 to 1945, the Nazi regime ruled Germany and, at times, controlled almost all of Europe. During this time, Nazi Germany shifted from the post-World War I society which characterized the Weimar Republic and introduced an ideology of "biological racism" into the country's legal and justicial systems. The shift from the traditional legal system to the Nazis' ideological mission enabled all of the subsequent acts of the Hitler regime to be performed legally. For this to succeed, the normative judicial system needed to be reworked; judges, lawyers and other civil servants acclimatized themselves to the new Nazi laws and personnel. As of 2021, a few laws from the Nazi era still remain codified in German law.
Who Must Die in Rwanda's Genocide?: The State of Exception Realized is a 2015 non-fiction book by American politician Kyrsten Sinema. Published by Lexington Books, the book is a qualitative study on the history of human rights violations in Rwanda, culminating with the Rwandan genocide of 1994. The book's text is derived from Sinema's 2012 doctoral thesis, Who Must Die: The State of Exception in Rwanda's Genocide, presented to fulfill her Doctor of Philosophy (PhD) in justice studies from Arizona State University.
The Law Against the Formation of Parties, sometimes translated as the Law Against the Founding of New Parties, was a measure enacted by the government of Nazi Germany on 14 July 1933 that established the Nazi Party (NSDAP) as the only legal political party in Germany.