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What is a State of Exception?

A State of Exception, also known as a State of Emergency, is a legal concept allowing governments to suspend certain functions of the executive, legislative, or judiciary during extraordinary situations such as war, natural disasters, or civil unrest. This temporary suspension is meant to restore order and protect the public. For instance, during the COVID-19 pandemic, many countries declared states of emergency to implement public health measures swiftly.

While a State of Exception can be crucial for dealing with crises, it's a double-edged sword. According to the International Review of the Red Cross, there's a delicate balance between maintaining public safety and protecting individual freedoms. Misuse can lead to human rights violations and unchecked governmental power. Therefore, transparency, oversight, and adherence to legal limits are essential to ensure that such measures are justified, proportionate, and temporary.

R. Kimball
R. Kimball

A state of exception is a process by which the government allows the rule of law to be dismissed in the name of a specific cause or issue. Historically, these types of states required a specific declaration by the government in order to override the rule of law. Certain governments have given their executive officer the right to suspend the rule of law explicitly, while others have over time allowed the practice to continue without express permission.

Many people have studied this suspension of the rule of law. Carl Schmitt, a German jurist, documented this right as part of modern government. Schmitt did not believe that a specific declaration was required for the modern executive officer to implement a state of exception. He believed that crisis and emergency were the normal environment rather than an exception. Any government action that did not go through the full legal process was one that he believed the executive officer was permitted to implement based upon a constant state of exception.

The Third Reich of Nazi Germany might be viewed as a state of exception.
The Third Reich of Nazi Germany might be viewed as a state of exception.

A state of exception places the executive officer or branch of government implementing such a state into a position of power much greater than that granted by the laws of a given country. The officer wields power as he or she sees fit. Individuals no longer have the specific rights granted them by the organizing documents of their country. The officer states that these individual rights are suspended in the best interest of the country.

During this time, knowledge, information, and power are used outside the rule of law. This makes this particular state more a matter of politics than of law. Since one particular person or branch of government is ruling, authority is based upon that person’s politics and not on the rules of law set forth in a given country. An individual’s right to resist the ruling politics is extremely limited in a state of exception.

Definition of a state of exception and the limits around it is very difficult. The entire Third Reich of Nazi Germany has been declared a state of exception by author Giorgio Agamben. Modern and historical governments have used states of exception in the face of civil war or acts of terror. These states of exception allow such governments to create new government agencies or branches that may or may not dissolve upon the termination of the state of exception.

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    • The Third Reich of Nazi Germany might be viewed as a state of exception.
      By: Recuerdos de Pandora
      The Third Reich of Nazi Germany might be viewed as a state of exception.