The normalisation of exception in the biopolitical security dispositif Gonzalo Velasco Arias Introduction to neutralise circumstances that are unforeseen in the ordinary provisions of the law. According to In this article, I attempt to analyse the way in which Italian philosopher Giorgio Agamben (2003), the the world order that resulted from the terrorist state of exception has become a paradigm for gov- attacks of September 11, 2001 ernment. This thesis, which has altered the relationship has greatly engaged current between security and the Gonzalo Velasco Arias is based in the academic reflection, implies Department of Philosophy of the Universi- future. Security entails an dad Autónoma of Madrid and also at the that the obsession with pro- epistemological relation to Universidad Camilo José Cela. He holds a tecting order from any contin- the future, on the basis of PhD in the “Philosophy of History” from gency not envisaged in the which the present is shaped. the same institution and he is a Fellow of the regulatory and criminal codes The radically unprecedented Research Project “Remains of Evil in Post- entails the generalisation of Totalitarian Societies: Responses from nature of the new terrorism Democratic Politics” (FFI2012-31635). He decisions that, in seeking to has called into question the has recently co-edited the book Normalidad protect law and order, lie possibility of ordering the de la crisis/crisis de la normalidad (Madrid outside the law. The dire con- present in relation to knowl- and Buenos Aires: Katz). He was a Visiting sequence is that they end up edge of the future. The terms Researcher at Cornell University in 2010 denying what they sought and, under Professor Roberto Esposito, at of the political have, since the Istituto Italiano di Scienze Umane di to protect. The scope of 2001, been redefined due to a Napoli in 2009. my analysis is the conflict fear and uncertainty that have Email: [email protected], between civil rights and se- modified even the logic of [email protected] curity in the United States, not criminal law. That the con- only because of its obvious temporary preventive state geopolitical relevance, but exercises excessive control over civil society, in also because the idiosyncrasy of US constitutional which security and rights enter into conflict, is a fact logic radically reveals the conflict between the nor- that the social sciences have been dealing with in the mativity of the law and the unpredictability of the past few years. The specificity of my approach in future. Nevertheless, my objective will be to outline this article lies in an understanding of the present the connections between the concrete case of the and of the organising capacity of politics on the United States and the international reality of this basis of the type of epistemological relation that is issue. established with respect to the future. Another approach I shall take into account are My final objective is to try to clarify whether the recent critical security studies, which, despite the contemporary preventive logic responds to a their internal diversity, share a development and an specific need of our times or whether, on the con- application to the present of the research carried out trary, it reveals a structural trait of our political and by Michel Foucault on governmentality and bio- juridical configuration. To this effect, I shall first politics. From this perspective, contingency examine the political–juridical state of exception, a becomes the principal reason of government, an mechanism whereby the law is suspended in order occasion to legislate. ISSJ 205–206 © UNESCO 2013. Published by Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DK, UK and 350 Main Street, Malden, MA 02148, USA. 364 Gonzalo Velasco Arias Through the analysis of these two theoretical the measures aimed at re-establishing the normal approaches, I intend to provide the conceptual conditions for application of the law. The state of tools for a critical understanding of what could exception is thus the acknowledgment by the law perhaps be called the most significant experience of its insufficiency in cases of necessity. However, of our times: the urgent need for security and the it must be noted that necessity is not an absolute impossibility of political contingency. value, but rather one that is relative to that which the law establishes as normal. The normativity of the law involves not only determining the limits for The state of exception: the coexistence, but also establishing acceptable con- certainty of the law in the ditions for its own application. face of uncertainty In that same essay, Schmitt distinguishes between two types of dictatorship, commissarial The political–juridical state of exception has been dictatorship and sovereign dictatorship. The justified throughout history on the basis of the purpose of the former is to re-establish the normal- adage “necessitas non habet legem” (Agamben ity required by the prevailing legal order. The latter, 2003). The state of necessity is that for which there on the other hand, has to do with the employment is no response envisaged in the law; therefore, it of extraordinary powers to establish a new political requires a political action not subject to the law. order. They differ with respect to the decision This prevents the pure fact of necessity from regarding the legitimacy of the anomie resulting becoming a source of law, thus preserving its nor- from suspension of the law: for commissarial dic- mative autonomy. When such an exceptional politi- tatorship, the prevailing order is legitimate and, cal reaction is envisaged in a constitutional code, consequently, the anomie must be suppressed; in the paradox then arises of a legal mechanism that contrast, for sovereign dictatorship, legitimacy includes that which cannot have legal form: the resides in the not yet established order towards state of necessity, emergency, or exception. In this which the exceptional situation tends. Commis- section, I shall focus on this constitutional accom- sarial dictatorship would be subsumed under con- modation of the state of exception by tracing some stituted power while sovereign dictatorship would of its historical institutions, in the light of two represent a constituent power. Nevertheless, both excellent studies on the topic: Dictatorship by of them presuppose the need to institute a legiti- Carl Schmitt, and Constitutional Dictatorship by mate normative order (Huysmans 2006). Clinton L. Rossiter.1 Subsequently, I shall examine Given its recognition of the legitimacy of con- its logical paradoxes in the legislative context of stituted power, commissarial dictatorship is the the United States, not only for the obvious current precedent of the clauses regarding the state of geopolitical reasons, but also because the idiosyn- exception found in the constitutions of liberal politi- crasy of its legislative production and its pre- cal regimes. Both Schmitt and Rossiter trace its cedents in the interpretation of exception make it historical origin back to an institution in republican an especially significant case. Rome, prior to the designation of Caesar as dictator for life in 46 BC. Before that transformation, the Senate granted the title of dictator to an individual The state of exception at the responsible for the execution of a specific mission, boundaries of constituted power within a pre-established period of time, usually six months. During that period, the dictator was not In Dictatorship, Schmitt justifies the juridical subject to ordinary law and had full power over life mechanism of the state of exception through a dis- and death, but he could not modify existing laws or tinction between law and realisation of the law. enact new ones, nor could he amend the republican This distinction implies that the law requires Constitution or reorganise public authority. As certain conditions for its application, which are Rossiter points out, the consuls who elected the considered to be the normal conditions. If these dictator could not perform that role, for purposes of conditions are not met, then, by definition, it would keeping decision and execution separate (Rossiter not be possible to apply a legal mechanism in order 2007, p.25). Sovereignty, therefore, remained with to resolve the problem. On the contrary, it would be the Senate, and the dictator was merely an executor necessary to suspend the law in order to implement of the mission he was charged with. © UNESCO 2013. The normalisation of exception in the biopolitical security dispositif 365 Schmitt identifies Jean Bodin as the main link necessity of liberal systems for their own perpetu- between that ancient institution and modernity. In ation. Hence the reference to the Roman institu- the context of the theoretical legitimisation of abso- tion, to the separation of the decision regarding the lute and perpetual sovereignty, which constitutes state of exception from its execution, and to the the essence of his magnum opus, The Republic restrictions imposed on the constitutional dictator (1576), the commission is the way to allow contin- regarding the modification of existing legislation gency into the legal order. In contrast with the and ordinary institutions. Exceptional measures in official, whose position is for life and whose duties situations of crisis would not then be mere reac- are envisaged by the law, the commissar “is desig- tions to immediate situations. On the contrary, it is nated selon l’occasion and his activity ends upon precisely those situations that make evident the execution of the mission” (Schmitt 1994, p.375). structural dysfunction of the system, the insuffi- The necessity that motivates the conferral of a com- ciency of the law to protect itself. mission links its action to the concrete requirements of the facts and to the instructions given by the conferring party, as opposed to the case of the The dilemma between constitutional official, whose duties are envisaged by the formality control of the arbitrary and of the law, thus allowing him greater discretion.