Start with Schmitt below as Agamben references his reading of the Jurist. https://backstagepolitics.com/carl-schmitt-and-the-state-of-exception/
In contrast with the state of emergency, the state of exception is the sovereign’s ability to transcend the rule of law in the name of the public good. It responds to the need to face successfully a critical situation in which the political community is in danger. In these cases, the government can take decisive action by resorting to dictatorial procedures.
The state of exception frees the executive from any legal restraints to its power that would usually apply. The term exceptional is of paramount importance here because it refers to the way Schmitt understands sovereignty. I spoke about this in a previous episode. If you want further information check that video. In Schmitt’s view, the exception rests on the capacity to initiate the state of exception. This extraordinary situation suspends right, that is, the legal order that prevails in a normal situation.
The state of exception belongs to the core-concept of sovereignty in Schmitt’s thought. In this regard, he stressed the importance of the supreme authority to make the fundamental political decision, that is, the distinction of the enemy. In the state of the exception, the authority exercises that sovereign power to decide who the enemy is. In this way, it resorts to outright violence without the usual legal limitations. This means that bureaucracy and legal procedures cease to hinder the sovereign’s action, which exercises its power directly. Sovereignty is, therefore, the power to proclaim the exception in which right doesn’t apply. Schmitt himself defined sovereignty as follows: “Sovereign is he who decides on the exception.” By exception, Schmitt means the precise moment for stepping outside the rule of law in the public interest.
The two faces of power
Every investigation into politics is tainted by a preliminary terminological ambiguity, which condemns those who undertake it to misunderstanding. Both the passage from the third book of Politics in which Aristotle, at the time of «investigating the politeiai , to establish their number and qualities», peremptorily states: «since politeia and politeuma mean the same thing and the politeuma is the supreme power of the cities ( to kyrion ton poleon), it is necessary that the supreme power be the one or the few or the many" (1279 a 25-26). The current translations read: «since constitution and government mean the same thing and the government is the sovereign power of the cities…». Whether this translation is more or less correct, in any case it brings to light what could be defined as the amphiboly of the perhaps fundamental concept of our political tradition, which presents itself now as a "constitution" now as a "government". In a sort of vertiginous contraction, the two concepts are identified and at the same time distinct and according to Aristotle this ambiguity defines the kyrion , sovereignty.
That the amphiboly is not episodic is as much as a reading of the Athenaion politeia , which we translateConstitution of the Athenians , punctually confirms. Describing Pericles' "demagogy" (27,1), Aristotle writes that in it demotikoteran eti synebe genesthai ten politeian , which the translators render with "the constitution became more democratic"; immediately afterwards we read that the many apasan ten politeian mallon agein eis hautous "centralised the whole government in their hands" (evidently, translating "the whole constitution", as well as the terminological coherence would have wanted, did not seem possible). The ambiguity is confirmed by the dictionaries, where politeia is rendered both with «constitution of the state» and with «government, administration».
Whether it is designated by the hendiadys "constitution/government" or by that "state/administration", the fundamental concept of Western politics is a double concept, a sort of two-faced Janus, which now shows the austere and solemn face of the institution now the more shady and informal one of administrative practice, without it being possible to identify or separate them.
In the 1932 essay on Legality and legitimacy, Carl Schmitt distinguishes four types of state. Leaving aside the two intermediate figures of the jurisdictional state, in which the last word belongs to the judge who decides a given legal dispute and the governmental one, which Schmitt identifies with the dictatorship, we are interested here in the two extreme types, the legislative state and the administrative status. In the first, the legislative state or law, "the highest and most decisive expression of the common will" consists of norms having the character of law. "The justification for such a state system rests on the general legality of any exercise of power by the state." Whoever exercises power acts here on the basis of a law or "in the name of the law" and legislative power and executive power, the law and its application are consequently separate.
The type that perhaps not by chance occupies the last place in the list, almost as if the other state forms tend in the last resort to converge towards it, is the administrative state. Here «command and decision do not appear in an authoritative and personal way, but neither can they be reduced to simple applications of superior norms»; rather they take the form of concrete provisions, made from time to time on the basis of the state of affairs with reference to practical purposes or needs. This can also be expressed by saying that in the administrative state "neither men govern, nor do norms count as something superior, but, according to the famous expression, "things govern themselves".
As is fully evident today, but as Schmitt could already deduce in those years from the affirmation of totalitarian states in Europe, the legislative state progressively tends to transform itself into an administrative state. "Our state system is in a phase of transformation and the 'tendency towards the total state' characteristic of the present moment ... appears today typically as a tendency towards the administrative state". While political scientists today seem to have forgotten it, Schmitt unreservedly states as "a generally recognized fact" that an "economic state" cannot function in the form of a parliamentary legislative state and must necessarily transform itself into an administrative state, in which the law gives way to decrees and ordinances.
For those of us who have witnessed the full completion of this process, it is the meaning of this transformation - if it is really a transformation - that it is worth questioning. The idea of transformation implies, in fact, that the two models are formally and temporally distinct. Schmitt knows perfectly well that «in historical reality there are constantly mixtures and combinations» and that legislation, administration and government belong to each state. It is possible, however – and this is our hypothesis – that the admixture is even more intimate and that the legislative state and the administrative state, legislation and administration, constitution and government are essential and inseparable parts of a single system, which is the modern state which we know.
Something like another policy will only be possible starting from the awareness that state and administration, constitution and government are two sides of the same reality, which must be radically questioned. There is no power that can legitimize its exercise with laws, without presupposing an extrajuridical order that founds it, nor can there be a pure administrative practice that claims to remain legal on the basis of decrees issued in view of a necessity. These are, as Schmitt himself suggests, two different ways of making obedience obligatory. As we see clearly today, the truth of both is, in fact, the state of exception. Whether acting in the name of the law or in the name of the administration, ultimately at issue will always be the sovereign exercise of a monopoly on violence. And this is itkyros , the hidden ruler who, in the words of Aristotle, brings together in a system the two visible faces of state power.
https://ko-fi.com/thejournaloflingeringsanity