In State of Exception (the second volume in the series entitled Homo Sacer), Giorgio Agamben analyzes the way in which sovereign governments avail themselves of a states of emergency to claim extra-legal powers. As might be all to familiar to us in this historical moment, this is done in the name of protecting the public interest.

Agamben develops Foucault's concept of biopolitics alongside Hannah Arendt's work on totalitarianism. Arendt provides Agamben with the historical–phenomenological analysis of totalitarianism as a regime that reduces human beings to mere biological life, destroying their political capacity (bios), a precursor to the idea of biopolitics. Biopolitics marks the shift from sovereign power to kill its subjects, to managing the life of whole populations, specifically by controlling the health, reproduction and productivity of groups. This gives rise to racist policies and eugenics as the purview of the state — apartheid, genocides, but also regulating women’s reproductive bodies and backing the power of private property in workplaces.

For Agamben, Foucauldian biopolitics explains how modern states can strip certain lives down to what he calls ‘bare life.” Agamben’s term homo sacer designates that individual stripped of human rights, existing beyond or outside the boundaries of humanity, life that fails to qualify as "human." It operated in Nazi concentration camps during World War II and recurred at Guantanamo Bay after 9/11, where the U.S. government claimed that captured Taliban fighters fell outside the protections international law guarantees to prisoners of war. He was writing his books during this period of the second invasion of Iraq post 9/11. The pattern has continued to evolve.

The list of examples is long: — The Roman practice of appointing dictators during crises, which Agamben traces as the historical precedent for modern states of exception. Christian Nationalist see the Roman Empire as their origin and touchstone, and apparently spend a lot of time thinking about it. — Martial law declarations that suspend habeas corpus, like Lincoln did during the Civil War. — The Enabling Act of 1933 in Weimar Germany, which granted Hitler dictatorial powers under emergency provisions. — Nazi concentration camps during World War II, where the Third Reich suspended legal protections for designated populations. — French colonial governance in Algeria, where emergency powers normalized torture and extrajudicial detention. — Apartheid South Africa where states of emergency (1980s) suspended rights for Black populations in townships/Bantustans, creating “camps” of bare life via pass laws, detentions without trial, and normalized violence—reducing non-whites to homo sacer outside legal protections. — Palestinian “apartheid” (Israeli occupation), the division of Gaza/West Bank as permanent exception zones with administrative detention, blockades, and caloric control rendering Palestinians killable bare life, denied sovereignty while under total control. — The USA Patriot Act following 9/11, expanding surveillance and detention powers beyond traditional legal constraints. — Guantanamo Bay detention facility post-9/11, where the U.S. government denied Geneva Convention protections to captured Taliban fighters, and authorized “enhanced interrogation techniques” (i.e., torture) through legal memos that redefined the boundaries of permissible state violence. — Financial emergency measures like bank bailouts and capital controls that redistribute resources and restrict economic freedoms outside normal legislative processes. — Mass surveillance infrastructure normalized after 9/11, where emergency powers have become permanent features of governance through programs like PRISM and expansive data collection by intelligence agencies. — COVID-19 pandemic responses that granted governments emergency powers over movement, assembly, and commerce. — AI and algorithmic governance systems that operate outside traditional legal frameworks, making consequential decisions about individuals without due process or meaningful appeal. — Border enforcement regimes that suspend due process rights for migrants and asylum seekers, creating zones where normal legal protections do not apply. — Anti-terrorism laws deployed against domestic protesters and activists, expanding definitions of extremism and terrorism to justify preemptive detention and surveillance.

For Agamben, the “state of exception” is not an aberration from the rule of law, but its structural “outside,” a necessary condition that ultimately guarantees the power of the modern state. In other words, the protection the state promises and the violence it inflicts emanate from the same gesture. The law itself produces zones of lawlessness (a camp, a prison, a secured zone) where rights are suspended and life is reduced to sheer biological survival. Often black holes into which most have little to no visibility, we are conditioned to look away and not acknowledge the existence of these spaces alongside civil society.

A state of exception is not merely a response to danger, but how crisis is managed politically: ruling classes and states learn to “not let a good crisis go to waste.” The moment of fear allows for the expansion of executive power, the weakening of oversight, the erosion of civil liberties, and the redistribution of resources in ways that would be impossible in “normal” times. As Naomi Klein elaborates in Disaster Capitalism — building on her own analysis of the Chicago/Friedman school of neoliberalism, and coups and the IMF “shock therapy” — crises create a period of collective disorientation that is then used to ram through radical economic restructuring (“shock therapy”) that would be rejected under normal conditions.

Given that these states of exception are built into our systems of law, I reckon we have two options: 1) The political question is not whether states of exception will be invoked, but it becomes who gets to invoke it, against whom, and to what end. Shall we enter into these debates? Bargain for the lives of our loved ones over others? We could attempt to “democratize” these decisions, return to a state or lawfulness. But that appeal to restore “the rule of law” — for example, to imagine the police or national guard will serve to keep ICE in line — misunderstands the problem. The normal is just the exception in waiting. Violence (in this case state violence) is always an option for the state to affirm it’s absolute power. (Notice our United States hasn’t failed, for all the talk of a new civil war.) It's not failing, but what we are seeing is the unfolding of an internal logic.

For Agamben, if bare life is the necessary remainder, then the true task is 2) to imagine forms of political existence that do not depend on the exclusion of some life as the price of protecting other life. Agamben gestures toward this in his later work, pointing to forms of life that cannot be separated from their form, but at this point his thinking becomes abstract, messianic, and utopian.

The only real option is questioning the logic by which the wellbeing of some are secured at the expense of the reduction of others to bare life. It is a logic by which identity and unity is created through exclusion, and whether this is an inevitable fact of human psychology, or if we could possibly evolve towards other logics and create better political economies.

WORKS CITED

Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. Translated by Daniel Heller-Roazen, Stanford UP, 1998.​

---. State of Exception. Translated by Kevin Attell, U of Chicago P, 2005.​

Arendt, Hannah. The Origins of Totalitarianism. Harcourt, 1951.​

Klein, Naomi. The Shock Doctrine: The Rise of Disaster Capitalism. Metropolitan Books, 2007.​

You can see the original write-up here: https://www.goodreads.com/review/show/1043668575