From the Constitutional State to the Security State

FROM THE CONSTITUTIONAL STATE TO THE SECURITY STATE


By Giorgio Agamben


[This article published in April 2016 in Luxemburg 1/2016 is translated from the German on the Internet, http://www.zeitschrift-luxemburg.de.]


What really is at stake in extending the state of emergency in France [1] can only be understood when this is set in the context of a radical transformation of our familiar state model. Firstly, the statement of an irresponsible politician that the state of emergency supposedly protects democracy should be rejected. History has shown that the opposite is true. The state of emergency is that arrangement by which totalitarian powers were established in Europe. So the social democratic governments [2] of the Weimar Republic often fell back to the instrument of the state of emergency in the years before Hitler’s assumption of power. Germany had already stopped being a parliamentary democracy before 1933.


Hitler’s first official act after his nomination (to Reich chancellor) was the proclamation of the state of emergency that was never retracted (during the NS rule). If one is amazed at the crimes committed with impunity in Germany by the Nazis, one forgets that these actions were absolutely “legal” because the land was subjected to a state of emergency and basic rights and freedom rights were suspended.


Such a scenario could be repeated in France. A rightwing extremist government can be easily imagined that makes use of a state of emergency to which the socialist government accustomed citizens. A fast and permanent damage of the public institutions can occur in a country under a permanent state of emergency where police operations increasingly replace the powers of the judiciary.


KEEPING FEAR ALIVE


This is all the more true when the state of emergency is part of a process where western democracies are changed into something that must be described as a security state. The word security has become a constant element of political discourse. So-called reasons of security (raisons de securite) replace what was earlier called the reason of the state (raison d’ etat). An analysis of this new form of government is overdue. Reflections on a possible definition are important since the security state is neither part of the constitutional state nor what Michel Foucault called the disciplinary society. In the model of the Brit Thomas Hobbes that has greatly influenced our political philosophy; the social contract with which power is transferred to the sovereign presupposes mutual fear and the war of all against all. The state is the institution that ends this fear. This pattern is reversed in the security state. The state is permanently grounded on fear and must keep fear alive at any cost because it has its essential function and legitimacy from it.


Preventing catastrophes and famines was not uppermost when the word security first appeared in the political discourse in France with the Physiocrat governments before the French Revolution. [3] Rather these were allowed and were made themes of profitable government actions.


Security does not aim at preventing terrorist acts (which is extremely difficult if not impossible since security measures are only effective afterwards and terrorism by its nature strikes again and again in different ways). Instead a new relation between persons is produced that consists of a generalized and boundless monitoring. That is the reason for institutions that allow a complete control of the population’s electronic and communication data including the complete copying of all computer data. [4]


The first risk consists in drifting into a state where terrorism and the security state enter in a symbiotic relationship. When the state needs fear to gain legitimacy, it has to provoke terror in the extreme case or at least not hinder its genesis. One only needs to consider the foreign policy of some countries that fuel terrorism which then must fought internally. When weapons are sold to these states, they become known as terrorist organizations.


A second point is the change of the political status of citizens and the people who were considered bearers of sovereignty. In the security state, an unstoppable tendency aims at an increasing de-politization of citizens. Their participation in political life is reduced more and more to inclusion in public opinion polls on the eve of elections. This tendency was all the more alarming when it was cast in theoretical form by Nazi jurists. They defined the people as a politically powerless element whose protection and growth had to be guaranteed by the state.


According to these lawyers, there is only a single method for helping this politically powerless element have a political effect: by referring to common origin and race distinguishing them from foreigners and enemies. The Nazi state and the contemporary security state should not be equated. When citizens are de-politicized, they can only be freed from their passivity and mobilized by the fear of a foreign enemy who is not merely external to them (this is true for Jews in Germany and for Muslims in France today).



UNCERTAINTY AND TERROR


On this background, the disgraceful bills on the decheance de nationalite (expatriation) for persons with double citizenship must be considered. The 1926 fascist law on rescinding Italian citizenship for “unworthy citizens” and the Nazi laws on expatriating the Jews should be recalled. [5]


A third point that may not be underrated involves the criteria according to which truth is produced today in the public sphere. A radical shift has occurred here…


The fact of a crime can only be officially ascertained in a constitutional state with the help of a legal procedure… Sometimes rumors and gossip seem more important than serious findings. The security state has an interest in keeping people in uncertainty as to what threatens them. Uncertainty and terror go hand in hand. [6] The security state has to ensure their security.


The legal text of November 20, 2015 that established the present state of emergency in France is marked by vagueness. [7] Special arrangements are in force for “any person whose conduct represents a threat for public security and order.” This arbitrariness could refer to any person at any moment. In a security state, vague targeted formulations become the norm even though they are always criticized by lawyers as violations of the principle of legal certainty.


DE-POLITIZATION OF CITIZENS


The same vagueness and the same ambiguities mark statements of politicians who say France is “at war against terrorism.” The talk of a “war on terrorism” is a contradiction in itself because the state of war includes identifying a combative enemy. In contrast, the enemy must remain oblique in the security state so whoever can be defined this way – internally or externally – doesn’t matter.


These three characteristics of the security state – maintaining a generalized state of anxiety, de-politization of citizens and renunciation on any legal certainty – should make us think. The security state to which we are moving does the opposite of what it promises. While security means the absence of worry (Latin sine cura – without worry – as the root for the French word securite), the security state foments permanent fear and terror. The security state is a police state that increases the police’s freedom of decision by suspending the power of the judiciary. The state of emergency that becomes daily routine and acts as the sovereign more and more becomes the normal case.

The security state breaks out of familiar politics to move to an indeterminate zone where public and private whose borders are hard to define become ever more blurred – through the increasing de-politization of citizens. This article first appeared on December 23, 2015 in the Le Monde journal.


NOTES

1 Inzwischen wurde der Ausnahmezustand erneut bis Ende Mai 2016 verlängert (Anm. d. Ü.).
2 Agamben meint hier eher die Brüning- und die nachfolgenden Regierungen in den Jahren von 1930 bis Anfang 1933, die jedoch zur bürgerlichen Rechten zählten. Zwar hatte die SPD den sogenannten Blutmai am 1. Mai 1929 in Berlin zu verantworten, aber die Notverordnungskabinette waren keine SPDRegierungen (Anm. d. Ü.).
3 Es handelt sich um eine ökonomische Schule, die um 1768 entstand und von 1774 bis 1781 den Generalkontrolleur der Finanzen des Königs stellte (Anm. d. Ü).
4 Diese Praxis war bei den über 3 000 Hausdurchsuchungen außerhalb richterlicher Kontrolle, die auf der Grundlage des Ausnahmezustandsgesetzes seit Mitte November 2015 durchgeführt wurden, zunächst gang und gäbe, wurde jedoch als einzige Maßnahme am 19. Februar 2016 vom französischen Verfassungsgericht in der bisherigen Form für unzulässig erklärt (Anm. d. Ü.).
5 Die französische Regierung plant, die bereits bisher in rechtlich engen Grenzen mögliche Ausbürgerung von DoppelstaatbürgerInnen auf weitere Personenkreise auszudehnen. Voraussetzung dafür wäre eine Verurteilung wegen »Verbrechen oder Vergehen, die fundamentale Interessen der Nation verletzen«. Der Gesetzentwurf dazu wurde in erster Lesung am 10. Februar 2016 in der Nationalversammlung angenommen. Er bedarf jedoch einer noch ausstehenden Verfassungsänderung, um rechtskräftig zu werden (Anm. d. Ü.).
6 Hier auch im ursprünglichen Wortsinne von Schrecken gemeint (Anm.d.Ü.).
7 Gemeint ist das Gesetz, mit dem das französische Parlament den Ausnahmezustand für die Periode vom 26. November 2015 bis zum 26. Februar 2016 erstmals verlängert hat (Anm. d. Ü.).
8 So bedarf es nach geltendem Ausnahmezustand keinerlei richterlichen Kontrolle mehr etwa im Vorfeld von Hausdurchsuchungen oder bei der Verhängung von Hausarrest (Anm. d. Ü.).