PURPLE PATCH: Necessity has no law —Giorgio Agamben

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PURPLE PATCH: Necessity has no law —Giorgio Agamben

A recurrent opinion posits the concept of necessity as the foundation of the state of exception. According to a tenaciously repeated Latin adage (a history of the adagia’s strategic function in legal literature has yet to be written), necessitas legem non habet, “necessity has no law,” which is interpreted in two opposing ways: “necessity does not recognise any law” and “necessity creates its own law” (necessite fait loi). In both cases, the theory of the state of exception is wholly reduced to the theory of the status necessitatis, so that a judgment concerning the existence of the latter resolves the question concerning the legitimacy of the former. Therefore, any discussion of the structure and meaning of the state of exception first requires an analysis of the legal concept of necessity.

The principle according to which necessitas legem non habet was formulated in Gratian’s Decretum. It appears there two times: first in the gloss and then in the text. The gloss (which refers to a passage in which Gratian limits himself to stating generically that “many things are done against the rule out of necessity or for whatever other cause” appears to attribute to necessity the power to render the illicit licit (Si propter necessitatem aliquid fit, illud licite fit.: quia quad non est licitum in lege, necessitas facitlicitum. Item necessitas legem non habet [If something is done out of necessity, it is done licitly, since what is not licit in law necessity makes licit. Likewise necessity has no law]).

But the sense in which this should be taken is made clearer by a later passage in Gratian’s text concerning the celebration of the mass. After having stated that the sacrifice must be offered on the altar or in a consecrated place, Gratian adds, “It is preferable not to sing or listen to the mass than to celebrate it in places where it should not be celebrated, unless it happens because of a supreme necessity, for necessity has no law” (nisi pro summa necessitate contingat, quoniam necessitas legem non habet). More than rendering the illicit licit, necessity acts here to justify a single, specific case of transgression by means of an exception.

This is clear in the way Thomas in the Summa theologica develops and comments on this principle precisely in relation to the sovereign’s power to grant dispensations from the law (Prima secundae, q. 96, art. 6: utrum ei qui subditur legi, liceat praeter verba legis agere [whether one who is subject to law may act against the letter of the law]):

If observing the letter of the law does not entail an immediate danger that must be dealt with at once, it is not in the power of any man to interpret what is of use or of harm to the city; this can be done only by the sovereign who, in a case of this sort, has the authority to grant dispensations from the law. If there is, however, a sudden danger, regarding which there is no time for recourse to a higher authority, the very necessity carries a dispensation with it, for necessity is not subject to the law [ipsa necessitas dispensationem habetannexam, quia necessitas non subditur legit.

Here, the theory of necessity is none other than a theory of the exception (dispensatio) by virtue of which a particular case is released from the obligation to observe the law. Necessity is not a source of law, nor does it properly suspend the law; it merely releases a particular case from the literal application of the norm: “He who acts beyond the letter of the law in a case of necessity does not judge by the law itself but judges by the particular case, in which he sees that the letter of the law is not to be observed [non iudicat de ipsa lege, sed iudicat de casu singulari, in quo videt verba legis observanda non esse]:’ The ultimate ground of the exception here is not necessity but the principle according to which “every law is ordained for the common well-being of men, and only for this does it have the force and reason of law [vim et rationem legis]; if it fails in this regard, it has no capacity to bind [virtutem obligandi non habet]’ In the case of necessity, the vis obligandi of the law fails, because in this case the goal of salus hominum is lacking. What is at issue here is clearly not a status or situation of the juridical order as such (the state of exception or necessity); rather, in each instance it is a question of a particular case in which the vis and ratio of the law find no application.

It is only with the moderns that the state of necessity tends to be included within the juridical order and to appear as a true and proper “state” of the law. The principle according to which necessity defines a unique situation in which the law loses its vis obligandi (this is the sense of the adage necessitas legem non habet) is reversed, becoming the principle according to which necessity constitutes, so to speak, the ultimate ground and very source of the law. This is true not only for those writers who sought in this way to justify the national interests of one state against another (as in the formulaNot kennt kein Gebot [necessity knows no law], used by the Prussian Chancellor Bethmann-Hollweg and taken up again in Josef Kohler’s book of that title, but also for those jurists, from Jellinek to Duguit, who see necessity as the foundation of the validity of decrees having force of law issued by the executive in the state of exception.

Giorgio Agamben is professor of aesthetics at the University of Verona. This excerpt has been taken from his book titled, State of Exception