“The tradition of the oppressed teaches us that the ‘state of emergency’ in which we live is not the exception but the rule. We must attain to a conception of history that is in keeping with this insight. Then we shall clearly realize that it is our task to bring about a real state of emergency, and this will improve our position in the struggle against Fascism.”

Walter Benjamin, On the Concept of History, Walter Benjamin, »Über den Begriff der Geschichte«, in : Illuminationen, Frankfurt a. M. 1977, p. 254. (»On the Concept of History«,https://www.tasc.ac.uk/depart/media/staff/ls/WBenjamin/CONCEPT2.html)

This fragment of the 8th thesis of Benjamin’s politico-philosophical manifesto “On the Concept of History” doesn’t say anything that would be too complex. Benjamin demonstrates that the exaggeration of the emergency that comes from the fascism coexists nicely with the liberal faith in the constant progress towards the better. Talk of emergency complements this faith. If we believe that everything, in principle, is getting better and better, then any crisis or conflict will appear as extraordinary, scandalous to us. We are like the angel of history (a critical, ironic concept, contrary to popular opinion) who flies “progressively” forward, but who looks at the present from the point of view of a better future, thus perceiving the present as a pile of ruins. Fascism plays on this situation by turning trauma into value, by joyfully imposing the state of emergency and by making it a regular state of affairs. But emergency in the fascist sense is not truly exceptional, precisely because it is also regular (i.e. contaminated with liberalism), and thus neither exceptional nor regular.

It is somewhat more difficult to make sense of what Benjamin means by the effective state of emergency – the one that is used without quotation marks. Benjamin explains what he means further on. In the 14 th thesis, he opposes a different kind of history to the liberal model of continuous time. This other kind of history builds on the revolution as the explosion and rupture of historical sequence. “Thus, for Robespierre, the past charged with “now-time” – the past that he extracted out of the historical continuum – aus dem Kontinuum der Geschichtе heraussprengte ”. Here Benjamin uses the same prefix aus- (ex-) that makes up the word “ Ausnahmezustand ”, state of exception or emergency. The gaze of a critic and fighter neither looks out of the future toward the present, nor does it look from the present to the future; instead, it looks out of the “now-time” back into the past. The revolution brakes history and inserts the reprisal of an unaccomplished event of the past into the newly formed, striking hiatus of time. This past is extracted out of the frame of history through repetition. Thus, it does not appears as a surpassed moment but as a “prehistorical” and “posthistorical” being that is festively excessive and residual in relation both to history and to itself. In this sense, the effective state of exception is not a tragic choice out of many futures, on the crossroads, but a comic repetition that takes place against the horizon of the pending end of history.

Here, one should note that the effective state of exception does not fully annul the fictive state of emergency in the sense of liberals and fascists, but that it results from the purifying critique of the former. After having ironically noticed that the “state of emergency” was, in fact, regular, we do not only start searching a new, authentic notion of the exceptional, but we also realize that the state of exception had always-already taken place, that it left its imprints on our here-and-now.

Hence the accent upon the past and the factual, and not upon the future, the virtual, or the unforeseeable. Hence also the radical democratization and rendering-prosaic of the exceptional, which, as it turns out, does not necessarily impose emergency. Meanwhile, it is everyday life that is truly outstanding. The everyday is the state of exception minus the state of emergency.

Thus, in the same 14 th thesis, Benjamin suddenly compares the effective, revolutionary state of exception to fashion . Fashion, like revolution, envisions what is most current and up-to-date, but it also penetrates the depths of the recent past by committing its “tiger jump” there. Fashion is theatrical, mimetic – but so is revolution. Except that fashion is such for the passive bourgeois public, and revolution is such for the active participants of the feast. But most importantly, revolution combines habit and repetition with singularity and novelty. This is one of Benjamin’s main ideas. Habit is more radical (exceptional) than shock; reproduction is more radical (exceptional) than the aura; repetition is more radical than uniqueness.

Why? To understand this, let us return to the thesis which says that the “state of emergency” in which we live becomes the rule. If it is, should we use words like “exception” or “emergency”, or “normal” and “regular” at all? Don’t they lose any and all sense or meaning? Or does each moment pose the question of norm or exception? But how do we distinguish moments from one another? How can we recognize the exceptional (or messianic), if we have not ever seen it? Or, if we see nothing else but the exceptional?

The issue here is not just the recognition but the capacity for lateral, non-mathematic vision – the capacity to turn the perceptive and institutional structure upside down at any point in time. That is to say, perception and law require a certain “cunning” that actually catches what it pretends to neglect. A good structure is not simply open, but intentionally oriented at what it misses, or to what it only alludes. Thus, Kant once called abstraction “negative attention”.

Benjamin shows (especially in his “The Work of Art in the Age of its Mechanical Reproduction”) that, in spite of the universality of the exceptional, reality includes the substructures of experience that allow the recognitions of the new and the unexpected – the substructures that train negative attention. These structures de-focalize and distract ( zerstreuen ) it. It is this function habit plays. Habit helpfully takes most of the world out of our consciousness. But it does so not without leaving traces. Habit forms the enormous periphery of the world – a periphery that we do not perceive but which embraces us. An eye trained by habit will always, in any structure, any law, and any form of work, be able to notice, for example, that the sky had suddenly turned 180 degrees (one more example from Kant, for whom it was one of the most difficult tasks of thought to notice such a turn). Habit, thus, is an experience of a profane illumination, a worldly analogy of sacral practices. Apart from it, there are other analogous practices, such as the experience of awakening, or, again, fashion. And, of course, contemporary art, art of the “age of mechanical reproduction”. Such art transforms shock into tradition, institutionalizes distraction and makes therefore a good adversary to shock-laden, fetishist fascism. Thus, habit is the true name of the exceptional: exceptional minus emergency.

If we now return to the sphere of law, we will have to note the following. Giorgio Agamben, in his exhaustive analysis of the notion of “state of exception”, notes the principal danger that it contains. In this state, the law pretends that it controls a zone that it, in fact, always fails to control. This “fictitious state of exception” is the legal analogy of metaphysics – of the system which recognizes the transcendent but which pretends to control it. But, one could object to Agamben, this does not mean that any invasion of law into the zone of lawlessness would be a metaphysical colonization! Contrary to the famous formula by Wittgenstein (“Of what one cannot speak, one should remain silent”), thought (and law) can only live if they constantly reach (transgress) into a zone that they do not and will never control.

Here, there is another danger – the danger against which Carl Schmitt reacted, after Benjamin. Benjamin showed how the illusion of permanent progress canceled all progress and created the permanent state of emergency. Likewise, Schmitt writes in his “Law of the Earth”, the expansion of abstract Western law, understood as a system of rules, is today leading us toward the disappearance of all criteria that would allow the application of such laws. The further the expansion goes, the less there remains of territories that are foreclosed for this “universal” law, the less acceptable “the rights of man”, “democracy”, and other legal fictions become. They degenerate into ideological nonsense, which they originally were not. Here, the exception from law is made not according to the law on the “state of exception”, but either by way of omission, or by way of exiling problems into a few non-colonized zones. The issue is, then, not as much the state of exception but rather its original non-recognition. Thus, in Russia, the authorities systematically refuse to declare state of emergency in Chechnya, which generates absurd situations: for instance, there is a battle, dozens of casualties on each side, etc., and then the first thing they show on TV is the state prosecutor who “opens a criminal case”, as though we were dealing with robbers and not with a hostile army. As a result, the law is not applied at all, and we have a situation of total anomy, but under the façade of formal law. And this is true not only of Chechnya . Clearly, it would be more honest, in this case, to have declared a state of war in Chechnya and to introduce some other rules of the game that would be more realistic but that would actually apply.

At present, the Russian Duma is considering a package of laws introducing a system of “terror alert” regimes, which allow the suppression of a number of important civil rights. This means that our government may turn from the bureaucratic non-attention to exception to a voluntarist attempt to master them. Such passage would mean the opening of the conflict and the relative loss in legitimacy for the regime, something like what is currently happens, on a global scale, in the foreign politics of the USA . We saw in Benjamin that, in fact, abstract liberalism and emergency-based fascism, are two sides of the same medal.

But does this mean that we should generally refuse from the legal reasoning, from law, and from exceptional provisions in the constitution? Hardly. The creation of an effective state of exception is, among other things, a creative effort at building a new, unusual nomos . This new law should certainly not prescribe the exact rules of behavior in the exceptional situations, it should not pass all responsibility for those to an exceptional figure that would embody the exception. But the constitution should necessarily found in lawlessness. It should, firstly, contain provisions that would derive from the eventful, revolutionary emergence of the constitution. Constitutions should contain traces of their birth. These provisions are usually the most creative, the most playful of the entire constitution. Constituent practices are always mimetic. IN the zone of residue and excess, one human being is always exceptionally open for the impact of the other. Besides, revolutionaries, acting without law, need to pretend that the new order had already existed; they need to pretend that the whole age-old machine of oppression had suddenly dissolved into thin air. That is (as Marx had already noticed), the very temporal structure of mimesis and mimicry is constitutive for revolution. Hence its link to fashion. Generally, the more creative and playful is the constitution, the better it refers, alludes (word of the same root with “ludus,” play) to what is outside it.

Secondly, the constitution should contain the right of resistance, as it did in the Middle Ages – not the right to defend this very constitution, like today in Germany , but the right to resistance in general, up to the point of private war. Resistance should be regulated not during its course, but post factum, after one party wins or a compromise is negotiated, allowing for an international open trial among the government and the rebels. Thirdly, the constitution should provide, in case of a serious political, economic, and military crisis, not only a reinforcement of the executive, but a convocation of a broad all-people congress which would have the authority to change the constitution, like the Congress of the people’s deputies during the Perestroika.

Thus, such exceptional provisions of the constitution would not necessarily colonize the void of anomy. On the contrary, they are borderline provisions, which give, so to speak, volume and extension to the border of law, in all its ambiguity between fact and right, between the norm and the singular. Law has and makes sense if it looks, distractedly, at what is outlawed. There, on its borders, law is exceptional and normal at the same time. And these borders are populated.