The State of Exception Between Schmitt and Agamben: On Topographies of Exceptionalism and the Constitutionality of COVID Quarantine Measures (with Examples from the Irish Context)

According to political philosopher Carl Schmitt (1888–1985), the emergency or State of Exception (Ausnahmezustand) is the ultimate test of political power and reveals in whom that power is vested. The State of Exception determines who is truly sovereign in a given state. Schmitt defines the sovereign act as a decision on the question of the exception, and further classifies sovereignty as a liminal term, a borderline concept (Grenzbegriff), suggesting a geometric metaphoricity underlying his conceptualization. On this theoretical basis, he develops the concept of decisionism, whereby the actual content or “what” of a decision is not the germane element, but rather the “who” of the decision and whether a given “who” (or decider) is the proper authority and possessor of the necessary sovereignty. This political philosophy is usually read in (and arguably tainted) by the immediate historical context in which it was conceived, namely 1930s Germany and the rise of National Socialism. Nevertheless, it has been reinvigorated recently as a paradigm used to explain government decisions taken under evolving COVID-19 pandemic conditions. The current use of Schmitt to understand the suspension of the normal order of things coincides with intense controversy about the work of one of his arch-critics—the surprising hero of the anti-lockdown anti-vaccination movement, Italian philosopher, Giorgio Agamben (1942 – ). The COVID State of Exception will be situated here between the competing philosophies of Schmitt and Agamben, with illustrative examples from, amongst other things, challenges to the Irish Constitution under pandemic conditions, in an attempt to reveal the rhetorical constructions of exceptionalism at work in political theory.