Wednesday, 10 May 2000

From "The State of the Exception"

By Giorgio Agamben.

[In Thomas's Summa theologica] 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)."

The principle according to which necessity defines a singular situation in which the law loses its vis obligandi [binding force] (this is the sense of the phrase: necessitas legem non habet [necessity knows no law]), is inverted into that according to which necessity constitutes, so to speak, the ultimate foundation and the very source of the law.

No comments: