COVID-19 and State of Exception: Medicine, Politics, and the Epidemic State


Carlo Salzani

COVID-19 and State of Exception: Medicine, Politics, and the Epidemic State

The article analyzes the paradigm of the state of exception which has been evoked in relation to the exceptional measures adopted against the COVID-19 pandemic around the world, with particular reference to the works of Michel Foucault and Giorgio Agamben. In Agamben, the medicalization of politics analyzed by Foucault is complemented by a theory of sovereignty derived from Carl Schmitt that identifies in the state of exception the original political relation. His recent and much criticized attacks against the exceptional anti-COVID-19 measures must thus be read and understood within the wider context of his politico-philosophical project.

  The Medicalization of Politics IN the records of political history, the year 2020 will certainly be remembered as the annus horribilis of the COVID-19 pandemic leading to crucial political events and decisions, but it will not be remembered as an exception. As Roberto Esposito remarked in the early months of this annus horribilis, modernity itself is marked by the indissoluble entwining of medicine and politics, whereby politics, unlike in classical or medieval paradigms, shows itself as more and more dedicated to “curing” its citizens and their health, and medicine, on the other hand, is invested with tasks of social control.1 The medicalization of politics and the politicization of medicine are what defines modern politics as such, hence the exceptional political measures adopted around the world to fight the pandemic are not the exception but rather the paradigm of politics in modernity. It is in modernity that the medieval metaphor of the “body politic” takes on its full meaning and “disease” becomes not only the main metaphor for disorder but also the literal object of power’s actions and preoccupations; and another medical metaphor, immunity / immunization / autoimmunity, can be used as the model of its pathogenic drift.2 That the medicalization of politics has colonized not only the political but also the social and literary imaginary is exemplified by the fact that the major threat to the body politic is symbolized by the plague, which marks political discourses as well as powerful political fables such as, for example, Camus’ The Plague or Saramago’s Blindness, which everybody rushed to re-read in this troubled year. Pandemics as the Rule But the COVID-19 disease is not an exception either: as the name of the virus causing it clearly reveals, SARS-CoV-2 is the second severe acute respiratory syndrome coronavirus, following the first one (SARS-CoV or SARS-1) that caused the 2002-2004 outbreak. Though it has been initially also described as “one-in-a-century event,”3 the COVID-19 pandemic actually is, as Alain Badiou aptly remarked, “nothing new under the contemporary sun” and rather belongs to the “new normality” that characterizes our late modernity.4 An epoch in which, due to a number of social, political, economic, and environmental factors, ever new viruses have found and will find the ideal conditions to “leap” from nonhuman to human animals and spread out at a planetary level. From the AIDS epidemic to Ebola, from avian flus to pig plagues, from the West Nile virus to the Nipah virus and up to the 2009 H1N1 (a swine flu) pandemic, viral diseases have been and will be marking our time and its politics, so that the question is not whether a new pandemic will break out, but rather when. And, as stated by, among others, Michael Osterholm, named in November 2020 a member of Joe Biden’s COVID-19 Advisory Board, the next pandemic will be worse.5 According to an apt animal metaphor (given its zoonotic character), COVID-19 is not a “black swan,” an event that is very rare and difficult to predict (like for example the 1918 Spanish flu), but rather a “gray rhino,” a highly probable but neglected threat that will produce a massive impact, or, perhaps better (that is, worse), a “yellow canary” (from the expression “a canary in a coal mine”), an event that warns of even greater dangers to come.6 Three Models: Leprosy, Plague, Smallpox It has been noted that the COVID-19 pandemic is a biopolitical dream (or rather nightmare) come true7—and in fact Foucault’s poignant analyses of the intertwined evolution of politics and medicine in modernity have been evoked from the very beginning. To describe the mutations of power between the seventeenth and eighteenth century, Foucault tellingly used three models based precisely on infectious diseases. In the lecture on 15 January 1975 of his 1974-1975 course at the Collège de France titled Abnormal and, more in depth, in the opening of the chapter on panopticism of Discipline and Punish (published a month later, in February 1975), he counterpoised the management of leprosy and that of the plague as two distinct modalities of control and organization: whereas the former required the leper’s exclusion from society, the latter installed a disciplinary mechanism that mobilized society in its totality. Both models, Foucault noted, are very ancient, but in a sense at the dawn of modernity the plague model became prevalent. According to Foucault’s by-now famous distinction, the exclusion of lepers (premodern power) is a negative model based on rejection and prohibition and pursuing the dream of purifying the community; the plague model (modern, disciplinary power), to the contrary, is a positive technology of power demanding the inclusion of the infected within a space meticulously analyzed, partitioned, organized, and controlled, with the concomitant production of an appropriate knowledge. Exclusion is replaced by quarantine, rejection by inclusion and the assignment to each individual of a proper name and a proper place. The goal is no longer that of purifying the community but rather of producing a healthy population. This model contradicts the “literary dream of the plague,” all those political fables (like Camus’ or Saramago’s) which liken the plague to orgiastic outbursts of lawlessness, disorder, and confusion; the “political dream of the plague” is instead precisely the contrary, “the marvelous moment when political power is exercised to the full. Plague is the moment when the spatial partitioning and subdivision (quadrillage) of a population is taken to its extreme point.”8 In truth, the plague is met by order, discipline, hierarchy, control: “The plague-stricken town […] is the utopia of the perfectly governed city.”9 The two models merged in a way in the nineteenth century in a double mode which combined the binary division of the leper model with the disciplinary distribution of the plague model.10 However, three years later Foucault added a third model during his 1977-1978 lecture course titled Security, Territory, Population. In the first lecture on 11 January 1978 (and then throughout the course), he identified the smallpox or inoculation model as one focused neither on exclusion nor on quarantine, but rather on epidemic and the medical campaign trying to stop it. With this third model the point is no longer to establish purity or discipline, but rather security and the management of risk; no longer that of fixing and demarcating the territory, but rather that of “allowing circulations to take place, […] controlling them, sifting the good and the bad, ensuring that things are always in movement, constantly moving around, continually going from one point to another, but in such a way that the inherent dangers of this circulation are canceled out.”11 The technologies of security respond to risks without presuming to eliminate them but rather aiming at containing and regulating them. These three models (or variations and combinations of them) can be easily applied, in different gradations, to different phases and/or different locations in the management of the COVID-19 pandemic, from the strict discipline of the Chinese or Italian approach to the neoliberal laissez faire of (certain moments of) the UK or US approach and up to the “securitarian” dream of a planetary vaccination, with the leprosy model (the total isolation of the infected) always lurking in the background. Democracy and Exception It is however another paradigm that was mostly evoked to illustrate the political response to the pandemic: that of the state of exception. As provided for in most democratic constitutions (and obviously implicitly in other forms of government), exceptional circumstances such as the COVID-19 pandemic call for exceptional measures and exceptional powers that temporarily can suspend the law. From a juridical perspective, the pandemic can be compared to terrorist threats, natural disasters, or migration crises, which call for exceptional responses and the extension of executive powers. And in fact, the rhetoric of the “war on the virus,” adopted by many heads of state (e.g., Donald Trump in the USA and Emmanuel Macron in France), is strikingly identical to that of the “war on terror” that marked the first two decades of the twenty-first century—and leads to the same threats to democracy itself: emergency powers have a worrying tendency of becoming permanent and the “normal” means of government; moreover, governments tend to weaponize the crisis and use it as a pretext to adopt repressive measures unrelated to the crisis itself. Examples of the first instance are the US Patriot Act, enacted after the 9/11 terrorist attacks, extended four times between 2001 and 2019 and partially still in force, or the state of emergency declared in France after the 2015 Paris terrorist attacks, renewed six times and finally incorporated into law in 2017;12 current examples of the second instance are Donald Trump using the pandemic to deregulate climate rules and suspend environmental regulations in the USA; the technologies of mass surveillance “exceptionally” adopted in China, Israel, and elsewhere to “stop the virus” (for which even a new, Foucault-inspired, term, “coronopticon,” was coined13); or Viktor Orbán having the parliament declare indefinite executive powers for his office in Hungary. These risks for democracy are the main and vivid concern of the worried liberal-democratic intelligentsia around the world, to the point that the UN Secretary General, António Guterres, warned in April 2020 that the COVID-19 crisis was “fast becoming a human rights crisis.”14 What (rightly) worries the liberal-democratic mind is that the unprecedented limitations on personal freedoms adopted to fight the pandemic will be abused and then in some way and degree will be normalized and remain in place after the crisis, transforming (i.e., maiming) democratic life. In a word, that the exception becomes the rule.15 Exception as the Original Political Relation The contemporary philosopher who has centered his political-philosophical proposal on a poignant critique of the state of exception is Giorgio Agamben,16 and in 2020 he did indeed virulently attack the exceptional measures adopted around the world to fight the pandemic.17 However, his critique of the state of exception does not coincide with the liberal-democratic position and, on the other hand, it is more complex and articulated than a mere anarcho-libertarian intolerance of rules and limitations, of which he has been scathingly accused. His position on the pandemic must be thus contextualized and qualified within his philosophical trajectory. The critique of the state of exception is what sustains the twenty-year-long project that gave Agamben fame, Homo Sacer. In the very first volume of the series, through a critical reading of Carl Schmitt’s theory of sovereignty, the exception is identified as the “originary juridico-political structure”:18 in a nutshell, the exception is the way in which the law claims power over the existent (and in particular over life) by including the existent within itself as external to it. This fundamental figure is what Agamben calls the “inclusive exclusion” through which the law creates a zone of indistinction between outside and inside and thereby secures its hold on life. This means that the law (any law, since for Agamben law means normativity as such) always functions as a state of exception. What happens in modernity is that, according to a principle derived from Walter Benjamin’s 1940 theses, “On the Concept of History,” the exception becomes the rule and the state of exception becomes the customary tool of government, in totalitarian as well as in democratic political systems. This thesis is developed and refined in a subsequent volume of the series, titled precisely State of Exception. While restating that the state of exception is “the original structure in which law encompasses living beings by means of its own suspension” and is therefore the “constitutive paradigm of the juridical order,”19 here Agamben also traces a brief history of this juridical institution in modernity, identifying its first instance in the state of siege introduced into modern legislations by the French Revolution. This means, importantly, that the modern state of exception is “a creation of the democratic-revolutionary tradition and not the absolutist one”20 (as its theorization by the “undemocratic” Carl Schmitt might have suggested). That is, the state of exception is not a falling back of democratic institutions into an absolutist stage, but rather the most intimate structure at the core and truth of the modern state, whether democratic, absolutist, or totalitarian. Since World War One this mechanism has increasingly become the customary means of government and, as Agamben was writing already in 2003,21 “has today reached its maximum worldwide deployment,”22 eroding the bourgeois democracies and the rule of law from within. Though certainly unprecedented and extreme, from an Agambenian perspective today’s states of exception in the war against COVID-19 are perfectly internal to the logic of the modern state: ultimately, they are “nothing new under the contemporary sun.” The Safety of the People is the Supreme Law The main critique Agamben brings against the current exceptional measures is that they entirely revolve around what he names the “religion of health” that structures political action around the mere preservation of “bare life.”23 All political goals have been subordinated to mere biological survival. This is however not only the very definition of biopolitics—which Foucault characterized in the 1970s as the peculiarly modern political focus on the preservation of life and Agamben made the cornerstone of his own political philosophy—but is also the tenet structuring the modern state as such. Again, nothing new, as we learn from Agamben himself. In Stasis, first published in 2015 but composed of two reworked lectures delivered at Princeton University in 2001, Agamben proposes the paradigm of this structure through a reading of the famous frontispiece of Hobbes’ Leviathan. One important detail is fundamental in this picture: the city in the foreground, dominated by the gigantic figure of the sovereign, is empty except for a few armed guards and two curious figures in front of the church wearing a strange beaked mask. Francesca Falk pointed out that this was the mask worn by plague doctors, which leads her (and Agamben) to identify and emphasize the “connection between epidemic, health and sovereignty.”24 The (absent) citizenry is represented only by “the guards who monitor its obedience and the doctors who treat it” and is thus equated to plague victims: “the condition of the subjects of the Leviathan,” Agamben writes, “may be somehow comparable to that of the sick”;25 that is, Alberto Toscano glosses, the modern state is, as such, a “plague state”26 (or perhaps a “smallpox state,” according to Foucault’s third model; but in any case an “epidemic state”), which sees its task as that of governing a depoliticized multitude in times defined by epidemics. Its motto is a maxim taken from Cicero’s De Legibus (III,1,3), Salus populi suprema lex, the safety of the people is the supreme law, cited by Hobbes in De Cive and Leviathan but also by Locke as epigraph of his Second Treatise on Government and by Spinoza in his Theological-Political Treatise.27 The Trauerspiel of the Indecisive Sovereign Agamben’s interventions on the pandemic have been harshly censured and accused of paranoia, denialism, conspiracy thinking, and mere raving, but the harshest charge is that of being detached from reality and exiled to the ivory tower of his theoretical constructions.28 After all, it has been noted, sovereign powers around the world (whether democratic or not) have been revealed by the pandemic as incompetent, unprepared, indecisive, and confused, and the state of exception finally has not led to “sanitary dictatorships” but instead to the concession that all national and international sovereigns are weak.29 Many governments, moreover, have been extremely reluctant to declare the state of exception for fear of damaging the economy, and the overall picture is not one of discipline and power but rather of sheer chaos. Here Foucault’s neoliberal “smallpox model” can helpfully complement and complexify the critique of the state of exception. But another paradigm is relevant and to the point, the portrait of the baroque sovereign in Walter Benjamin’s analysis of German Baroque drama or Trauerspiel. When citing Schmitt in the Trauerspiel book, Benjamin implicitly responded to his theory of sovereignty not only by inverting its terms, whereby the most important function of the baroque sovereign became for him not that of declaring the state of exception but on the contrary that of “averting” it30 (as many contemporary sovereigns did when confronted with the pandemic), but also by showing the intrinsic indecisiveness of the sovereign: “The prince, who is responsible for making the decision to proclaim the state of emergency, reveals, at the first opportunity, that he is almost incapable of making a decision.”31 This is not, however, a question of competence and skill (as if “a better sovereign would have done a better job…”), but rather an intrinsic and essential trait of sovereignty as such. Quoting again Benjamin’s 1921 “Critique of Violence,” Agamben argues that this trait unveils the “ultimate undecidability of all legal problems” and thus the vacuity of any theory of sovereignty.32 The sovereign as such is condemned to incompetence and indecisiveness and the “epidemic state” cannot but fail in its defining task of preserving the life of its citizens. Resistance The inevitable conclusion of Agamben’s critique of the state of exception is that

the task at hand is not to bring the state of exception back within its spatially and temporally defined boundaries in order to then reaffirm the primacy of a norm and of rights that are themselves ultimately grounded in it. From the real state of exception in which we live, it is not possible to return to the state of law.33

This position is very different from the liberal-democratic one as it does not call for the restoring of democratic “checks and balances” but rather for the very halting of the whole machine of the modern state. The way out from our contemporary predicament consists, for Agamben, in nothing less than the messianic overcoming of Western politics as we know it. In his interventions on the pandemic Agamben almost seems to deplore the inglorious end of the bourgeois democracies that he has built a career criticizing, but his current call for “new forms of resistance”34 must be soberly read (despite and against his current apocalyptic tones) in the context of his philosophical critique of the state of exception. What this resistance will consist in cannot be defined or described a priori, but if there is one thing that the 2020 pandemic has taught us, it is that this new political strategy cannot be reduced to an all-too-common and essentially anarcho-libertarian focus on individual freedoms (to which also Agamben’s project ultimately amounts35) but will have to be a positive collective project towards the common good.  

CARLO SALZANI is Guest Scholar at the Messerli Research Institute of the University of Vienna, Austria. His recent publications include the volumes Animality in Contemporary Italian Philosophy (2020), co-edited with Felice Cimatti, and Saramago’s Philosophical Heritage (2018), co-edited with Kristof K.P. Vanhoutte. dePICTions volume 1 (2021): Pandemic Times
1. Roberto Esposito, “Curati a oltranza,” Antinomie: Scritture e immagini, 28 February 2020 [1 December 2020]. 2. Cf. e.g., Roberto Esposito, Immunitas: The Protection and Negation of Life, translated by Zakiya Hanafi, Cambridge: Polity Press, 2011; Jacques Derrida, Rogues: Two Essays on Reason, translated by Pascale-Anne Brault and Michael Naas, Stanford: Stanford University Press, 2005. 3. For example by British Health Secretary Matt Hancock; cf. Peter Franklin, “No, Matt Hancock, this is not a ‘once-in-a-century event’,” The Post, 20 March 2020 [1 December 2020]. 4. Alain Badiou, “On the Epidemic Situation,” Verso blogs, 23 March 2020 [1 December 2020]. 5. Michael Osterholm, “The Next Pandemic: How Can we Best Prepare?,” interview by Kristen Jill Abboud, Human Vaccines Project, 20 August 2020 [1 December 2020]. 6. An Xiao Mina, “This Pandemic isn’t a Swan – it’s a Canary,” Meedan blog, 11 August 2020 [1 December 2020]. 7. Philipp Sarasin, “Mit Foucault die Pandemie verstehen?,” Geschichte der Gegenwart, 25 March 2020 [1 December 2020]. 8. Michel Foucault, Abnormal. Lectures at the Collège de France 1974-1975, translated by Graham Burchell, London: Verso, 2003, 44-47. 9. Michel Foucault, Discipline and Punish: The Birth of the Prison, translated by Alan Sheridan, New York: Vintage, 1995, 195-199. 10. Foucault, Discipline and Punish, 199-200. 11. Michel Foucault, Security, Territory, Population. Lectures at the Collège de France 1977-1978, translated by Graham Burchell, Basingstoke: Palgrave Macmillan, 2009, 65. 12. Moussa Bourekba, “COVID-19 and terrorism: when the exception locks down the rule,” CIDOB opinion, April 2020 [4 December 2020]. 13. “Creating the coronopticon: Countries are using apps and data networks to keep tabs on the pandemic,” The Economist, 28 March 2020 [3 December 2020]. 14. António Guterres, “We are all in this Together: Human Rights and COVID-19 Response and Recovery,” United Nations COVID-19 Response, 23 April 2020 [4 December 2020]. 15. Cf. e.g., Alan Greene, “State of emergency: how different countries are invoking extra powers to stop the coronavirus,” The Conversation, 30 March 2020 [4 December 2020]; Leïla Choukroune, “When the state of exception becomes the norm, democracy is on a tightrope,” The Conversation, 27 April 2020 [4 December 2020]. This position is exemplified by Bernard-Henri Lévy, Ce virus qui rend fou, Paris: Grasset, 2020. 16. Agamben’s theory of the state of exception was already used, for example, to analyze the response to the 2009 H1N1 pandemic by Cindy Patton, “Pandemic, Empire and the Permanent State of Exception,” Economic and Political Weekly, 46(13), 2011, 103-110. 17. Agamben published a first, virulently polemical article in the newspaper Il manifesto on 26 February 2020, and then continued quite regularly to publish short pieces on the website of his publisher Quodlibet. In July 2020, Quodlibet published a collection of these texts under the title A che punto siamo? L’epidemia come politica, Macerata: Quodlibet, 2020. In December 2020, Agamben published another collection of texts in the same vein under the title Quando la casa brucia, Macerata: Giometti & Antonello, 2020. 18. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, translated by Daniel Heller-Roazen, Stanford, CA: Stanford University Press, 1998, 168-69, and passim. 19. Giorgio Agamben, State of Exception, translated by Kevin Attell, Chicago: The University of Chicago Press, 2005, 3, 7. 20. Agamben, State of Exception, 5. 21. A good part of Agamben’s fame is due to the fact that his critique of the state of exception was seen as prophetically unmasking the mechanisms which were shaping the “war on terror” and world politics at the dawn of the new millennium. His current thesis that the “war on the virus” is taking the place of the “war on terror” as a pretext to declare the state of exception is much less appreciated and successful. 22. Agamben, State of Exception, 87. 23. Agamben, A che punto siamo?, 18 and passim. 24. Francesca Falk, Eine gestische Geschichte der Grenze. Wie der Liberalismus an der Grenze an seine Grenzen kommt, Paderborn: Fink, 2011, 73, quoted in Giorgio Agamben, Stasis: Civil War as a Political Paradigm, translated by Nicholas Heron, Stanford: Stanford University Press, 2015, 48. 25. Agamben, Stasis, 48, 49. 26. Alberto Toscano, “Beyond the Plague State,” The Bullet, 14 May 2020 [9 December 2020]. 27. Agamben, Stasis, 48-49. 28. For a few examples (among many), see Paolo Flores d’Arcais, “Filosofia e virus: le farneticazioni di Giorgio Agamben,” MicroMega, 16 March 2020 [9 December 2020]; Anastasia Berg, “Giorgio Agamben’s Coronavirus Cluelessness,” The Chronicle of Higher Education, 23 March 2020 [9 December 2020]; Tim Christaens, “Must Society be Defended from Agamben?,” Critical Legal Thinking, 26 March 2020 [9 December 2020]. 29. Cf. e.g., Arjun Appadurai, “The COVID Exception,” Social Anthropology 28.2, 29 May 2020 [9 December 2020]. 30. Walter Benjamin, The Origin of German Tragic Drama, translated by John Osborne, London: Verso, 1998, 65. This point was emphasized by Samuel Weber, “Taking Exception to Decision: Walter Benjamin and Carl Schmitt,” in Benjamin’s -abilities, Cambridge: Harvard University Press, 2008, 176-194. 31. Benjamin, The Origin of German Tragic Drama, 71. 32. Agamben, State of Exception, 53. 33. Agamben, State of Exception, 87. 34. Agamben, A che punto siamo?, 98. 35. I owe this insight to Adam Kotsko, who expressed it in a podcast at The Filter with Matt Asher on 5 November 2020 [9 December 2020].