Rights and Freedoms Exempt from States of Exception: A Comparative Study of the Views of Carl Schmitt and Giorgio Agamben

Abstract

The present study examines rights and freedoms under states of exception in light of the views of Carl Schmitt and Giorgio Agamben. Through a comparative examination of the perspectives of these two philosophers, the study analyzes the interaction and tension between governmental necessities and individual rights under conditions of crisis. Schmitt argues that, in a state of exception, sovereignty is understood as the capacity to decide on the suspension of ordinary laws in order to ensure the survival of the state. He emphasizes the importance of sovereign power in making vital decisions outside the framework of existing legal norms and regards the state of exception as an opportunity to consolidate state power. By contrast, Agamben criticizes Schmitt’s approach and argues that the state of exception has become a permanent paradigm of governance in modern political systems. He views this development as a threat to democracy, whereby the repeated suspension of law results in the continuous erosion of citizens’ rights and freedoms. The present study, through a comparative analysis of the views of Schmitt and Agamben, examines the risks arising from the exercise of states of exception and proposes approaches for safeguarding fundamental rights during periods of crisis. It also examines historical and contemporary instances of such states in order to demonstrate how the exercise of emergency powers may become a political instrument for excessive governmental control. The findings of this study underscore the necessity of maintaining a careful balance between security imperatives and the protection of citizens’ rights and emphasize the importance of rigorous legal oversight to prevent potential abuses of sovereign power.