Judiciary in a ‘State of Exception’

Arup Kumar Sen

Giorgio Agamben theorized State of Exception as the dominant paradigm of government in contemporary politics. His theorization was organically connected with the “Nazi State” in Germany. Agamben argued: “The state of exception is not a special kind of law (like the law of war); rather, insofar as it is a suspension of the juridical order itself, it defines law’s threshold or limit concept…The expression full powers, which is sometimes used to characterize the state of exception, refers to the expansion of the powers of the government, and in particular the conferral on the executive of the power to issue decrees having the force of law”. ( Giorgio Agamben, State of Exception, The University of Chicago Press, 2005)

What was the role of the judiciary in Nazi Germany, a State of Exception? Matthew Lippman, a scholar of jurisprudence, wrote a treatise on it on the occasion of sixtieth anniversary of Adolf Hitler’s ascendancy to power in Germany. He located how a relatively advanced judicial system degenerated into “barbarism”. To put it in the words of Lippman:

“The Nazis immediately launched a concerted campaign to limit the independence and impartiality of the judiciary. They quickly dismissed and demoted politically unreliable judges and officials of the Ministry of Justice…Six hundred and forty-three Jewish judges were terminated in Prussia alone…Among the 122 judges sitting on the various panels of the Supreme Court, only one, Hermann Grossman was a Social Democrat. In April 1933, Grossmann was dismissed on the grounds that he was politically unreliable”. (See California Western International Law Journal, Spring 1993)

Why Lippman rethought “Nazification of the Judiciary” in Germany, which took place six decades back? He made a seminal observation in this context: “The events in Nazi Germany vividly illustrate the importance of preserving the independence and impartiality of judges and lawyers. The politicalization of the legal process in Germany led to the perversion of the rule of law…In the end, the legal process was transformed into an instrument of raw repression and discrimination”.(ibid.)

There are moments in history which still haunt us in the 21st century.

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Aug 28, 2020