The problem of the sovereign decision in the philosophy of the State based on the perspective of the permament state of exception

Abstract

The aim of this work is to present a rereading of Hans Kelsen and Carl Schmitt’s theory of sovereignty through the analysis offered by Giorgio Agamben in the Homo Sacer program. The Italian philosopher seeks to reconstitute what the political-juridical tradition calls “state of exception” as the nucleus of sovereign power. For Agamben, there is no oscillation in the cadres of the modern state between the fragile survival of the legal order, as protector of human life, and the exceptional suspension of order; there is, rather, a necessary gap between the norm and its application, which ultimately bases sovereignty in the state of excpetion.