Direito e poder no estado de exceção sob a perspectiva do pensamento de Giorgio Agamben: a existência de um Estado Dual

Abstract

As the Italian philosopher Giorgio Agamben highlights at the threshold of his investigations, there is no so-called democratic “State” that is not strongly committed to the massive fabrication of human misery and the end of social . Taking this finding into consideration, the general goal of our research is to analyze the syntagma “state of exception” as a paradigm for contemporary politics according to Giorgio Agamben. To this end, it is necessary to understand the state of exception as a presupposition of the political and legal structure of modern power and recognize the legal phenomenon of exception in the fundamental correlation of coexistence between rights and power. To this end, a critical digression will be performed, showing the path proposed by Agamben regarding one of the founding narratives of the modern State, namely: the “mythologeme of the social contract” in the face of the objectification and legitimacy of modern power through the bias of sovereignty and the its paradox (inside/outside a sovereign power hidden in the power structure of modernity). With this, we are faced with the proposed problem of this analysis, which is to highlight the “rights form” of the legal phenomenon of modernity based on the assumption of the state of exception as “a void of law”. In this way, what constitutes our analytical problem is presented: highlighting the correlation between law and politics at the moment of the facticity of the sovereign decision, a correlation that unduly reduces the applicability of the “rights form”, making it a void of law in relation to the condition of existence of human life in the state of exception, subjected to contemporary relations of power. This statement leads to a serious question: how does the establishment of a zone of anomie and the void of the “rights form”, in the relationship between sovereignty and the state of exception, justify contemporary authoritarianism? This is the motivation behind this research. In this sense, we will seek to answer this question through the philosophical, historical and epistemological perspective of the archaeological method from a paradigmatic ontology of modern power as proposed by Giorgio Agamben. Under this analysis, it is maintained, together with the philosopher, that we survive in a “permanent state of exception” in the face of the contingencies of the existence condition of human life in correlation with politics and rights in contemporary times. Given the political and legal analysis of the syntagma “state of exception” in contemporary times (as a structure of political power and politics in law), we seek to formulate the thesis that the phenomenon of the Contemporary State form, presented itself as a “dual State”, that is, a State now of law, now of exception, that articulates and conditions human life in the process of a political action of exclusion and inclusion in contemporary times, between the interfaces of a sovereign political and legal decision, a form of State implicit in the thought of Giorgio Agamben.