Terrorist v sovereign: legal performances in a state of exception

In this article, I engage with the work of political theorist Giorgio Agamben and interrogate his proposition that the contemporary Western political environment resembles a state of exception. I analyse the function of performances in which the executive's power to wage war is challenged by activists, in both legal and quasi-theatrical settings, and then consider legal challenges mounted by accused terrorists against the executive. Although the courts approach these two categories of legal contest quite differently, the outcome of such challenges supports Agamben's thesis; at best, the courts are prepared to adopt a formalistic and procedural approach in considering the ambit of the executive's powers to detain, discipline and otherwise control the unruly bodies of accused terrorists. By contrast, in the final category of legal performances involving the state and accused terrorists, the courts demonstrate a surprising adherence to the rule of law. These performances, the terror trials, are designed as state-orchestrated spectacle in which the accused terrorists, shackled and encased behind glass, are represented as homo sacer. However, here we find an application of fundamental legal principles relating to the inadmissibility of evidence obtained under oppressive conditions of inducement, false imprisonment and kidnapping. It would thus seem that the contemporary state of exception is not absolute.