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@article{ART002692717},
author={Jongho Kim},
title={Exceptional State and Reversion of the Ghost as a Crisis of Constitutional Democracy},
journal={Legal Theory & Practice Review},
issn={2288-1840},
year={2021},
volume={9},
number={1},
pages={191-242}

TY - JOUR
AU - Jongho Kim
TI - Exceptional State and Reversion of the Ghost as a Crisis of Constitutional Democracy
JO - Legal Theory & Practice Review
PY - 2021
VL - 9
IS - 1
PB - The Korea Society for Legal Theory and Practice Inc.
SP - 191
EP - 242
SN - 2288-1840
AB - The fluctuations in the guarantee of security by the national-state system are no different from the expansion of the state between legal order and chaos. From the state of exception, which is both domestic and international politics, who (subject) and by what logic should the legal order be restored in what period and space? Here, Schmidt was referred to in discussing order formation in exceptional state. Schmidt made decisions in exceptional circumstances and made the sovereign of his friends and enemies. If it is determined that it threatens safety, a friend is initially established as an enemy after death by designation of the enemy. Here, prior to the debate over the subject that controls sovereignty, it is decided to classify two categories, focusing on the establishment of order in an exceptional state (although closely related). One is the reconstruction of order through the rule of power that does not require democracy. The other is the restructuring of order through self-domination through the creation of laws by democracy. The rule of power, which does not require democracy, falls into two forms. Referring to Agamben’s discussion, one form is called ‘the power of the law without rule’ or the ‘power of the non-law.’ The administrative power, which has become autonomous from the legislative power or judicial power, forms order through an order that has the same power as the law. Here, it is the fact that the act of governance, called an order, has the same power as a law, although it is not a statute legislated by a representative elected through a vote, a method of democracy. In other words, the parliament (legislature) becomes obsolete, and the separation of powers ceases. As Agamben argues in the ‘state of exception,’ a second structure that could exist alongside the legitimate constitution thanks to the state of exception is based on one paradigm that seems to be sharply defined as a dual state while maintaining the current constitution. It is the act of setting aside the separate power structure. In other words, it is the suspension of the constitution that sets the framework of the current governance and the government that puts another second structure next to the constitution. In exceptional state, it forms ‘order, not law’ by governance through power. The suspension of the legal order by the suspension of the constitution and the rule by a second structure by autonomy power reminded Nazi Germany, which ruled with the suspension of the constitution of the Weimar Republic, but substantially or in part during the Second World War. Constitutional dictatorship with suspended rule was widespread in liberal countries. Another form is created when a substantial order is formed by depoliticized economic power (for example, the formation of global standards by multinational corporations or movements in each country’s legal system for markets). Of course, depoliticized economic power does not completely destroy the current framework of governance. It is a government that has a different “second structure” next to the constitution or legislative process. This is to form a “legal order” by governing through “power, not law,” that is, power created without going through a democratic process in an exceptional state where the division of the public corporation is unclear. In sovereign states, the formation of an order other than the law evaluates the sovereign state at the center of its rule on the occasion of an exception that threatens security. If the boundary between domestic politics that maintains legal order and international politics of potential chaos is being melted, in such an exceptional state, by reappointing enemies, the scope of ‘friends’ to be kept safe is determined, and domestic politics and international politics are divided. It is a trend toward governance. However, it is necessary to continuously monitor whether the ghost of militarism is returning by arbitrarily setting a new order that our neighboring Japan is in an exceptional state.
KW - liberalism;state of exception;theory of conservative revolution;constitutional democracy;de-politicize;economic power.
DO -
UR -
ER -

Jongho Kim. (2021). Exceptional State and Reversion of the Ghost as a Crisis of Constitutional Democracy. Legal Theory & Practice Review, 9(1), 191-242.

Jongho Kim. 2021, "Exceptional State and Reversion of the Ghost as a Crisis of Constitutional Democracy", Legal Theory & Practice Review, vol.9, no.1 pp.191-242.

Jongho Kim "Exceptional State and Reversion of the Ghost as a Crisis of Constitutional Democracy" Legal Theory & Practice Review 9.1 pp.191-242 (2021) : 191.

Jongho Kim. Exceptional State and Reversion of the Ghost as a Crisis of Constitutional Democracy. 2021; 9(1), 191-242.

Jongho Kim. "Exceptional State and Reversion of the Ghost as a Crisis of Constitutional Democracy" Legal Theory & Practice Review 9, no.1 (2021) : 191-242.

Jongho Kim. Exceptional State and Reversion of the Ghost as a Crisis of Constitutional Democracy. Legal Theory & Practice Review, 9(1), 191-242.

Jongho Kim. Exceptional State and Reversion of the Ghost as a Crisis of Constitutional Democracy. Legal Theory & Practice Review. 2021; 9(1) 191-242.

Jongho Kim. Exceptional State and Reversion of the Ghost as a Crisis of Constitutional Democracy. 2021; 9(1), 191-242.

Jongho Kim. "Exceptional State and Reversion of the Ghost as a Crisis of Constitutional Democracy" Legal Theory & Practice Review 9, no.1 (2021) : 191-242.