This paper explores the philosophical, political and memorial consequences of the contemporary status of law present in the work of Giorgio Agamben with specific reference to the field of legal history. My intention is to offer a genealogical reading of the relation between Agamben’s theory of the state of exception animating his political and legal philosophical writings in the Homo Sacer trilogy and his earlier interest in the philosophy of language and history. While exploring this path, I shall follow his indictment of modernity construed as a drive fracturing the relation between knowledge and experience. By further analyzing the destruction of experience as a feature of modern times, I intend to map out the political and legal consequences of the crisis of authority befalling our contemporary nomos, one which is inherently connected to the decoupling between narrative and experience. In this way, I aim to provide a broader philosophical context to Agamben’s concept of the state of exception which otherwise tends to be disregarded within receptions of his work in the field of legal studies. In a first part, I shall map the relevance of Agamben’s concept of the state of exception as an intellectual tool for approaching the contemporary status of law as well as its historical unfolding. Secondly, I shall insist on Agamben’s understanding of the destruction of experience as a feature of a modern intellectual dynamics dissolving the traditional structures of knowledge and the production of authority. In a third part, I shall explore the consequences of Agamben’s reading of the dissolution of law and the destruction of experience for the writing of legal history.
Cercel, C. S. (2017). Law’s disappearance: the state of exception and the destruction of experience. In F. Girard, & S. Glanert (Eds.), Law's hermeneutics: other investigations. Routledge