The Legality of Necessity in the State of Exception; Agamben via Bern

In response to extreme conditions, extraordinary powers, allowing for actions beyond any set up legal order, are assumed by a government in the form of a state of exception. The parallels drawn between the state of exception and the concept of necessity lead theorist Agamben to begin questioning this relationship. The reliance on the concept of necessity appears to allow for actions beyond the premise of a set up legal order based upon a subjective determination. The 1914 Swiss Vollmachtenregime and the Swiss Epidemics Act use during the Coronavirus outbreak both provide for insights into understanding this reliance. The main aim of this paper will be to present how Agamben questions this parallel relationship. The insights from the Swiss political reality allow this paper to pursue its second aim and uncover the degree to which the concept of necessity is the basis of the state of exception. The final aim will be to assess whether these parallels may in fact undermine a legal order.