ABSTRACT
This chapter outlines how contemporary theories of the state of exception may be used to interrogate and understand the boundary between the two sides of law in the Third Reich. It seeks to revisit Giorgio Agamben’s work on the state of exception to establish what of value it can offer historians and theorists of law in Nazi Germany; how it can help people to read the juridical aporia of the Third Reich. The Third Reich is intimately connected to Agamben’s Homo sacer project and specifically his study of the state of exception. Agamben relies heavily on the Nazi use of the state of exception to support his claims of a ‘zone of indistinction’ between fact and law. However, the historical situation in the Third Reich does not provide as clear-cut a rebuttal of Agamben’s argument as Takayoshi asserts. The endorsement of the conventional state of exception narrative is problematic in light of the ideological imperatives driving the new legal regime.
