Homo Sacer, Part 1: §1-2

Here is the reading for April 23.  You can find a printable copy here, and we meet at 4:30 here.

Introduction

The Greeks had no single term for what we mean by “life”.  They had two words: zoē and bios.  Zoē is the life that all living beings, animals and humans alike, share, while bios is the kind of life proper to a group of humans.  When Plato speaks of the three kinds of life, or when Aristotle distinguishes the contemplative life and the political life, neither used the term z. Zoē is an unqualified life, while Plato and Aristotle were interested in particular kinds of lives. The Greeks did recognize that bare life had a goodness of its own, but it was strictly excluded from the polis.  Bare life was for the home.  Aristotle’s definition of the goal of the community was to become canonical for western political theory: “born with regard to life, but existing essentially with regard to the good life.”

Aristotle says human politics is different from the relations of other living beings because “it is founded, through a supplement of politicity tied to language, on a community not simply of the pleasant and the painful but of the good and the evil and of the just and the unjust” (3).  Foucault refers to this definition at the end of The History of Sexuality, Vol. 1 when he talks about how, at the beginning of the modern era, bare life began to be included within State power, that is, the birth of biopolitics. Foucault even calls this a society’s “threshold of modernity”: it is when the species and the individual become what is at stake in politics.  Hannah Arendt got there 20 years earlier in The Human Condition when she showed how labor, and biological life with it, began to occupy the centre of modern politics.   

Biopolitics has been a real challenge to think about; we can see this in the fact that Foucault’s work makes no reference to Arendt, and never managed to draw a connection between biopolitics and the most obvious modern examples of them: camps and totalitarian states.  Arendt, for her part, made no connection between the expansion of the private sphere and her later work in The Origins of Totalitarianism, in which Agamben says “a biopolitical perspective is altogether lacking”.

The entry of bare life into politics is the decisive event of modernity, and completely undercuts the categories of classical thought.  We are only going to be able to deal with the events of the last 100 years if we deal with them on the ground they grew out of, biopolitics.  The categories which found modern politics, such as right and left, public and private, and absolutism and democracy, have been steadily dissolving into one another, and to understand why, we need a biopolitical perspective.   

Homo Sacer is about the intersection between the legal/institutional and biopolitical power, which Foucault never quite managed to connect.  The two cannot be disconnected: “It can even be said that the production of a biopolitical body is the original activity of sovereign power” (6).

The first part of this book deals with the structure of the exception, which seems to be built into western political thinking.  The idea that man is a living animal with the additional capacity for political existence is exactly the problem: what does “additional capacity” mean?  When Aristotle says “born with regard to life, but existing essentially with regard to the good life”, he is inclusively excluding bare life from politics.  The problem is that politics is the place where life transforms into the good life, but what has to be made political is bare life.  The exclusion of bare life is what founds the city of men.  Therefore, it is unsurprising that Aristotle puts the origin of the city at the transition from voice to language.  Voice, as in “ow, that hurts,” and language as in, “that was unjust”.  The link between bare life and politics is the same link that the definition of man as “the living being who has language” sees in the relation between voice and language.  

The basic pair of Western politics is not friend vs enemy, but bare life vs political existence: “There is politics because man is the living being who, in language, separates and opposes himself to his own bare life in an inclusive exclusion.” (19/8)  

This book’s protagonist is bare life, which he will call sacred man, or homo sacer.  Homo sacer is man “who may be killed and yet not sacrificed,” and Agamben says this figure plays a vital role in contemporary politics. The term homo sacer comes from an obscure corner of the ancient Roman legal system.  It is a figure of human life that is included in the legal order solely as excluded, that is, its capacity to be killed.

Agamben’s thesis is basically this: bare life has always been inclusively excluded from the political, so its inclusion is not new, like Arendt and Foucault argued.  What is new is the exception becoming the rule, and what was originally marginal (because inclusively excluded) is beginning to become central, to coincide with the political realm.  All the pairs—inclusion and exclusion, bios and z, right and fact, are entering into a zone of “irreducible indistinction.”

The main difference between modern and classical democracy is that modern democracy presents itself as a liberation of z, and more so, that it is trying to transform bare life into a way of life: to find the political bare life.  This gives us modern democracy’s specific aporia: “it wants to put the freedom and happiness of men into play in the very place—‘bare life’—that marked their subjection” (9-10).  This will help explain why democratic societies fall into decadence and converge with totalitarianism.

Today, politics knows no value other than life, and until this is resolved, Naziism—which turned life into the supreme political principle—will remain with us.  The idea of an inner connection between democracy and totalitarianism is not a historiographical claim, which would level their enormous differences.  But it has to be maintained at a historico-philosophical level in order to confront our new reality. We need to invent a new politics based on that connection.

Part 1: The Logic of Sovereignty

  • 1: The Paradox of Sovereignty

Agamben begins Part 1 with this formula: “The paradox of sovereignty consists in the fact that the sovereign is, at the same time, outside and inside the juridical order” (15).  The legal system gives the sovereign the right to suspend the legal system, so he is both inside it and outside it.  Another way to phrase this is “the law is outside itself”, or “I, the sovereign, who am outside the law, declare that there is nothing outside the law.”  Understanding this will help us see how sovereignty is the limit (as in end and principle) of the legal system.

We need to remember Schmitt’s argument: The exception defies any general codification; it is a pure decision. General rules need a regular, everyday frame of life in order to function, but “There is no rule applicable to chaos.”  In order for a legal system to make sense, order must be established, and the sovereign is the one who decides when order actually exists.  Hence, “All law is ‘situational law.’”  The exception is what founds the possibility of any rule.  He quotes Kierkegaard as saying, “The exception explains the general and itself.  And when one really wants to study the general, one need only look for a real exception.” So for Schmitt, what is at stake in the exception is the very possibility of rules.  Through the state of exception, the sovereign creates and guarantees the situation in which the law can function validly.  

There is a sense in which the legal exception transcends the rule.  The relationship is similar to positive and negative theology.  Positive theology describes God, while negative theology suspends or negates any predicates.  In a sense, only an initial negative move can create the space for a positive theology; only after being described as being outside predication can the divine become the subject of a predication.  And it is the same with law: only with an exception decision can the space for positive law be opened to define the normal case.

The exception is a kind of exclusion.  But while it excludes the rule, it does have a relation to it.  What is excluded in the exception is related to the rule by way of the rule’s suspension: “The rule applies to the exception in no longer applying, in withdrawing from it” (18).  The state of exception is not the chaos that precedes order, but the suspension of order.  It is in this sense that the etymology of exception is important: it means taken outside and not just excluded.  The outside is not included by some sort of an internment, but by suspending the legal system’s validity.  The exception does not subtract itself from the rule.  Rather, the rule suspends itself and give rise to an exception.  It first becomes a rule through a relation to an exception.  The whole force of law consists in this ability to law to remain related to what is outside the law; this relation is what Agamben calls the “relation of exception”.

The situation created in the exception is neither a matter of fact nor right, or in other words, it is neither an “is” nor an “ought”.  It is a paradoxical threshold of indistinction between the two, a place where the line blurs, because it only happens through the suspension of a rule.  This is what Schmitt was pointing at when he said that the sovereign decision “proves itself not to need law to create law.”  “What is at issue in the sovereign exception is not so much the control or neutralization of an excess as the creation and definition of the very space in which the juridical-political order can have validity” (19).  The sovereign exception is what localizes not only the distinction between the inside (i.e. the normal situation) and the outside (i.e. chaos), but which “traces a threshold” between the two which allows them to enter into a relation so that the legal system can be valid.

So the state of exception is the thing that creates the border between the normal situation and  chaos; it creates the map.  Because it is the border, it has to be able to straddle both; it is a zone of indistinction between inside the law and outside the law.  When a new rule is established, the rule has to both establish and maintain a relation to what is outside the law, a kind of “nonrelational relation”.  In this sense, the state of exception is the original basis of any legal system, “the originary juridico-political structure on the basis of which what is included in the juridical order and what is excluded from it acquire their meaning” (19).  Basically, the state of exception is the principle of every juridical localization, of every creation of a border: “As such, the state of exception itself is thus essentially unlocalizable, even if specific spatiotemporal limits can be assigned to it from time to time” (19).  It is unlocalizable because it is inside and outside; it has no specific place.  However, one of this book’s main theses is that today, the state of exception is becoming more and more the rule; we are putting ever more effort into localizing the exception: “When our age tried to grant the unlocalizable a permanent and visible location, the result was the concentration camp” (20).  As a side note, is important to distinguish camps from prisons, since prisons are places entirely within the legal order.

The validity of a rule is not the same thing as its application in a particular case; the rule has to be generally valid independently of any particular case.  Agamben says something similar goes on with language: for any given sentence to make sense, to denote an actual thing, the sentence has to have a virtual relation with the whole grammatical system that does not actually appear in any given sentence.  In the same way, a rule can only apply to a particular case because it is backed up by a sovereign exception, which does not appear in any normal case.  Because every application of a rule is backed up by the possibility of an exception, every application of a rule can result in a transgression of a rule.  For example, the killing of a person might not be the usual sort of homicide, but an act of sovereign violence in the state of exception.

Exceptions and examples function in a symmetrical way.  An example is supposed to show how something belongs to a class.  Consider an example from grammar; a single sentence that is not distinguished from others in any way is still isolated from them precisely because it belongs to them.  If we take “I love you” as an example of a performative speech act, then it cannot be understood in a normal context, but yet as to be treated as an actual thing someone said in order to be taken as an example.  An example, in order to show what a class or set of things is, has to be abstracted out of that class.  In other words, at the very same moment that the example helps us define a set of things, it is taken outside of that set.  This is why Agamben calls an example an exclusive inclusion.

On the other hand, an exception is an inclusive exclusion.  While examples, which demonstrate belonging, must not belong to their set, non-belonging to a set can only be shown by an exception.  The relation between exception and example “comes into play overtime the very sense of belonging and commonality of individuals is to be defined.  In every logical system, just as in every social system, the relation between outside and inside, strangeness and intimacy, is this complicated” (22).

One of Agamben’s translators, Adam Kotsko, says Agamben thinks the seeds planted long ago are finally sprouting with a breakdown of the western machine, resulting in a strange sort of generalized exception: everything is exceptional.  Agamben clearly presents this is something destructive.  In other writings, he uses Walter Benjamin’s imagery of “stopping the machine”, and it seems that what Agamben wants is to make everything exemplary.  Keep in mind the difference between exception and a grammatical example: the law ceases to be law, but while the sentence is taken outside its grammatical context, it continues to be a sentence that makes sense.  If the sentence were exceptional, it would be nonsense.  Kotsko says, “The example comes back forcefully in The Highest Poverty, where the life of Christ or the monastic founder is put forward as exemplary — but the whole point is that everyone should be able to follow it. The rule that emerges out of life can be corrupted into a law-like mechanism, but in its originary moment, Agamben is absolutely insistent that the example-based model of monasticism is completely heterogeneous with regard to the exception-based model of the law.”

In Roman civil trials, defendants had the right to declare an exceptio, a kind of nullification of the content of the plaintiff’s charges, thus rendering the application of civil law impossible.  The Roman legal code describes it is an exclusion of the application of civil law.  Strictly speaking, the exceptio is not completely outside the law, but instead is an attempt to answer to two different juridical demands: the application of the norms of civil law, and the need to temper their excessive generality.  It is not a true exception because it does not suspend the civil code, while the sovereign exception adds something else: rather than answering to conflicting juridical demands, it “displaces a contrast between two juridical demands into a limit relation between what is inside and what is outside the law” (23).

The sovereign decision is not first and foremost the decision of a leader.  Rather, it is how the border between inside-the-law and outside-the-law appears within a political body.  It does not decide what is legal and what is illegal, but on how daily life, with all its vagueness and details, can be included within the legal system.  So this is not just about an eruption of “effective life which breaks the crust of a mechanism grown rigid through repetition,” but something built into the law itself.

The law can regulate not because it is capable of punishing, but because it is capable of including daily life within itself by creating the condition of normality every legal system needs.  The law first creates this normal situation not by punishing a crime, but by an initial act of violence which is declared to be exceptional.  In this sense, violence is “a primordial juridical fact” (26).  The reason it can do this is because once this exceptional violence is carried out and life is included through an exclusion, it is permanently “in debt” to law; it is the situation of “being in relation to something from which one is excluded or which one cannot fully assume” (26-27).  The simple fact that the law exists through an exception is what gives it is force, not its ability to punish.  It is impossible to decide if it is debt that founds the rule or the rule that posits debt, and so it is impossible to properly distinguish between inside and outside, between law and life. The statement “The rule lives off the exception alone” must be taken literally.  Law is nothing but what it includes within itself through the inclusive exclusion of the exception.  

Both Schmitt and Benjamin understand moral and legal definition of guilt to be confused with one another, but they go in opposite directions.  For Benjamin, the fundamental guilt or indebtedness that gives law its force is something to be overcome in the name of freedom, while for Schmitt, it is what gives the sovereign the leverage it needs to “slow the dominion of the Antichrist”.

If exception is the structure of sovereignty, then it is not only a political or legal concept: it is the fundamental structure of law.  It is the way in which law refers to life and includes life within itself.  Agamben borrows a word from Jean-Luc Nancy to describe this relation: ban.  It is an old Germanic term that could refer to exile or the sovereign’s insignia.  The person who has been banned is not merely set outside the law, but set on the threshold between life and law; “It is literally impossible to say whether the one who has been banned is outside or inside the juridical order” (28-29).  It is in this sense that the paradox of sovereignty can be phased as “there is nothing outside the law.”  The actual relation of law to life is not application, as in applying a law to a situation, but abandonment.  This book is about trying to understand the ban so that we can begin to question it.

  • 2. ‘Nomos Basileus’

The idea that sovereignty is a legal issue seems inseparable from our ideas of democracy and the State, but it does not eliminate the paradox.  Rather, it pushes it to its limit.

Agamben begins tracking the relation between law and violence, and the indistinction between them, from ancient Greek poets like Pindar and Hesiod.  What we see behind every idea of sovereignty is that “the sovereign is the point of indistinction between violence law, the threshold on which violence passes over into law and law passes over into violence” (32).

Plato attempted to undo the connection between law and violence by introducing a “law of nature”.  When he argued that “law must rule over men, and not men over law,” he was not affirming law’s sovereignty over nature, but the fact that law is “natural,” which for him meant non-violent.

Agamben wants to recast the opposition between nature and law.  The idea that nature comes before law is the basic premise of the opposition between nature and society: for the Sophist, it justifies the rule of the strongest, and for Hobbes, it justifies the sovereign.  In both cases, nature and violence are identified.

Hobbes goes a little further.  For him, the state of nature is still present in the sovereign, so nature is still within society.  The sovereign’s capacity for violence is exactly this indistinction between nature and society, so the state of nature’s violence is always a potential within law.  The state of nature, of course, does not have to be an actual stage of history, but rather a principle internal to the state in the moment when the state is dissolved in an exception:  “Exteriority—the law of nature and the principle of the preservation of one’s own life—is truly the innermost centre of the political system, and the political lives off it in the same way that the rule, according to Schmitt, lives off the exception” (36).

Schmitt says that every system of laws which organizes the world, the nomos of the earth, has to leave a place and a time outside the law, “a temporary and spatial sphere in which every law is suspended.”

Insofar as the nomos is sovereign, it is connected to both the state of nature and the state of exception.  The state of exception, with its indistinction between violence and justice, is not external to the nomos, but internal to it in a fundamental way.  It is a potential within every legal system.  When society dissolves, it does not revert to a state of nature, but enters a state of exception.  The state of exception is not something located in a particular place and time, in a particular spatiotemporal sphere, but is a zone of indistinction between violence and justice that inhabits every law. The process that Schmitt described and that we are still living became apparent in the First World War, with the breakdown of European international relations:

“What happened and what is still happening before our eyes is that the ‘juridically empty’ space of the state of exception. . . has transgressed its spatiotemporal boundaries and now, overflowing outside them, is starting to coincide with the normal order, in which everything again becomes possible. . . . Political organizations are not regressing towards outdated forms; rather, premonitory events [such as in the ex-Yugoslavia] are, like bloody masses, announcing the new nomos of the earth, which (if its grounding principle is not called into question) will soon extend itself over the entire planet.” (38)

 

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