In the first two sections, Agamben argued that there is a paradox inherent to sovereignty: sovereignty must be both inside and outside the law. It is inside the law because no legal structure can escape the inevitability of exceptional cases, and it is outside the law because it is capable of suspending the law. The sovereign decision is not, first and foremost, the decision of a dictatorial leader, but the way that the border between inside-the-law and outside-the-law appears within a political body. It does not decide on what is legal or illegal, but on how life (with all its vagueness and details) is to be “included” within the legal system. Schmitt describes the exception as an “eruption of real life,” (i.e. from outside the legal order) but Agamben argues life (zoë) was included from the beginning: it is included as excluded. The relation between life and law, maintained by the sovereign exception, is a relation of ban.
The remainder of Part 1 argues that the sovereign exception holds sway over law and life because our legal logic, or better, our common political ontology, insists that the potential to found a new legal system (which we can call constituting power or law-founding violence) maintains an ongoing relation to actual legal systems (constituted powers, or law-preserving violence). Agamben wants to find a way to think potentiality without any relation to actuality at all, in order to show how our fundamental political ontology can think constituting power without the necessity of the sovereign exception and its inclusive exclusion of life. Part of the answer he finds in messianism, which is a different exception; instead of life and law being made indistinguishable because the exception secretly includes life as excluded, life becomes law as the transgression of the law.
Notes from Mathew Abbott’s The Figure of This World
While discussing Homo Sacer, we need to keep in mind that it is about political ontology, as opposed to a philosophy of law, or a political philosophy, or a historical account of the origins of concentration camps. A political ontology is different from a political philosophy or a political theology; a political philosophy tries to think about the political good from the perspective of unbiased human reason, while political theology tries to think about the political good from the perspective of obedience to God. A political ontology has elements of both: while it refuses obedience to a transcendental principle like God, neither does it attempt to be unbiased.
Why refuse to be unbiased? Here, the difference between “metaphysics” and “ontology” is important, specifically, their difference as articulated by Martin Heidegger. Heidegger developed a distinction between Being and beings. What he means by beings is quite simple: all the things that exist and their properties. Metaphysics has spent its history thinking about beings: what causes them, what they are like, what they do, and so on. It tries to answer questions like what is really real? and gives answers like atoms or God.
For Heidegger, it is not that these answers are false, but that they leave an even more basic question untouched: what does it mean to say beings are? What is being, the simple fact that things exist? When we say “Atoms are pure being,” this leaves us unable to say what is is, or at best puts us into a vicious circle of saying “‘Is’ is. . .” Any metaphysical position ultimately has to simply assume being, to leave it as an unthought presupposition. Leaving pure being unthought puts us into the position of having to account for everything solely in terms of properties and causes, and for Heidegger, the endpoint of this is a coldly utilitarian outlook for which forests, rivers, and even people are nothing but their potential use, their place in a machine. Part of Heidegger’s solution is to insist on the “gratuity” of being: things exist without reason and for no purpose. This sort of account is what he called fundamental ontology: metaphysics deals with beings and leaves being unthought, while ontology is about the question of being.
Political ontology, at least a left-wing Heideggerian version of it, begins from that question: what is pure being, and how do we describe it without reference to causes and reasons? This is why it is not just the unbiased outlook of political philosophy, because it is slanted in the direction of beginning from the contingency of all things. This slant places it close to political theology, but without accepting any obedience to transcendence. It is also like political theology, especially Schmitt’s version, in another way: the political structures that are considered obvious by a given age are considered obvious because they reflect the metaphysical assumptions of that age. The difference is that while Schmitt considers the structure of sovereignty to be necessary and inescapable, Agamben thinks it is contingent and can be overcome.
In Agamben’s specific version of political ontology, bare life (zoe) and potentiality map on to pure being, and so are left unthought in accounts of political life and power. Politics must both presuppose and ignore bare life, both include and exclude it. The project is about redescribing the “metaphysics” of power in order to make its unthought explicit, and so strip it of its ability to hold us in its mystifying power.
- 3 – The Potentiality of Law
When a new state is founded, either from scratch or after a revolution, those involve exercise constituting power. Once the new state is in place, it governs through constituted power. The paradox of sovereignty most obviously appears in the relation between constituting and constituted power. A legal scholar, Georges Burdeau, argued that they exist on two different levels: constituted powers exist only within the state frame, but constituting powers owe nothing to the state; “it is the spring whose current no use can ever exhaust.” There can be no harmonious relation between the two. The difficulty is obvious when we look at the legal status of dictatorships or states of exception, but also when we look at the way constitutions foresee the possibility of their own revision. Agamben says that today, the general tendency is to regulate everything through rules, and so few are willing to admit that constituting power is both fundamental and irreducible: “it cannot be conditioned and constrained in any way by a determinate legal system and that it necessarily maintains itself outside every constituted power” (40). The power required to create a constitution is dismissed as a historical happenstance, or reduced to the abilities to revise a constitution spelled out by that constitution.
Antonio Negri has tried to show the irreducibility of constituting power (which he defines as “the praxis of a constituting act, renewed in freedom, organized in the continuity of a free praxis”) to any constituted order, and also that constituting power is not the same thing as the principle of sovereignty. Constituting power is a moment of freedom, but sovereignty only arises after constituting power has finished its job and established a constituted power. Agamben says that while it is true that constituting power does not derive from constituted power, this is not enough to explain a distinction between constituting power and sovereignty. A long quote:
“The strength of Negri’s book lies instead in the final perspective it opens insofar as it shows how constituting power, when conceived in all its radicality, ceases to be a strictly political concept and necessarily presents itself as a category of ontology. The problem of constituting power then becomes the problem of the “constitution of potentiality,” and the unresolved dialectic between constituting power and constituted power opens the way for a new articulation of the relation between potentiality and actuality, which requires nothing less than a rethinking of the ontological categories of modality in their totality. The problem is therefore moved from political philosophy to first philosophy (or, if one likes, politics is returned to its ontological position). Only an entirely new conjunction of possibility and reality, contingency and necessity, and the other [ways of being], will make it possible to cut the knot that binds sovereignty to constituting power. And only if it is possible to think the relation between potentiality and actuality differently—and even to think beyond this relation—will it be possible to think a constituting power wholly released from the sovereign ban. Until a new and coherent ontology of potentiality (beyond the steps that have been made in this direction by Spinoza, Schelling, Nietzsche, and Heidegger) has replaced the ontology founded on the primacy of actuality and its relation to potentiality, a political theory freed from the aporias of sovereignty remains unthinkable.”
Agamben does not offer a complete theory of potentiality, but does offer a start. Aristotle is sometimes read as saying that potentiality is completely expended in actuality: the seed’s potential to become a flower goes away once it actually becomes a flower. However, he carefully maintains an autonomous existence for potentiality. This “potentiality in itself,” as we might say, is not a merely logical possibility, but has to be something that exists. For example, the piano player has the potential to play piano, and keeps this potential even when not playing (as opposed to a child, who has the logical possibility of learning to play, but does not really have the potential to “not play”). If potentiality is going to have its own autonomous existence, then it must be able to not become actual; potentiality must also be the potentiality to not act: it must also be an “impotentiality”.
If all potentiality is an impotentiality, then the problem of how it can become actual appears; Aristotle’s answer (finessed a little by Agamben) is that the potential becomes actual when it sets its impotentiality, its potential to not-be, aside. This setting aside is not a destruction of potential (like the seed’s potential is destroyed when it becomes a flower), but to fulfill it. The piano player, when playing, does not destroy his potential to play: he fulfills it.
This description of potentiality is the source of the problem of sovereignty; the sovereign bans applies in no longer applying, and this is analogous to the structure of potentiality, which keeps a relation to actuality through its ability to not be. Potentiality, as an ontological ability to potentially be or not be, is how “Being founds itself sovereignly, which is to say, without anything preceding it or determining it other than its own ability not to be. And an act is sovereign when it realizes itself simply by taking away its own potentiality not to be, letting itself be, giving itself to itself” (46).
Let’s try to clarify this. Agamben is saying there is an analogy between sovereignty and potentiality. Sovereignty, as constituting power, becomes constituted power when it excludes its ability to not be, but this ability to not be cannot be wholly excluded, and so is included. That is the relation of ban. Potentiality, like the potential to play the piano, is not exhausted or destroyed when one actually plays the piano, but it is excluded, and the potential to not play remains included. He ties this together at the level of being (i.e., the simple fact that things are): there is being because the potential to not be is excluded, and it is not excluded because of any rule or higher cause, but simply a sovereign moment of being’s self-founding.
In order to get past the logic of the ban, it is not enough to say that constituting power does not exhaust itself when it becomes actual (i.e. when its potential becomes actual). Let’s quote Agamben’s alternative in full:
“Instead one must think the existence of potentiality without any relation to Being in the form of actuality—not even in the extreme form of the ban and the potentiality not to be, and of actuality as the fulfillment and manifestation of potentiality—and think the existence of potentiality even without any relation to being in the form of the gift of the self and of letting be. This, however, implies nothing less than thinking ontology and politics beyond every figure of relation, beyond even the limit relation that is the sovereign ban.” (47)
My best attempt at rephrasing this: we need to be able to articulate a version of potentiality, and hence constituting power, that does not have any relation to actuality or constituted power. To to fully articulate such an account of potentiality, it has to be beyond any relation: which, as far as I know, is just another way of saying absolute.
Agamben goes onto give examples of philosophers who have tried to describe being beyond any principle of sovereignty, but he thinks the best example is Melville’s Bartleby, whose I would prefer not to “resists every possibility of deciding between potentiality and the potentiality not to” (48). However, these philosophers did not quite accomplish the task; “the dissolution of the ban, like the cutting of the Gordian knot, resembles less the solution of a logical or mathematical problem than the solution of an enigma. Here the metaphysical aporia shows its political nature” (48).
- 4. Form of Law
In Kafka’s “Before the Law,” a man tries to gain entry to the “law”, but the gatekeeper does not give him permission to enter, despite the gate itself being wide open. The gatekeeper says the man might be given permission later, so the man sits and waits – he ends up spending his whole life waiting, and just before he dies, he asks the gatekeeper if anyone had ever gained entry to the law. The gatekeeper says “Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.”
Agamben says this story is a representation of the structure of the sovereign ban; nothing actually prevents the man from passing through gate except the fact that the door is already open, that the law prescribes nothing. The pure form of the law gains its greatest force at the moment when it is a pure ban. The man ends up in the grip of the potentiality of law because law demands nothing of him and commands nothing other than its own openness. The law applies to him in no longer applying, and holds him in its ban in abandoning him outside itself.
This interpretation is not entirely complete. Referring to letters sent between Walter Benjamin and a Jewish scholar named Gerschom Scholem, Agamben says that the law’s force is a “Being in force without significance”. The structure of the sovereign ban is a law that is in force but does not signify. Kant was the first modern to describe this “being in force without significance”: “Now if we abstract every content, that is, every object of the will (as determining motive) from a law, there is nothing but the simple form of a universal legislation.” A pure will, determined only through this form of law, “is neither free nor unfree,” just like Kafka’s man at the gate.
What is this form of law, and how does one behave when one’s will is not determined by any particular content? Kant says “respect” is the form of life of one who lives under a law which is in force without signifying; “The motivation that a man can have, before a certain end is proposed to him, clearly can be nothing other than the law itself through the respect that it inspires (without determining what goals it is possible to have to reach by obeying it). For once the content of free will is eliminated, the law is the only thing left in relation to the formal element of the free will.”
Agamben thinks that is a great description of mass societies and totalitarian states; a life under law that is in force without signifying is like life in the state of exception: “[L]aw is all the more pervasive for its total lack of content. . .” (52). For Kant, the purely formal nature of the law allowed it to be applicable in every circumstance; in Kafka’s The Trial, “the empty potentiality of law is so much in force as to become indistinguishable from life” (53). it is this impossibility of of distinguishing law from life that is the state of exception. Benjamin, for his part, tried to describe a messianism that would stop law from remaining in force apart form its content.
With that in mind, consider Benjamin’s eighth thesis on history: “The tradition of the oppressed teaches us that the ‘state of exception’ in which we live is the rule. We must arrive at a concept of history that corresponds to this fact. Then we will have the production of the real state of exception before us as a task.” What is this “real” state of exception, and how does it differ from the one we have been talking about all along?
Law begins to coincide with life once it has become the pure form of life,
“But insofar as law is maintained as pure form in a state of virtual exception, it lets bare life. . . subsist before it. Law that becomes indistinguishable from life in a real state of exception is confronted by life that, in a symmetrical but inverse gesture, is entirely transformed into law. The absolute intelligibility of a life wholly resolved into writing corresponds to the impenetrability of a writing that, having become indecipherable, now appears as life. Only at this point do the two terms distinguished and kept united by the relation of ban (bare life and the form of law) abolish each other and enter into a new dimension.” (55)
The best sense I can make of this is that he is trying to describe a situation in which life becomes law, as opposed to being inclusively excluded by it.
Most interpreters of “Before the Law” read is as a story of the man’s defeat in the face of the impossible task imposed by the law, but there might be a different reading. Consider the final lines of the story: “No one else could enter here, since this door was destined for you alone. Now I will go and shut it.” It was the door’s openness that constituted the force of the law; what if the man’s behaviour was a strange way of closing the door, and interrupting the force of the law? It is possible to see the man as a sort of Messiah. Agamben uses that term because in Judaism, Christianity, and Shiite Islam, the Messiah is primarily an attempt to deal with the law, to bring it to fullness or consummate it. There is a twist problem, however: can how a law that is already suspended be fulfilled? Someone, the door must first be closed before the Messiah can arrive.
One of the paradoxes of the state of exception is that it is impossible to distinguish between transgression of the law and execution of the law: the citizen out for a walk after a martial-law imposed curfew is not actually breaking the law, any more than the soldier who shoots him is following the law. Strangely, this is the situation after the Messiah arrives in the Jewish tradition: the fulfillment of the law is not a new law, but its transgression. Messianism is a theory of the state of exception, but instead of a sovereign proclaiming an exception, there is the Messiah who subverts its power.
By showing the link between violence and law, Benjamin’s “Critique of Violence” is the key starting point of any discussion of sovereignty. He describes the link as an oscillation between the violence that founds law and the violence that preserves it, and concludes that a third figure, divine violence, is necessary to break the cycle.
Agamben compares sovereign violence with divine violence. While neither can be reduced to law-founding or law-preserving violence, this does not mean they are the same. Sovereign violence creates a zone of indistinction between violence and law, between inside and outside, but the sovereign maintains the possibility of deciding on them to the very degree that he makes them indistinguishable. As long as the exception is distinguished from the normal case, the dialectic between positing/preserving violence is not broken: sovereign violence is nothing other than the passage from one to the other. In other words, sovereign violence maintains the connection between law and violence. Divine violence, on the other hand, is a situation in which it is no longer possible to distinguish between exception and rule: “It stands in the same relation to sovereign violence as the state of actual exception, in the eighth thesis, does to the state of virtual exception” (65). Insofar as divine violence is the breaking of the violence/law connection, Benjamin says it does not posit or conserve violence, but deposes it. it shows that the connection between the two kinds of violence is the only single content of law.
Agamben says that Benjamin abruptly shifts to a discussion of the “bearer” of the link between between violence and law, which Benjamin calls “bare life.” (In this case, it does not seem to be identifiable with zoë.) A puzzling passage: “Now only does the rule of law over the living exist and cease to exist alongside bare life, but even the dissolution of juridical violence, which is in a certain sense the object of the essay, ‘stems. . . from the guilt of bare natural life, which consigns the living, innocent and unhappy, to the punishment that expiates the guilt of bare life—and doubtless also purifies the guilty, not of guilt, however, but of law’” (65).
We need to analyze the bond between bare life and sovereign power. According to Benjamin, the idea that life is sacred is not enough to help us call into question “the rule of law over the living,” because it is exactly this bare life that is “destined to guilt.” There seems to be a secret complicity between the sacredness of life and the power of law.
To this point, Agamben has been describing the logical structure of sovereignty. But what is the actual content of the exclusion and the inclusion? Both Benjamin and Schmitt point to life: bare life for the former, the “real life” that “breaks the crust of a mechanism rigidified through repetition” for the latter. Life has an intimate relation to sovereignty, and that is what part 2 is about.