Homo Sacer, P3: §6-7

Here is the reading for Saturday, August 13th’s meeting.  We will meet at 4:30 here, and there is a printable copy here.

In the previous passage, Agamben used examples of sinister medical experiments, such as blacks being infected with malaria in the U.S., to argue that doctors and scientists now wield a measure of sovereignty.  Remember that sovereignty is the capacity to decide who is killable.  In  section 6, Agamben explains how the line between life and death has become an increasingly political issue, as opposed to simply scientific or empirical.  

Section 7 is the last piece of the puzzle.  The first point is that sovereign power, the fundamental form of political power, is based on the capacity to decide, in exceptional cases, who is killable.  The second point is that the nation state has always been built on a connection between birth, land, and law.  The camp, as it developed over the last century, is the new fourth piece.  It is a space in which the exception is the new normal.  In our time, the key political issue which fundamentally divides people is no longer where one was born, or the territory a state holds, or the particular legal system of a given state. Now, the fundamental issue is who is inside a camp, and who is outside: and what’s more, everyone has the virtual capacity to be placed inside a camp.

6. Politicizing Death

In 1959, two French neurophysiologists named Mollaret and Goulon published a study of what they called the overcoma.  This was the first recognition of what we would now call a vegetable or an irreversible coma: a person absolutely dependent upon life support machines for their continued life, with no apparent hope of revival.  The authors wrote, “Confronted with the unfortunate people who embody the state we have defined with the term [overcoma], when the heart continues to beat day after day without producing even the smallest revival of life functions, desperation finally wins out over pity, and the temptation to push the liberating interruption button grows piercing.”

The authors recognized that the problem of the overcoma went far beyond the medical problem of resuscitation; it involved a redefinition of death.  Until then, doctors used the centuries old criteria of a stopped heart and lack of breathing, but the overcoma rendered these criteria obsolete.  New criteria were required in order to determine the legal moment of death.  The problem was made even more urgent by the simultaneous development of organ transplants.  The overcoma was the ideal condition for removing organs, but an exact definition of death was required for the responsible surgeon to avoid a charge of homicide.  In 1968, a Harvard committee developed the idea of brain death, and this was put into legislation by many Western states. Once medical tests confirmed the death of the entire brain, the patient was dead, even if life support technology kept them breathing.

Agamben is not interested in taking a position on the scientific debate over whether or not brain death constitutes a necessary and sufficient criterion for death, or whether we should stick with the traditional criteria.  He is more interested in the fact that the whole debate involves logical contradictions, and that the concept “death” is now wholly indeterminate.  On one hand, brain death is taken to be the only rigorous criterion of death, and so replaces the apparently inadequate somatic death (i.e., the traditional criteria).  But on the other hand, somatic death is still called in as the final criterion.  Hence, advocates of brain death can say that brain death “inevitably leads quite quickly to death”, or “these patients [who had been diagnosed as brain dead and who were, therefore, already dead] died within a day.”  Agamben cites other examples from the brain death literature talking about how somatic death inevitably follows brain death; “According to a clear logical inconsistency, heart failure—which was just rejected as a valid criterion of death—reappears to prove the exactness of the criterion that is to substitute for it” (163).

Agamben says, “This wavering of death in a shadowy zone beyond coma is also reflected in an analogous oscillation between medicine and law, medical decision and legal decision” (163).  As an example, in 1974, Andrew Lyon was accused of killing a man with a gunshot.  His defence was that the victim’s death was not caused by the bullet, but by the surgeon’s removal of his heart for a transplant.  The surgeon, Shumway, was called to testify and said, “I’m saying anyone whose brain is dead is dead.  It is the one determinant that would be universally applicable, because the brain is the one organ that can’t be transplanted.”  Agamben responds, “According to any good logic, this would imply that just as heart failure no longer furnishes a valid criterion for death once life-support technology and transplantation are discovered, so brain death would, hypothetically speaking, cease to be death on the day on which the first brain transplant were performed.  Death, in this way, becomes an epiphenomenon of transplant technology.” (163)

The upshot of this is that today, “life” and “death” are no longer properly scientific concepts, but also political ones, and they acquire their political meaning through a decision.  The border between life and death is always moving because it is a biopolitical border, and today there are signs that the exercise of sovereign power more and more cuts through the medical and biological sciences.

The hospital room of the overcomatose person is a space of exception in which, for the first time, a purely bare life is controlled by technology.  They are the extreme embodiments of homo sacer.

Some proponents of brain death even argue that the state should decide on the moment of death.  Agamben quotes a book called The Mastery of Living: “We must therefore define the moment of the end and not rely on the rigidification of the corpse. . . but rather simply keep to brain death. . . . What follows from this is the possibility of intervening on the faux vivant.  Only the State can do this and must do this. . . . Organisms belong to the public power: the body is nationalized.” None of the Nazi scholars Agamben has cited were ever so explicit about the politicization of bare life.  It is not possible, in modern democracies, to say things that even the Nazis did not.

7. The Camp as the ‘Nomos’ of the Modern

Agamben aims to show that the camps are not simply historical artifacts, but that we should see them “in some ways as the hidden matrix and nomos of the political space in which we are still living” (166).  Camps – whether the camps of the Nazis, or the Spanish camps in Cuba, or the English camps in the Boer War, did not grow out of criminal law, but out of states of exception and martial law. This is most obvious with the Nazi camps; the legal justification was not common law but “protective custody,” which allowed the state to take people into custody whether or not they had committed a crime. The legal foundation for protective custody was the proclamation of a state of siege or exception.  The Weimar governments used this many times, for up to five months at a time.

When the Nazis took power and proclaimed the “decree for the protection of people and State,” which indefinitely suspended the constitution they were only doing what other governments had done before, but with one difference.  The decree made no mention of a state of exception.  The state of exception stopped being attached to a temporary state of actual danger and became confused with the law itself.  Nazi legal scholars were aware of this, and defined the situation with the phrase “state of willed exception.”

The connection between the exception and the camp cannot be overestimated: “The camp is the space that is opened when the state of exception begins to become the rule” (168-169).  The state of exception, which was supposed to be the temporary suspension of law in the face of mortal danger, is given a permanent spatial arrangement, but still remains outside the normal order.  

Insofar as the state of exception is “willed,” it begins a new political paradigm in which the norm is indistinguishable from the exception.  The camp is the place in which the state of exception is realized normally.  “The camp is a hybrid of law and fact in which the two terms have become indistinguishable” (170).  Hannah Arendt said that in camps, “everything is possible.”  This is not only because law is suspended, but because law and fact are confused.

Insofar as the camp inmate is stripped of all political status and so completely reduced to bare life, the camp is the “most absolute biopolitical space ever to have been realized, in which power confronts nothing but bare life, without any mediation” (171).  The camp is the paradigm of politics in which biopolitics and homo sacer become virtually confused with the citizen; no act against the inmate could count as a crime.

The bare life of the camp inmates was not a fact that law had to confirm or recognize; instead, it was a threshold in which law constantly passed over into fact and fact into law, in which the two become indistinguishable.  It is impossible to understand the Nazi concept of race if we do not keep in mind that the biopolitical body which is the new political subject is not a question of fact (e.g., it is not about physical characteristics) or a question of law which could be applied, but is rather the result of a sovereign decision which makes fact and law indistinct.

Carl Schmitt made this clear when he attached the notion of race (saying that without it, “the National Socialist State could not exist, and without which its juridical life would not be possible”) to the “general and indeterminate clauses” that had appeared in European and German law in the twentieth century.  Phrases such as “good morals,” “public security and order,” “state of danger,” and “case of necessity” were increasingly common, and did not refer to rules but to situations.  These phrases destroy the illusion of a law which could regulate all cases and judges could simply apply; they made all legal concepts indeterminate.  The Nazi idea of race (in Schmitt’s words, “equality of stock”) functions as a general clause, like “state of danger”, which does not refer to any fact but confuses fact and law.  The judge who has to deal with this clause no longer orients himself according to a rule; they are bound solely to their community of race with the German people and the Führer.  Agamben says “such a person moves in a zone in which the distinction between life and politics, between question of fact and question of law, has literally no more meaning” (172).

The camp is the place in which bare life and rule are indistinguishable from one another.  Hence, every place that meets this description is a virtual camp, regardless of what specifically happens in them.  There were the stadiums in which Italian police herded illegal Albanian immigrants before deporting them, the holding zones in French international airports in which foreigners asking for refugee status can be held for up to four days, and the camps in which the Weimar governments held Jewish refugees from the east.  In all these cases, an apparently innocuous place is a space in which the normal order is suspended, and “in which whether or not atrocities are committed not on law but on the civility and ethical sense of the police who temporarily act as sovereign” (174).

From this perspective, the camp is the primary political space of modernity.  The modern political system was originally founded on three things: a particular place (the land), a particular political/legal order (the state), and the main way to join the order (birth).  The camp is now a fourth figure, and it the new, hidden regulator of the inclusion of life within the order.

The state of exception, which was a temporary suspension of the legal order, is a new and stable arrangement inhabited by the bare life that more and more cannot be included in that order.  The growing disconnection between birth and the state is the new political fact of our day, and the camp is the name of that disjunction: “To an order without localization (the state of exception, in which law is suspended) there now corresponds a localization without order (the camp as a permanent space of exception)” (175).  The political system no longer orders life and rules in a particular space, but contains a “dislocating localization” into which every form of life and every rule can be virtually taken.  This dislocating localization is the hidden matrix of the politics in which we are still living, and it is the structure of the camp that we have learn recognize in all its guises, including the holding zones of our airports and certain outskirts of cities.  The camp has been added to the old trinity of the state, birth, and land.  Agamben says, The camp, which is now securely lodged within the city’s interior, is the new biopolitical nomos of the planet” (175).

Every political interpretation of the term “people” has to start with the fact that the word is used to describe both everyone and those who are excluded.  While the American constitution makes no distinction when it begins “We the people,” Lincoln later says “Government of the people, by the people, for the people.”  The repetition implicitly opposes the first “people” to another “people”.  Agamben has already pointed out a similar ambiguity in the French declaration of rights, and he finds many other examples of it.

This common ambiguity cannot be accidental: it reflects a confusion concerning the word “people” within Western politics.  It reflects a confusion between two poles: on one hand, the total set of people, and on the other, the subset of the excluded.  It reflects the distinction between bare life (the excluded) and political existence (the total set).  Hence, the idea of “people” already carries within itself the fundamental biopolitical fracture within itself: “It is what cannot be included in the whole of which it is a part and what cannot belong to the set in which it is always already included” (178).  The use of the term always presents contradictions: the people are supposed to already exist, but also must be created; it is the source of identity, but has to be continually redefined through exclusion, language, blood, and land: “At times the bloody flag of reaction and the uncertain insignia of revolutions and popular fronts, the people always contains a division more originary than that of friend-enemy, an incessant civil war that divides it more radically than that of friend-enemy, an incessant civil war that divides it more radically than every conflict and, at the same time, keeps it united and constitutes it more securely than any identity” (178).

Even Marx’s “class conflict” is nothing other than the civil war that divides every people, and can only come to an end in a classless society or messianic kingdom, in which “People and people will coincide and there will no longer be, strictly speaking, any people” (178).  Agamben concludes by saying, “And in a different yet analogous way, today’s democratic-capitalist project of eliminating the poor classes through development not only reproduces within itself the people that is excluded but also transforms the entire population of the Third World into bare life.  Only a politics that will have learned to take the fundamental biopolitical fracture of the West into account will be able to stop this oscillation and to put an end to the civil war that divides the peoples and the cities of the earth” (180).

Threshold

There are three basic conclusions:

“1. The original political relation is the ban (the state of exception as a zone of indistinction between outside and inside, exclusion and inclusion). 2. The fundamental activity of sovereign power is the production of bare life as an originary political element and as threshold of articulation between nature and culture, zoe and bios. 3. Today it is not the city but rather the camp that is the fundamental biopolitical paradigm of the West.” (181)

The first thesis questions every social contract theory of the origin of the state, and along with it, every attempt to ground political communities in a “belonging,” whether popular, religious, or any other identity.  The second thesis implies that Western politics is biopolitical from the beginning, and so we cannot found political liberties in the rights of the citizen.  The third thesis can be stretched into a criticism of the way that the social sciences, sociology, urban studies, and architecture try to conceive of and organize the public space of cities, since they do this without any awareness that at the centre lies bare life.

Agamben describes a series of lives. First, there is the ancient Roman High Priest of Jupiter. Every aspect of the priest’s life was inseparable from their function as priest.  There was no gesture or detail of their life that did not have a precise meaning; for example, their clothes could not have knots in them.  The key point is that in the life of the priest, it was not possible to separate out something like a bare life; the entirety of their zoe had become bios.  The private and public were identical.

There is the bandit, or the homo sacer, who has been entirely reduced to bare life.  He is pure zoe, but must constantly reckon with the possibility of being killed, and so is caught in the sovereign ban.  No life is more political than his.

There is also the the der Muselmann, “the Muslim.”  This is concentration camp jargon for “a being from whom humiliation, horror, and fear had so taken away all consciousness and personality as to make him absolutely apathetic. . .” (185).  He was not only excluded from politics, and not only (as a Jew) a life that did not deserve to live.  He no longer belonged to the world of men in any way, not even to the camp.

We cannot quite say that the life of the Muselmann is pure zoe; no animal instincts remained, cancelled along with his reason.  One memoir wrote that they were “no longer capable of distinguishing between pangs of cold and the ferocity of the SS” (185).  If we take that literally, then the Muselmann was in a state of total indistinction between life and law, and nature and politics; “Because of this, the guard suddenly seems powerless before him, as if struck by the thought that the Muselmann’s behaviour—which does not register any difference between an order and the cold—might perhaps be a silent form of resistance” (185).  In the camp, an law that tries to transform itself entirely into life runs into a life that is totally indistinguishable from law, and that indiscernibility threatens the law of the camp.

It is on the basis of these new terrains that a new politics must be thought.  Foucault thought we might be able to use a “different economy of bodies and pleasures” as a basis for a different politics, but this will not work because the body is already biopolitical.  In its extreme forms, it is an indistinction between law and biological life.  Any attempt to rethink the fundamentals of Western politics has to begin with the fact that there is no longer any distinction between private life and public life, and we cannot return to any such distinction: “There is no return from the camps to classical politics.  in the camps, city and house became indistinguishable, and the possibility of differentiating our biological body and our political body—between what is incommunicable and mute and what is communicable and sayable—was taken from us forever” (188).

Agamben hints at a way forward, and a direction for the Homo Sacer project: “This biopolitical body that is bare life must itself instead be transformed into the site for the constitution and installation of a new form of life that is wholly exhausted in bare life and a bios that is only its own zoe” (188).  In order to conceptualize this form-of-life, we need to develop a field of research which is distinct from the intersection between politics, philosophy, medicine, biology, and jurisprudence.

By Way of Conclusion:  A Different Idea of Politics

The most obvious way to think about politics is the competition between different political parties, or the way that different groups interact with each other: the rich and the poor, men and women, or different racial groups.  We can ask which party has the best platform, or whether or not one group is dominating another (as, e.g., feminists would say about the patriarchy).  Another way to think about politics is how we are going to act as a group; which behaviors will we, as a group, sanction, or which rules we all want to officially live by.  The key point for all these ideas of politics is who will we vote for and which laws we will pass.

What Walter Benjamin, Carl Schmitt, Hannah Arendt, Michel Foucault, and Giorgio Agamben ask us to consider is whether or not these standard political categories fully describe what goes on in public life today.  Each of them, in their own way, says our everyday idea of politics takes far too much for granted.

For example, Benjamin points out that every law has to be backed up with the possibility of violence.  Anywhere there are laws—even good laws—people are potentially subject to violence.  Schmitt, for his part, thinks this quasi-dictatorial possibility of violence (in the form of an exception, like martial law) is absolutely necessary for any state to function.  If we put Benjamin and Schmitt side by side, we can see that Benjamin hopes for the possibility of a completely different way of doing politics, one that would not involve implicit violence, while Schmitt claims it is necessary.  The contingency of sovereign violence versus its necessity.

Arendt describes a historical process by which the freedom of the public realm has been conquered by the necessity of the private realm.  Whereas in previous centuries, politics was about the freedom to decide how we will leave together, now, politics has been overtaken by a sense of necessity: for example, the economy demands that we have such and such a policy.  Politics is about survival rather than freedom.  Foucault sees something similar: over the last few centuries, our individual lives have been increasingly shaped by the discipline imposed by schools and factories, while our collective lives have been increasingly regulated by the necessities imposed by health and survival.  Politics has become a biopolitics.

For both Arendt and Foucault, claims about human rights and even the power of human rationality to solve political problems are less useful than one might think.  Arendt pointed out that refugees, people who have only their universal human rights to rely on for protection from other groups, really have nothing at all.  She also pointed out that the way we speak to one another in public, in order to decide how to live together as free beings, has largely been corrupted by petty concerns and gossip.  Foucault has an even harsher criticism of rights and rationality: both, from the start, are formed by the very forms of power they are supposed to protect people from.

Agamben ties all of this together.  Western politics never had a golden age in which private concerns remained private and free subjects spoke to each other in public, and there was never a mythical social contract that binds us together under a government chosen by the people for the people.  Sovereignty has been at work since ancient Greece: sovereign power has always been about reducing people to bare, killable life, as opposed to protecting them from death and allowing them to flourish as social contract theorists think.  What is worse, this line between killable and unkillable, which is named by the term camp, has become the fundamental division of politics: we are not fundamentally divided by nationality or party, but by who is currently inside a camp, and who is currently outside a camp.

Agamben points at two lights at the end of this tunnel.  First, there is the possibility of rethinking our ideas of political potential.  Sovereign power appears to be a necessary part of politics: after all, no set of rules can govern every possible situation.  Despite this necessity, Schmitt also compares the exception to the miracle in theology; just as the miracle suspends natural law, the exception suspends the legal order.  And as said, in our time, everything is quickly becoming exceptional.  All this is dependent upon a sense of necessity in public life, even upon a metaphysical account of potentiality (like we would find in Aristotle).  However, if we reject this necessity and say that both the world as such and our collective lives are not reducible to laws, or not grounded in laws, “then the miraculous will be simultaneously neutralized and generalized such that the ordinary is acknowledged as exceptional” (Abbott, 27).  Being as such would be lived as exceptional, which is logically identical to there being no exceptions.  It is not a turn towards events as in Badiou, but a turn towards the ordinary and the everyday, especially to the ordinary as a political achievement.

Second, there is the possibility of resisting the reduction to bare life.  We can no longer depend on Arendt’s distinction between the household as the place of necessity and the city as the place of freedom, since the camp fuses the two.  However, there is still the possibility of taking thought as a common (or collective) power: here, thinking does not refer to coming up with particular thoughts or principles, but instead the capacity to always think new thoughts.  This capacity is what keeps bare life and political life together in a form-of-life, and what allows us to avoid thinking like subjects of sovereign power.

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