Agamben and Law

Thanos Zartaloudis

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351577267
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This collection of articles brings together a selection of previously published work on Agamben's thought in relation to law and gathered from within the legal field and theory in particular. The volume offers an exemplary range of varied readings, reflections and approaches which are of interest to readers, students and researchers of Agamben's law-related work.

Part I
Life and Sovereignty

1 The Fading Memory of Homo non Sacer

Schütz Anton

Has there been a time before homo sacer? A bias forfeited (proscribed, banned, vogelfrei) and stripped of significance, reduced to zero-status and at the same time unsacrificeable: how far back does the history of this life disposed and disposed-of, supplied and confiscated, go? The question is all the more inevitable as Giorgio Agamben does not subscribe to the confident gesture with which Michel Foucault assigned a date of emergence to Western modernity, a ‘birth’ of what he called ‘biopolitics’. A clean-slate type discontinuity, particularly the idea of modernity as innovation — whether the innovation is a point, or whether it extends over more than a century, makes no decisive difference here — leaves one with the possibility of a calendar, of a sequence of ages succeeding each other in one unique trajectory.

This is exactly what Agamben does not offer. Agamben’s stakes in Homo sacer are incompatible with the paradoxically soothing aspects of an approach that deconstructs the Western episode in a series of successive and independent epigenetic creations — and it would be tempting to draw the line through to Martin Heidegger on Seinsgeschichte and historiality. Although Agamben is just as wary as Foucault (from whom his work has doubtlessly received its most decisive impulse, after Heidegger) of the implications of what has become identifiable as the ‘legal’ or ‘juridical’ style of approaching politics and especially biopolitics, and is just as wary of the legalism that unconfessedly inspires a field like epistemology, the results both philosophers reach with respect to historical ‘method’ — and, far more importantly, to history itself — diverge significantly.

Foucault sees historico-political factuality as subject to watershed-like historical discontinuities, and in consequence, before his turn towards antiquity around 1980, sticks to the idea that every configuration of Western culture as we know it can be fully traced back to its modern origins. This is an idea which Foucault shared not only with a vast majority of the Western left during the second half of the twentieth century, but with the entire spectrum of ‘progressive’ elements. Agamben, on the other hand, thinks the sequence of events known as ‘Western history’ as a compassing phenomenon, as the ever unfolding history and/or pre-history of Western modernity, rather than conceiving it as a series of discrete, mutually closed incidents in the way in which Foucault does. A certain historical compromise that flourished in Foucault’s days under the sign of progressivism, and which finally became Foucault’s own target — for instance, in his critique of the repressive hypothesis, and more generally in his parting ways with Marxism — has never had any purchase on Agamben. In spite of these divergences (in part perhaps merely generational), what one should not overlook is the fact that what stops Agamben from repeating Foucault is less Foucault than those who repeat Foucault. Among the most visible theoretical steps linked, wrongly or rightly, to the name Foucault is what might be called the ‘there-is-always-something-that-happens-just-before-or-around-1800’ stance. Once a provocative move, it has, in the meantime, become a commonplace.

Audiences and minds have undergone, in the time since Foucault’s death, a rather drastic mutation which deserves to be noted, and needs to be identified. What had enjoyed massive public-intellectual credit in France, throughout the time that Foucault was teaching and writing there, was an overall conception of the way the world was moving. Let me call it the ‘leftist-humanist Janus bifrons’, and describe it as mildly Marxist and at the same time resolutely conformist. Foucault had recognised this as a mere compromise and rejected it, yet carefully avoided taking issue with it, limiting himself to making the distances clear, for instance by insisting, on a methodological level, on the superiority of small but demonstrable facts over large but false principles. Foucault opted for the model of hard-core discontinuities, both because this was heretical with respect to a prevailing intellectual consensus which he despised, and because it meant joining forces with the more ambitious, ‘anti-humanist’, forms of Marxism, such as Althusser (even if Foucault almost denies the Althusserian part of his ascendancy and presents his model on Nietzschean and subsidiarily Heideggerian premises).

In the daily business of a global academic institution evolving under the durable spell of Foucault’s work, the assumption that all constituent parts of the world as we know it are born somewhere around 1800 looms large. It has dominated the history writing of the last third of the twentieth century, for three decades of which an important part of the historical profession mainly delivered birth certificates providing an all-but-unending series of institutions, achievements, cultural configurations, etc., with the confirmation of its origin in modernity. The major innovations responsible for the world as we know it, whether technological or anthropological, scientific, pastoral or media-historical, date from somewhere before or around 1800. In 2007, there is no trace left of what might have been so irresistible about the stance underlying this claim, when, from the late 1960s onward, clad in the dignity of its provocativeness, it conquered the hearts and minds. We are here confronted with a fact pertaining to the level where the discipline of history becomes itself visible in its historicity — the ‘history of historiography’ as the great Italian and English historian Arnaldo Momigliano had famously termed it. The suggestion that we live in a short and dense — 200 year long — genealogy of modernity is predicated on a whole intellectual-political structure. This structure, with the narrow relationship that connects it to the political history, has by now melted away without remnant. French politicians who, in 2007, denounce the ‘spirit of ‘68’ are barking up the wrong tree.

One should not forget, on the other hand, that today’s absolute unavailability of a politico-legal perspective that would be at once empirically acute and ethically acceptable provides as restrictive a set of conditions as did its earlier availability. The question here is simply whether the politically motivated philosophical thought reacts to situations. If our answer is yes, as it is, we cannot mimic surprise, when such a difficult question as to what happened during the past two or three millennia of Western history will, in different and incompatible historical circumstances, elicit different and incompatible replies.

The point at stake here is not, obviously, the discrepancy between Foucault’s and Agamben’s historical perspectives regarding, for instance, biopolitics. Only — as their views are not simultaneous, but responding to different situations — what becomes undecidable is whether the discrepancy represents opposite viewpoints or rather different points in the history of a common, even identical project. If one compares the present tense of Foucault’s years to the present tense of the ten or twelve years preceding 2007, the one characterised by prisoner revolts, homosexual militancy and strike movements (to name only a few fronts of action), the other by their pacification and integration into institutional everyday life, even their cancellation out under the impact of new policies of ‘outsourcing conflict’ (of which the war in Iraq is an example) — it becomes much less surprising that even identical views might give rise to different positions, or at any rate to different ‘prises-de-position’.

Such a comparative exercise in present or short-term history is able to show that philosophical thought, like everything else, has within its present a specific Sitz-im-Leben which conditions its existence. Contrary to the assumptions of a certain history of ideas the compatibility of different discourses within the social fabric is not nearly as unproblematic as that of books on a bookshelf. It is true, by the way, that even different minds are not always compatible, pace Foucault (who, as it is well known, was interested in that and only that which makes it to historical visibility — minds were thus of interest to him only to the extent to which they succeed in making themselves seen at the surface of history — of discourse). The Sitz-im-Leben of Foucault’s lesson was quite inseparable from those contemporaneous militancies and movements, which it would be difficult to hold, today, that they have fully survived. Yet, apart from Foucault’s methodological specificities, there are other, possibly even more massive differentiating factors. The media have changed their presence, increasing their strict economic dependency, while at the same time intensifying their role as laboratory of election results. The university has changed its structure. Most importantly, there had been a general conviction, half a lifetime ago, which was omnipresent and unproblematic, and which concerned something like the Western global stewardship, which was firmly in place both in its ethico-political principle and in its geopolitical invulnerability.

It helps also to understand Foucault’s polemical foregrounding of discontinuities, his emphasis on the succession of epistémés, etc. Foucault took up an active resistance against an omnipresent preference for continuities if not for ‘transhistoric objects’ (Paul Veyne), which, he felt, loomed large in his times. Superficially, that was of course owing to Marxism and is no longer the case. It is true that, throughout the modern age, consensuses — when ‘alive and kicking’ — tend to modesty and low-key appearances, to painting their own self-portraits in unremarkable colours: consensus larvatus prodit, to paraphrase Descartes. What is common to Foucault’s times, forty to twenty-five years ago, and our own, is that both are characterised by the presence of views widely shared, indeed incontrovertible and sacrosanct enough to deny their specificity, their historicity, their merely ‘artificial’ consistency. Their content is, however, hugely different. The factor which Foucault was up against was a ‘natural-looking’ certainty predicated on continuity; this is scarcely what we find ourselves confronted by today. Today — and if this is not taken into consideration, there is simply no way to understand the history-related moves of an author like Agamben — similar effects emanate, on the contrary, from a post-natural certainty that emerges as a supplement of globalised technology. A different, if equally mythological, horizon has opened up, one based upon the idea that global self-programming is already in charge, that needs are already provided for, that life is a question of access to these provisions, that the age of Nature — or, more generally, the age of default-regimes or continuities — lies behind us. In certain respects, the well-known claims that we have outlived history is indistinguishable from the claim that we have outlived Nature.

In this new setting, not continuity, but its opposite — namely media-imposed discontinuity — is accredited wisdom. In Foucault’s time, the category of ‘man’ was only the most flagrant example of a whole range of continuous or long-term history-related stable categories. In the view that had been omnipresent, as something like a silent anthem, in classrooms, textbooks and all types and sizes of secularised successors to churches, man was the ultimate site of normativity, tautology or ‘non-learning’. It was subversive to maintain, at the time, what Foucault maintained: namely, that history is best understood as empty, as the indifferent whiteboard on which successive inscriptions succeed each other without beginning or end. Today — and no doubt partly owing to the success of Foucault’s claims — what underlies the ubiquitous anthem is no longer a claim or promise of an integrity placed in ‘man’. Instead, it is predicated on the disclaimer of any claim, the cancellation of any promise or common horizon, of any feature, in short, that would transcend the timelessly present network of real-time performances.

It suffices to draw attention to these changed conditions and to what one might call the new empire of bare performance which results from them, in order to glimpse why the choice of following Foucault in matters of strict historicity is today intellectually sterile, why the ‘from-something-around-1800-onward’ stanza has lost the subversive potential which it commanded a lifetime ago, and why modernity-historicism (or postmodernism) is, in fact, today’s stale equivalent of the stale humanism of the first post-Second World War decades. That is, it is part and parcel of the stew of outlived programmes that constitute the retrospective scholastic menu of 2007, so different from earlier versions of the retrospective scholastic stew both in its ingredients and in its overall fragrance. With respect to Foucault, the step taken by Agamben is predicated on the undoing of the strict historical time-setting of a group of basic Foucauldian categories — biopolitics being among them. Wherever an undoing of a previously conquered and proudly asserted position is pursued in the history of politico-legal thought, it immediately gives rise to further questions. While some ask how to welcome it, others how to protect themselves against it, there are also more important issues, such as: why at all? why now? why here? why in this connection and not another one?

In comparative perspective, Agamben’s criticism of Derrida is unquestionably much more complicated and philosophically complex than his sharp, yet also sharply circumscribed, ‘otherwise than Foucault’ move. What is obvious is Agamben’s unrestricted admiration of deconstruction as a philosophical method that, by means of its infinite renvoi to a text without outside, makes ‘opinionating’ irrelevant and unnecessary. Agamben’s admiration, which coexists with his philosophical critique of the deconstructive approach, has an important role to play, even in the historical parts and aspects of his work, and especially with regard to the regions of biopolitics, bare life and homo sacer. One of the more astonishing features of the history of global French philosophy in its Foucault/Deleuze/Derrida moment — as opposed to its Badiou/Rancière moment — was the incessant and faithful general respect paid to the demarcation lines which these thinkers succeeded in drawing between each other. While some moderate amount of frontier traffic between Foucault and Deleuze has existed for a long time, the number of border-crossings between these authors, on the one hand, and the Derridians, on the other, had been minimal and was limited — as far as I see without exception — to the one early dispute about Descartes, philosophy and madness.¹

Although he never refers, as far as I can tell, to this canonical dispute, Agamben in one sense takes side with Derrida against Foucault’s commitment to sharp historicisation. If Agamben, while taking up a large number of Foucault’s claims, no longer assumes that the constituent parts of the world as we know it were born somewhere around 1800, it is at least tempting to see a passionate refusal on the part of Agamben to take on the idea that one ‘has to choose’. Derrida’s reaction to Foucault, directed against the historicisation of madness, is epitomised by the claim that philosophy has always involved as perilous and close a contact to the other side of Reason as did madness at the brink of modernity. Agamben, similarly, argues that biopolitics had emphatically not waited for modernity to set in: neither for the emergence of the modern practice of governance/discipline, nor f...

Table of contents

• Cover
• Half Title
• Titles in the Series
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Preface
• Introduction
• Part I Life and Sovereignty
• 1 The Fading Memory of Homo non Sacer
• 2 Homo Sacer and the Politics of Indifference
• 3 THE RULE OF THE NORM AND THE POLITICAL THEOLOGY OF “REAL LIFE” IN CARL SCHMITT AND GIORGIO AGAMBEN
• 4 NO LIFE IS BARE, THE ORDINARY IS EXCEPTIONAL: GIORGIO AGAMBEN AND THE QUESTION OF POLITICAL ONTOLOGY
• Part II State of Exception and Government
• 5 Boundary Stones Giorgio Agamben and the Field of Sovereignty
• 6 GIORGIO AGAMBEN ON SECURITY, GOVERNMENT AND THE CRISIS OF LAW
• 7 The Ontology and Politics of Exception Reflections on the Work of Giorgio Agamben
• 8 ‘The king reigns but he doesn’t govern’ Thinking sovereignty and government with Agamben, Foucault and Rousseau
• 9 Imperatives Without Imperator
• Part III Law, Violence and Justice
• 10 On Justice
• 11 The Creature before the Law
• 12 Playing with Law: Agamben and Derrida on Postjuridical Justice
• 13 The Hyper-Hermeneutic Gesture of a Subtle Revolution
• 14 THE THRESHOLD AND THE TOPOS OF THE REMNANT
• Part IV Fulfilling the Law: The Power of Experience
• 15 Passivity at Work. A Conversation on an Element in the Philosophy of Giorgio Agamben
• 16 Resistance, Potentiality And The Law
• 17 In a Messianic Gesture: Agamben’s Kafka
• 18 The curse of the law and the coming politics On Agamben, Paul and the Jewish alternative
• 19 THE UNGOVERNABLE
• Part V Studying the Law
• 20 Thinking The Law With And Against Luhmann, Legendre, Agamben
• 21 In Force Without Significance: Kantian Nihilism and Agamben’s Critique of Law
• 22 Agamben, Arendt and human rights: Bearing witness to the human
• 23 The Mask and Agamben: the Transitional Juridical Technics of Legal Relation
• 24 Political Life: Giorgio Agamben and the Idea of Authority
• 25 KAFKA’S LAND SURVEYOR K.
• 26 What is a destituent power?
• Name Index