Politics, Metaphysics, and Death: Essays on Giorgio Agamben's Homo Sacer 0822335255, 9780822335252

Table of contents :
Contents
Acknowledgments
Introduction: Giorgio Agamben and the Politics of the Living Dead by Andrew Norris
Au Hasard by Thomas Carl Wall
Bare Sovereignty: Homo Sacer and the Insistance of Law by Peter Fitzpatrick
S/Citing the Camp by Erik Vogt
The Sovereign Weaver: Beyond the Camp by Andreas Kalyvas
Anagrammatics of Violence: The Benjaminian Ground of Homo Sacer by Anselm Haverkamp
Spacing as the Shared: Heraclitus, Pindar, Agamben by Andrew Benjamin
Cutting the Branches for Akiba: Agamben's Critique of Derrida by Adam Thurschwell
Linguistic Survival and Ethicality: Biopolitics, Subjectivation, and Testimony in Remnants of Auschwitz by Catherine Mills
Supposing the Impossibility of Silence and of Sound, of Voice: Bataille, Agamben, and the Holocaust by Paul Hegarty
Law and Life by Rainer Maria Kiesow
The Exemplary Exception: Philosophical and Political Decisions in Giorgio Agamben's Homo Sacer by Andrew Norris
The State of Exception by Giorgio Agamben
Contributors
Index

Citation preview

politics, metaphysics, and death

Edited by andrew norris

politic s, metaphysic s, and death Essays on Giorgio Agamben’s Homo Sacer Duke University Press durham and london 2005

2nd printing, 2005 ∫ 2005 Duke University Press All rights reserved Printed on acid-free paper $ Typeset in Quadraat by Keystone Typesetting, Inc. Library of Congress Cataloging-in-Publication Data and republication acknowledgments appear on the last printed page of this book.

contents

Acknowledgments vii Introduction: Giorgio Agamben and the Politics of the Living Dead andrew norris 1 Au Hasard thomas carl wall 31 Bare Sovereignty: Homo Sacer and the Insistence of Law peter fitzpatrick 49 S/Citing the Camp erik vogt 74 The Sovereign Weaver: Beyond the Camp andreas kalyvas 107 Anagrammatics of Violence: The Benjaminian Ground of Homo Sacer anselm haverkamp 135 Spacing as the Shared: Heraclitus, Pindar, Agamben andrew benjamin 145 Cutting the Branches for Akiba: Agamben’s Critique of Derrida adam thurschwell 173 Linguistic Survival and Ethicality: Biopolitics, Subjectivation, and Testimony in Remnants of Auschwitz catherine mills 198 Supposing the Impossibility of Silence and of Sound, of Voice: Bataille, Agamben, and the Holocaust paul hegarty 222

Law and Life rainer maria kiesow 248 The Exemplary Exception: Philosophical and Political Decisions in Giorgio Agamben’s Homo Sacer andrew norris 262 The State of Exception giorgio agamben 284 Contributors 299 Index 301

a c k n ow l e d g m e n t s

In the long course of preparing this collection I have received a lot of help. I owe a special debt to Tom Dumm for his friendly guidance and unflagging support. I should also like to thank the contributors, my editor Courtney Berger, Kevin Attell, Adam Bull, Judith Butler, Fred Dolan, Adam Franklin, Willie Gin, Daniel Heller-Roazen, James Noggle, Anne Norton, Tom Rockmore, Simona Sawhney, Hans Sluga, James Wallenstein, Eric Wilson, Meredith Wooten, and my family. My colleagues at the Department of Political Science of the University of Pennsylvania have been extremely generous and helpful throughout, as have the directors of the Max Planck Institute for European Legal History in Frankfurt, where much of my own work was done. My greatest debt, however, is to Yasemin Ok Norris, whose advice and encouragement helped make this project possible, and whose love and friendship made it worthwhile.

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introduction Giorgio Agamben and the Politics of the Living Dead Death is most frightening, since it is a boundary. —Aristotle, Nicomachean Ethics And as the same thing there exists in us living and dead and the waking and the sleeping and young and old: for these things having changed round are those, and those having changed round are these. —Heraclitus, Fragment ∫∫

What is politics today? What is its relationship to the tradition from which it emerges? These questions are di≈cult ones to answer, in part because contemporary politics seems so schizophrenic. In a√luent Western countries politics is increasingly a matter of spectacle on the one hand and managed economies on the other.∞ Hannah Arendt seems quite confirmed in her claim that the once-glorious public realm of appearance is fundamentally degraded when it is overrun by concerns more appropriate to the private realm, such as household management and gossip. If this ‘‘unnatural growth of the natural’’≤ inclines us toward nostalgia for a time when the two realms were more decisively separated, such nostalgia is likely intensified by the ‘‘ethnic cleansing,’’ rape camps, and genocide that we now associate with names such as Yugoslavia and Rwanda. But as improbable as any flight to the past may be, it is even less likely that the politics of that past could help us navigate the treacherous waters of our current technological society. I have in mind not only the familiar claim that the attempted genocides of our time are made possible only by quite modern forms of technology, organization, and experience,≥ but also recent scientific and ‘‘medical’’ advances. Consider just two: first, the corporate-driven and controlled development of biotechnologies, in which huge multinationals are acquiring patents to genetic ‘‘information’’ such as ‘‘all human blood cells that have come from the umbilical cord of [any] newborn child.’’ If there are any doubts that such developments will lead us to redefine the human being, these may be laid to rest by the case of John Moore, an Alaskan businessman who found his own body parts had been patented, without his knowledge, by the University of California at Los Angeles and licensed to the Sandoz Pharmaceutical Corpo1

ration.∂ So much for Locke’s attempt to ground the institution of private property in the fact that ‘‘every Man has a Property in his own Person’’!∑ In its place we seem to be moving toward something more like the ‘‘logical synthesis of biology and economy’’ called for by the National Socialist Institut allemand in Paris in 1942.∏ A similar process of redefinition is already under way in the field of death, a phenomenon that scientists and lawyers are having a harder and harder time pinning down. Where once death was defined by the cessation of the movement of the heart and lungs, recent life support technologies have forced scientists to define death in terms of such technologies. Witness Doctor Norman Shumway’s defense of the definition of death as brain death: ‘‘I’m saying that 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’’ (163). By implication, if and when technology is developed that allows for brain transplants, even those whose brains are ‘‘dead’’ will be brought back to some kind of life, perhaps as organ farms for others who are less ambiguously alive. Giorgio Agamben, from whose Homo Sacer: Sovereign Power and Bare Life I take both this last grisly example and its analysis, argues that, contrary to appearances, such developments do not represent a radical break with the tradition. His analysis both builds upon and corrects Michel Foucault’s claim that politics in our time is constituted by disciplines of normalization and subjectification that Foucault labels ‘‘biopower.’’ For Foucault, at least most of the time, biopower is primarily a modern phenomenon. ‘‘What might be called a society’s ‘threshold of modernity,’ ’’ he writes, ‘‘has been reached when the life of the species is wagered on its own political strategies. For millennia, man remained what he was for Aristotle: a living animal with the additional capacity for political existence; modern man is an animal whose politics places his existence as a living being in question.’’π This passage seems to imply not only that modernity is political in a di√erent way than the previous millennia had been, but that it is more political, even essentially so. If politics was an ‘‘additional capacity’’ with Aristotle, now politics is of our essence, and life has become its object. Agamben echoes such claims at times, and argues, for instance, that ‘‘the politicization of bare life as such . . . constitutes the decisive event of modernity and signals a radical transformation of the political-philosophical categories of ancient thought’’ (4). But he also maintains that this transformation is made possible by the metaphysics of those very ancient categories. As in Nietzsche’s discussion of nihilism, on Agamben’s analysis, biopolitics 2

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fulfills the potential of its origin in turning against that origin.∫ Hence, Agamben argues against Foucault that life in some sense always has been the definitive object of politics. His argument begins with a review of Aristotle’s distinction, in the first book of the Politics, between bare life (to zen) and the good life (to eu zen): ‘‘we may say that while [the polis] grows for the sake of mere life, it exists for the sake of a good life.’’Ω Agamben argues that this distinction has served as the foundation of the Western tradition of political philosophy, in that politics has been distinguished from essentially private enterprises on the grounds that it is concerned with something more than the perpetuation of biological life. Because the end of politics is different from that of the various realms of bare life, such as family life, slave holding, and village association, its principle of order is di√erent as well. For Aristotle the ‘‘something more’’ that distinguishes the political is the realization of the human capacity to structure a just common life in the community’s noncoercive, deliberative reflection upon the question of what justice is, and what concrete measures it entails: ‘‘Justice belongs to the polis; for justice, which is the determination [krisis] of what is just, is an ordering of the political association.’’∞≠ For all of their disagreements, the vast majority of contemporary political philosophers are united in their commitment to this self-reflexive project, and to its identification of politics as the sphere in which conceptions of justice are organized and pursued.∞∞ Agamben, however, suggests that this politico-philosophical project today stands without the foundations that Aristotle proposed for it, namely the categorical distinction between bare life and the good or political life. And this is not because an element foreign to Aristotle’s schema has polluted or subverted it, but because the schema has deconstructed itself.∞≤ What is the instability here that would allow for this? When we read the first book of the Politics it appears that Aristotle is laying out a chronological account of the rise of the polis. Human beings began living in families, then they acquired slaves and formed villages, until finally they achieved a selfsu≈cient [autark¯es] mode of life. But to treat this as nothing more than a history is to misunderstand the nature of the boundary that human beings cross when their community becomes self-su≈cient, and to assume, as Foucault does in the passage cited above, that political life can be simply added on to human life. Aristotle, however, expressly denies this: ‘‘The man who is isolated—who is unable to share in the benefits of political association, or has no need because he is already self-su≈cient—is no part of the polis, and must therefore be either a beast or a god.’’∞≥ To be truly human one introduction

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must be a member of a polis, for it is only as such that one can truly speak: ‘‘The mere making of sounds serves to indicate pleasure and pain, and is thus a faculty that belongs to animals in general. . . . But language serves to . . . declare what is just and unjust.’’∞∂ This conception of the human life as not simply a given but an achievement is definitive of the notion of human culture. Most of us tend, however, to consider only the good and just life to which we aspire. Agamben in contrast focuses on the life that fails to achieve humanity—the remains, as it were, of our becoming moral, just, and political. I say ‘‘as it were,’’ because ‘‘mere life’’ cannot truly be exuviated. It too is human life, though perhaps not fully so. In his discussion of Aristotle’s Politics Agamben argues that ‘‘politics . . . appears as the truly fundamental structure of Western metaphysics insofar as it occupies the threshold on which the relation between the living being and the logos is realized. In the ‘politicization’ of bare life—the metaphysical task par excellence—the humanity of living man is decided [si decide]. . . . There is politics because man is the living being who, in language, separates and opposes himself to his own bare life [nuda vita] and, at the same time, maintains himself in relation to that bare life in an inclusive exclusion [un’ esclusione inclusiva]’’ (8).∞∑ ‘‘Threshold’’ is a word which occurs again and again in Agamben’s texts, and it invariably signifies a passage that cannot be completed, a distinction that can be neither maintained nor eliminated.∞∏ The fundamental political distinction between bare life and the good, just life lived in accordance with the logos proposes humanity as a project, one of self-overcoming. But this project, as such, relies upon ‘‘the exclusion (which is simultaneously an inclusion) of bare life.’’ Bare life is a necessary part of the good life, in that the good life is both what bare life is not and what bare life becomes, ‘‘as if politics were the place in which life had to transform itself into good life and in which what had to be politicized were always already bare life’’ (7). According to Agamben, this is not a dialectic between two comparable moments of the human, for it is only political life that is truly lived in language, that can truly speak. Bare life is mute, undi√erentiated, and stripped of both the generality and the specificity that language makes possible. If it is related and compared and evaluated, that is always in the terms and in the service of what it is not: political life. But since political life defines itself in terms of its genesis from and its nonidentity with bare life, political life is defined by its relation with the nonrelational.∞π ‘‘Exteriority . . . is truly the innermost center of the political system, and the political system lives o√ it’’ (36). 4

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This account of the inclusive exclusion of bare life in the metaphysics of politics can be seen as a more radical version of Arendt’s paradoxical claim in The Origins of Totalitarianism that ‘‘a man who is nothing but a man has lost the very qualities which make it possible for other people to treat him as a man.’’∞∫ Similarly, Agamben’s more radical account of the logic at work here has obvious a≈nities with and debts to Hegel’s analysis of the law of identity as a self-contradictory principle that, as such, proves to be a law of contradiction: those who assert the principle ‘‘A = A . . . do not see that in this very assertion they are themselves saying that identity is di√erent; for they are saying that identity is di√erent from di√erence; since this must at the same time be admitted to be the nature of identity, their assertion implies that identity, not externally, but in its own self, in its very nature, is this, to be di√erent.’’∞Ω The resulting concept of negation is for Hegel the engine of history, and as such it allows him to reconcile his claim that history progresses with the evident fact that the most glorious and praiseworthy empires are inevitably ground under in the course of that progress. Negation as the dialectical and historical movement of Reason thereby ultimately produces or reveals itself to be a harmonious, rational totality. In contrast, on Agamben’s account, the Aufhebung of politics is never achieved: bare life and political life are never reconciled, and political life’s every attempt—the attempt that defines political life—to mediate its own relationship with the life that it is not fails in the end. More significant than the di√erences between Agamben and Hegel is the fact that for both it is the movement through negation that is essential, not the fiction of a static result. Hence, on Agamben’s account, politics must again and again enact its internal distinction from bare life. It must repeatedly define itself through the negation of bare life—a negation that can always take the form of death.≤≠ The analysis of the metaphysical movement of the living being ‘‘into’’ language that undergirds these claims has been an ongoing concern of Agamben’s.≤∞ His earlier Language and Death: The Place of Negativity investigates the metaphysical connection between human mortality and the human capacity for language particularly as it is delineated in Heidegger and Hegel. Agamben begins the book by citing the former’s claim (from On the Way to Language) that ‘‘mortals are they who can experience death as death. Animals cannot do so. But animals cannot speak either. The essential relation between death and language flashes before us, but remains unthought.’’ He goes on to try to ‘‘think’’ this relation through a consideration of the originary nature of negativity in Heidegger’s thought of Da-sein and Hegel’s introduction

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thought of the Diese, and argues that ‘‘both the ‘faculty’ for language and the ‘faculty’ for death, inasmuch as they open for humanity the most proper dwelling place, reveal and disclose this same dwelling place as always already permeated by and founded in negativity.’’≤≤ Just as ‘‘the limit of language always falls within language’’ such that it ‘‘is always contained within as a negative,’’ so death both is and is not ‘‘an event of life.’’≤≥ Because of this structural parallel, death assumes a privileged place in the logic of the ‘‘meaning’’ of human life. As in the passage cited from Heidegger, and as in Heidegger’s early insistence that the authentic or proper response to human mortality entails heeding the silent call of conscience, death shows what language can never say, and in so doing serves as the revelation of the negative ground of the human.≤∂ The two moments of the ‘‘speaking animal’’ are thereby cast into an endless struggle: ‘‘from the dawn of Greek thought, the human experience of language (that is, the experience of the human as both living and speaking, a natural and a logical being) has appeared in the tragic spectacle divided by an unresolvable conflict.’’ The form this conflict takes is that of the sacrificial violence that serves as the ungrounded ground of all praxis.≤∑ Homo Sacer advances this analysis in at least two ways: in its reflections upon the kind of ‘‘life’’ that is involved in this process, and in its consideration of the distinctively political aspect of this movement. In Language and Death the metaphysical movement into a relationship with the logos does not essentially involve the living body, nor does Agamben spend much time drawing out the implications of this metaphysics for the body.≤∏ The names Foucault, Arendt, and Schmitt—each of which figure prominently in Homo Sacer—do not appear, and when Agamben does speak of the practical implications of metaphysics (that ‘‘which enacts the experience merely shown by logic’’≤π) he speaks of ‘‘ethics’’ repeatedly, and only two or three times of ‘‘politics.’’≤∫ Nonetheless, the development and extension of the analysis does not alter its fundamental structure. The terms of this discussion make plain Agamben’s debt to Heidegger. In so doing, they open his analysis to the threat of quiet dismissal by political theorists, many of whom are wearied by the abstractness and the density of this language. In this regard it is crucial to note how well Agamben’s analysis accounts for otherwise obscure features of canonical texts that he himself ignores. We might begin by comparing the passages from Aristotle upon which Agamben focuses with Socrates’s strikingly similar claim in the Crito that ‘‘the really important thing is not to live, but to live well.’’≤Ω This claim is in fact the central move in Socrates’s justification of his active participation 6

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in his own execution. He in other words enacts the sacrifice of bare life that the prioritization of the good life entails. Aristotle’s use of this formulation to describe a political life that is meant to endure on both the level of biology and of virtue is obviously more problematic—a fact that may go some way toward explaining Aristotle’s own celebration of the kalos death. Nor is this the only such moment in the Platonic corpus. We might consider as well the second book of Plato’s Republic: this gives us as clear a picture of politics as the metaphysical movement described by Agamben as any other, generating as it does a just city from the inadequacies of Adeimantus’s ‘‘city in speech,’’ a city whose exclusive focus upon the satisfaction of bodily need prohibits Socrates and his companions from discerning the nature and origin of justice. In the first book of the Republic, justice is tentatively associated with trade and with interstate conflict (332e, 333a).≥≠ Trade is present in Adeimantus’s city, as is at least the abstract possibility of war (372b), so one might assume that justice will be as well. Yet Socrates hesitates to say this. When he asks ‘‘where . . . would justice and injustice be’’ (371e) in such a city, Adeimantus replies, ‘‘ ‘I can’t think, Socrates, . . . unless it’s somewhere in some need these men have of one another’ ’’ (372a). Though this sounds very like the picture we ultimately get, in which justice is a matter of the internal structure of the city, where each person does his own, proper task, and each particular finds its meaning and its satisfaction in the balanced whole, Socrates hardly embraces Adeimantus’s tentative, initial formulation with enthusiasm. ‘‘ ‘Perhaps what you say is fine,’ ’’ he replies. ‘‘ ‘It must really be considered and we mustn’t back away’ ’’ (372a). The considerations that follow, however, are entirely circumscribed by the guiding assumptions of the city’s founder concerning need and satisfaction, and they produce nothing more than an almost comically banal list of the material arrangements of the city, its procreation and its production and consumption of ‘‘bread, wine, clothing, and shoes’’ (372a). It is at this point that Glaucon loses patience and objects that this is no human city at all. When Socrates takes up Glaucon’s suggestion that they must consider a city that is driven by the desire to satisfy more than the needs of mere life, he notes that ‘‘ ‘in considering such a city . . . we could probably see in what way justice and injustice naturally grow in cities’ ’’ (372e). Why have they not been able to do so up to now? Why does Socrates imply that Adeimantus’s answer was inaccurate, because they were not in a position to answer the question of justice? The answer is that he has silently accepted Glaucon’s criticisms of the city of mere life. This acceptance is implied when introduction

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Socrates says of pigs: ‘‘ ‘This animal wasn’t in our earlier city—there was no need—but in this one there will be need of it in addition’ ’’ (373c). For Socrates to say this of the city Glaucon has moments before termed ‘‘a city of sows’’ would appear to be an ironic confirmation of Glaucon’s objection: it is unlikely that Socrates believes pork to be strictly necessary to the feverish life of luxury. It is more likely that he says pigs were unnecessary in the ‘‘healthy’’ city because, as Glaucon claims, the citizens themselves were pigs. This silent agreement leads Socrates to help in the constitution of Glaucon’s ‘‘feverish’’ city, where the aspiration to satisfy more than the needs of life will require the sacrifice of life in war. It is this city which ultimately issues forth the just city which, as a just city, literally breeds its inhabitants—that is to say, a city which self-consciously reenacts the genesis of the just life from bare life. Indeed, Socrates calls for more than simple breeding: the political ‘‘art of judging’’ is in fact made possible by an ‘‘art of medicine,’’ the practice of which involves the doctor ‘‘let die the ones whose bodies are [corrupt], and the ones whose souls have bad natures and are incurable, they themselves will kill’’ (409e–410). Socrates here openly accepts that his biopolitics must at the same time be a thanatopolitics. Here, perhaps more clearly than in the few lines from Aristotle upon which Agamben focuses, we can see that Arendt is both exactly right and exactly wrong when she argues that ‘‘politics is never for the sake of life.’’≥∞ It is the movement from bare life to political life that defines both bare life and political life. Politics thus entails the constant negotiation of the threshold between itself and the bare life that is both included within and excluded from its body. But such a threshold is hopelessly unstable, as is signaled by the fact that politics is both the passage from bare life to itself and what lies beyond this passage.≥≤ The titles of the three parts of the first volume of Agamben’s Homo Sacer mark the di√erent moments of its unraveling: ‘‘The Logic of Sovereignty,’’ ‘‘Homo Sacer,’’ and ‘‘The Camp as Biopolitical Paradigm of the Modern.’’ With the rise of sovereignty we witness the constitution of a political authority that corresponds to the ambiguities of this threshold more closely than did the polis. Sovereignty, on this account, is not simply a moment of the rise of the nation-state, but instead an expression of the inner dynamics of the logic of politics. Agamben here follows Carl Schmitt’s analysis of the sovereign as ‘‘he who decides on the exception.’’ As Agamben notes, the word exception (l’eccezione, or die Aus-nahme), ‘‘according to its etymological root’’ refers to what is ‘‘taken outside (ex-capere), and not simply excluded’’ (18). The sovereign, in other words, has the legal authority 8

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to decide who shall be removed from the purview of law, as in a state of martial law or the Schmittian state of emergency. Sovereignty is the law’s threshold with the nonlegal; as Schmitt writes, it is ‘‘a borderline concept . . . one pertaining to the outermost sphere.’’≥≥ It is the point at which the law enters into relation with that which has no legal standing. In identifying the threshold between the legal and the nonlegal, sovereignty defines them both. This is perhaps clearer in Schmitt’s text than in Agamben’s. ‘‘There is,’’ Schmitt writes, ‘‘no norm applicable to chaos. For a legal order to make sense, a normal situation must exist, and he is sovereign who definitively decides whether this normal situation exists.’’≥∂ A state of emergency is the product of the collapse of the normal order; but the normal order itself is to begin with only the absence of a state of emergency.≥∑ Agamben’s gloss on this is that ‘‘the exception does not subtract itself from the rule [regola]; rather, the rule, suspending itself, gives rise to the exception and, maintaining itself in relation to the exception, first constitutes itself as a rule. . . . The sovereign decision of the exception is the originary juridicopolitical structure on the basis of which what is included in the juridical order and what is excluded from it acquire their meaning’’ (18, 19). He concludes from this that ‘‘what emerges in the limit figure is the radical crisis of every possibility of clearly distinguishing between membership and inclusion, between what is outside and what is inside, between exception and rule’’ (25). As Schmitt puts it, ‘‘all law is ‘situational law.’ ’’≥∏ Once the rule acknowledges that it gives rise to exceptions for which it cannot legislate, every case can, in principle, be understood in these terms. The only way to avoid this conclusion is to argue that, even in those cases in which the rule cannot legislate, it still does legislate in some impoverished sense, regulating what it cannot subsume. But this is in e√ect to deny the reality of the exception and the need of the legal order for a sovereign decision upon it.≥π With the rise of sovereignty we witness the rise of a form of life that corresponds to it. ‘‘The sovereign sphere is the sphere in which it is permitted to kill without committing homicide and without celebrating a sacrifice [sacrificio], and sacred life [sacra]—that is, life that may be killed but not sacrificed—is the life that has been captured in this sphere’’ (83). Agamben does not define the sacred in terms of ‘‘what is set apart for worship of the deity.’’ He is interested in the more fundamental question of the logic of sacrifice (from Latin sacrificium, from sacr- , sacer, holy, cursed) as revealed in the life that is sacred (from Latin sacrare, also from sacr- , sacer). What Agamben terms sacred life is, like the sovereign, both within and without the legal order—or, as its etymology introduction

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suggests, both holy and cursed. It is inside the legal order insofar as its death can be allowed by that order; but it is outside it insofar as its death can constitute neither a homicide nor a sacrifice. But where sovereignty is a form of power that occupies this threshold, sacred life is nothing more than a life that occupies this threshold, a life that is excluded and included in the political order. Here this takes the form not, as in Aristotle, of a metaphysical puzzle, but rather of a mute helplessness in the face of death. ‘‘Sacredness is . . . the originary form of the inclusion of bare life [nuda vita] in the judicial order, and the syntagm homo sacer names something like the originary ‘political’ relation, which is to say, bare life insofar as it operates in an inclusive exclusion as the referent of the sovereign decision’’ (85). This is the explicit revelation of the metaphysical requirement that politics establish a relation with the nonrelational. The sovereign decision is the realization of the ambiguity of the distinction between bare and political life. It is law (political life) that is not law (insofar as it steps outside of the strictures and limitations of formal law) dealing with bare life (that is, nonpolitical life), and insofar as it does so that nonpolitical (bare) life it treats is political. The result is the paradox of a sacrifice that is dedicated to no legal or religious end (114) but which participates in and a≈rms the economy or logic of the legal/religious system as a metaphysical, political system. Where in René Girard’s superficially similar account of sacrifice the victim is a scapegoat for the murderous desires of the community that unites around her, here the stakes are considerably higher. Instead of an act of self-protection on the part of the community,≥∫ sacrifice is the performance of the metaphysical assertion of the human: the Jew, the Gypsy, and the gay man die that the German may a≈rm his transcendence of his bodily, animal life.≥Ω Contemporary instances of this threshold life abound, from refugees and people in concentration camps, to ‘‘neomorts’’ and figures in ‘‘overcomas’’ whom we are tempted to turn into organ farms. Perhaps the clearest example is that of people in camps forcibly subjected to extreme medical tests and prisoners who have been condemned to death who are asked to ‘‘volunteer’’ for the same: The particular status of the VPs [Versuchspersonen] was decisive: they were persons sentenced to death or detained in a camp, the entry into which meant the definitive exclusion from the political community. Precisely because they were lacking almost all the rights and expectations that we characteristically attribute to human existence, and yet were still biologi10

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cally alive, they came to be situated at a limit zone between life and death, inside and outside, in which they were no longer anything but bare life. Those who are sentenced to death and those who dwelt in camps are thus in some way unconsciously assimilated to homines sacres, to a life that may be killed without the commission of homicide. Like the fence of the camp, the interval between death sentence and execution delimits an extratemporal and extraterritorial threshold in which the human body is separated from its normal political status and abandoned, in a state of exception [in stato di eccezione], to the most extreme misfortunes. (159) When, in the United States, men condemned to death have been o√ered the possibility of parole in exchange for ‘‘volunteering’’ to undergo tests that could not be imposed upon those with full rights of citizenship (156–57), the reasoning was quite understandable, and even attractive in its economy and ‘‘fairness’’: Given that the person has been condemned to die, he has essentially already lost his life. As far as the law is concerned his life is no longer his own, and in that sense he is a ‘‘living dead man’’ (131). Hence there will be no crime against him if his life is ‘‘lost’’ again. But neither will that death be the imposition of the death penalty. Indeed, it is precisely insofar as he awaits execution that he remains alive: his life remains only to be taken from him in the moment of punishment. Death in the experiment thus reveals the paradoxes of death row as a sphere that delayed penalty makes possible, that of the threshold between life and death.∂≠ When the threshold of death row holds more than one or two victims, the result is the camp. Historically developing out of martial law, it is itself an included exclusion from the penal system (20, 166–67). If the Aristotelian distinction between polis life and bare life with which we began was meant to secure and define the human, the total politicization of life that is the camp signals the collapse of this project. Agamben’s characterization can be understood as an attempt to more systematically work out Arendt’s paradoxical claim that ‘‘life in the concentration camps . . . stands outside of life and death.’’∂∞ Here the exception becomes the norm—or, to be more precise, the distinction between the two is wholly e√aced. ‘‘The camp is the space of this absolute impossibility of deciding [decidere] between fact and law, rule and application, exception and rule, which nevertheless incessantly decides [decide] between them’’ (173). In the name of the health of the body of the nation, in the attempt to produce a single and undivided people (179), and in response to the decision of the Führer, whose own body has itself become introduction

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one with the law (184), the nation takes on the endless task of its selfdelineation; that is, it moves into the threshold that defines it, a threshold that has awaited it since Aristotle’s Politics. Now, the mere existence of camps and of Versuchspersonen does not in itself signal the need for as sweeping and fundamental a critique of the tradition as Agamben’s. For one might well conclude that what is called for is simply a reassertion of human rights as understood by the tradition; or, to put the point on the explanatory level, that the genocides and rape camps of contemporary politics are conceptually of a piece with the transgressions of James II and other ‘‘Beasts of Prey’’ and ‘‘noxious creatures.’’ After all, Agamben himself characterizes the Versuchspersonen in just these terms: it is ‘‘precisely because they were lacking almost all the rights and expectations that we characteristically attribute to human existence’’ and yet were still alive that they could ‘‘be situated at a limit zone between life and death.’’ On this account the horrors of modernity are nothing more than violations of the norms of the tradition—a tradition that simply needs to be reasserted, rather than criticized or deconstructed. And this response might seem su≈cient even if one accepts, as Agamben does, Arendt’s argument in The Origins of Totalitarianism that the emergence of the camps signals the extreme limitations of the politics of human rights. Arendt’s argument is that the direct defense of human rights will alone be insu≈cient. On her account what is needed is rather a recognition of the ultimate basis of civil rights—what she terms the ‘‘right to have rights.’’∂≤ This basis Arendt finds in political action. Properly understood, human rights are civil rights: they are based on forms of human action, not a set of moral truths about the laws of God or nature. It is as political, not legal, actors that we are granted rights; and it is through political action that we defend those rights. But in the present case we might interpret this as nothing but a call to indirectly defend human rights, and not at all to question the distinction between political life and bare life upon which the conception of rights rests. Note, though, that as a practical matter this solution has not been particularly e√ective up to this point. More importantly, it is a conservative one that simply attempts to retreat to a kinder, gentler age. It does not attempt to understand the logic of the camp or the Versuchsperson. These are horrors that invade our political lives and our political thinking from without. This insistence upon the foreign and external nature of these evils is both confirmed and undermined by the suggestions of Tadeusz Borowski or Primo Levi that the camps operated in a sphere beyond good and evil. Consider the e√ect of 12

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reading Borowski’s stories, or Levi’s invitation ‘‘to contemplate the possible meaning in the Lager of the words ‘good’ and ‘evil,’ ‘just’ and ‘unjust’; let everybody judge, on the basis of the picture we have just outlined and of the examples given above, how much of our ordinary moral world could survive on this side of the barbed wire.’’∂≥ On the one hand, we should like to answer that morality and justice mean there just what they mean here, if only with the tempering of a forgiving equity. Anything less feels like collusion with the Nazis, the final denial of the dignity of the camp victim. But if we assert this, we presume to judge the victims of the camps. If morality is not suspended in a camp, then the obligation to be just remains just that: an obligation. Morality is not grace. Agamben brings this out nicely in a discussion of Bruno Bettelheim’s argument that the Muselmann has passed beyond the limit of the human and the moral by renouncing his freedom and by losing sight of the limit beyond which his life would have to be sacrificed in defense of that freedom. For Bettelheim, regardless of the conditions, a human being can avoid becoming a Muselmann by ‘‘accepting death as a human being.’’ But Agamben argues that ‘‘simply to deny the Muselmann’s humanity would be to accept the verdict of the ss and to repeat their gesture.’’ The Muselmann ‘‘does not merely embody a moral death’’; rather he ‘‘is the site of an experiment in which morality and humanity are called into question’’; he is ‘‘a limit figure of a special kind, in which not only categories such as dignity and respect but even the very idea of an ethical limit lose their meaning.’’ To acknowledge the Muselmann’s compromised humanity, Bettelheim’s limit of the human is denied; to avoid the moral barbarism of an imagined confrontation with a Muselmann in which one judges his ‘‘character and habits,’’ one renounces ethical terminology. With the Muselmann we find the limit of limits: clear boundaries can no longer be drawn here.∂∂ The point is not that the liberal refusal to consider the camp as threshold rules out a solution to this dilemma from the start. The very idea of a solution here seems o√ensive. The point is rather that the liberal response can make no sense of its own confusion. The camp is simply evil and incomprehensible. The person condemned to a camp is neither capable of morality nor incapable of it. As for the di≈cult questions this emerging limit of the moral might raise, they too are set aside in favor of a respectful silence.∂∑ In contrast, Agamben’s conception of the threshold at least promises to more precisely delineate these confusions: the camp both is and is not a legal, political, and moral space. Hence, we should hardly be surprised to find introduction

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ourselves torn, wanting both to a≈rm and to deny that these categories apply here. Finally, the liberal strategy reveals its limitations when we recognize that the notion of the threshold is in fact expanding into areas where we will not have the luxury of refusing to consider the inner logic of phenomena we should like to reject as evil and incomprehensible. What, for instance, are we to do when we are dealing with agents or things that have not already been recognized as the bearers of rights? Here the reassertion of rights is simply not an option. We must decide whether a neomort—a body whose only signs of life are that it is ‘‘warm, pulsating, and urinating’’—is in fact a human being at all, an agent or a thing. In such cases, ‘‘life and death [cease to be] properly scientific concepts [and become] political concepts, which as such acquire a political meaning precisely only through a decision’’ (164). Ironically, such decisions are increasingly made by scientists, and not by politicians: ‘‘In the biopolitical horizon that characterizes modernity, the physician and the scientist move into the no-man’s-land into which at one point the sovereign alone could penetrate’’ (159). These are still marginal figures in our current political life. But if Agamben is right, the concept of the margin is itself being swept away. It is this that leads him to conclude that the camp is the as yet unrecognized paradigm of the modern. As the logic of the sovereign exception comes unraveled (or is realized—this paradox being a necessary function of that logic), and the impossibility of categorically distinguishing between exception and rule is made manifest, the distinction between bare life and political life is hopelessly confused. ‘‘When life and politics—originally divided, and linked together by means of the no-man’sland of the state of exception that is inhabited by bare life—begin to become one, all life becomes sacred and all politics becomes the exception’’ (148).∂∏ In the end, the attempt to resist this through the assertion of human rights ignores the connection between the humanism that undergirds the concept of rights and the events that seem to conflict with it. Agamben’s argument is not that Aristotle’s or Locke’s reflections on politics carry with them an implicit commitment to the substantive racist policies of National Socialism; nor does he claim that they ‘‘caused’’ the Holocaust (a term to which he objects [114]). What he does argue is that there is a deep a≈nity between such contemporary horrors and the tradition of political philosophy to which we might turn in an e√ort to understand and combat such phenomena. The practical implication would be not that there is no di√erence between Aristotle or Hitler, but that Aristotle will not provide a stable 14

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point from which to critique those who follow after him, or from which to construct an alternative.∂π There is no Archimedean point outside biopolitics. Politics is always a matter of the body, and ‘‘the ‘body’ is always already a biopolitical body’’ (187). If Agamben’s analysis and description of this dilemma of the formation of the political and of political identity is strikingly original, the nonmetaphysical alternative toward which he gestures in response is more familiar. In an earlier discussion of the politics of the sacred, he argues that the sacred bears within itself subversive potential, in that as a marginal supplement of political identity, it itself lacks identity. This opens up the possibility of a mode of being that escapes the metaphysics of politics, and hence of thanatology. ‘‘In the final instance the State can recognize any claim for identity. . . . What the State cannot tolerate in any way, however, is that the singularities form a community without a≈rming an identity, that humans co-belong without a representable condition of belonging.’’ The Allied response to the Nazi extermination of the Jews is instructive in this regard. Rather than acknowledge the sacred character of the Jewish people (as a people whose extermination ‘‘was not conceived as a homicide by [either] the executioners [or] the judges’’), they ‘‘tried to compensate for this lack of identity with the concession of a State identity, which itself became the source of new massacres.’’∂∫ To break out of this vicious cycle, Agamben follows Jean-Luc Nancy in attempting to ‘‘think’’ community without unity.∂Ω In so doing, both will follow Heidegger (though hardly without criticism) in his attempt to develop a poetic mode of speech beyond metaphysics. What Agamben adds to this is his emphasis upon bare life: ‘‘Only a reflection that . . . thematically interrogates the link between bare life and politics, a link that secretly governs the modern ideologies seemingly most distant from one another, will be able to . . . return thought to its practical calling’’ (4–5). This emphasis, however, changes everything, and it is worth detailing the distance it places Agamben from Heidegger and the work he has inspired. When Agamben writes that political practice is ‘‘governed’’ by ‘‘the link between bare life and politics,’’ we must be careful to note that this link is not one that has been forged by willful or culpable philosophers. Political practice reproduces the older structures we find in Western political philosophy not because it is produced by that philosophy but because both express a metaphysical quandary that is distinct from each. This way of putting the introduction

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matter suggests that the relation between the two is one between ‘‘politics’’ and ‘‘the political’’; on this model, the former refers to the empirical data of actions and events and the latter refers to the system of meaning or intelligibility within which the empirical manifests itself.∑≠ One advantage of this quasi-theatrical schema is that it allows us to conceive of politics and political philosophy as distinct things that nonetheless map onto one another: the system of intelligibility is an intelligibility of events and actions and intentions. In the absence of the latter, there would be nothing to be either politically meaningful or meaningless. Conversely, in the absence of a conception of what meaning is and how it can be achieved, no behavior could rise to the status of political action at all. This distinction is generally derived from Heidegger, ultimately from his thinking of the ontological distinction and most immediately from his writings on technology. Heidegger argues that technology is not the application of scientific theory. Rather, scientific theory itself arises in response to the technological demand that nature be reduced to ‘‘a calculable coherence of forces,’’ which can be represented and used for the representation and application of force. ‘‘Modern physics is the herald of enframing, a herald whose provenance is still unknown.’’∑∞ Although the technological mode of revealing is a nihilistic one in which instrumental reason reigns supreme, that reason is itself not an instrument. As a mode of revelation it is ‘‘the destining of revealing’’ or Being in our time. Hence Heidegger’s famous dictum ‘‘the essence of technology is nothing technological.’’ Hence as well his caution that we neither respond with ‘‘a stultified compulsion to push on blindly with technology [nor], what comes to the same, . . . rebel helplessly against it and curse it as the work of the devil.’’∑≤ Lacoue-Labarthe has echoed Heidegger’s claims here, and suggested that ‘‘the essence of the political . . . is by itself nothing political,’’∑≥ a claim that is at the heart of his own attempt to develop a distinction between politics and the political. He o√ers the helpful suggestion that the relationship between politics and the political be conceived along the lines of the relationship between ‘‘a—more or less fully—developed photograph and a negative.’’∑∂ This nicely captures the relative priority of the philosophical, while also retaining the necessary reminder that both politics and the political are what they are because they represent something else. It is fairly clear that Agamben would claim the same. But there is an important shift here in his work. Even if we grant that the relation between the political (e.g., the thematic subject of [moments of ] Aristotle’s Politics) and politics (e.g., the death 16

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camps) is a noncausal one in which both are expressions of the essence of metaphysics, there remains a fundamental discrepancy between the roles these two play in Agamben’s argument. In Agamben’s work canonical texts are depicted as giving expression to an unstable logic, one that inevitably comes unraveled on the level of (empirical) politics. Indeed, as in the opening paragraphs of this introduction, it is recent empirical events that provide the pathos and the urgency to Agamben’s discussion. Agamben does not set out only to provide us with an insightful way to read the canon, though he does succeed in that. He sets out to address the catastrophe of our time. And it will ultimately be addressed by that ‘‘which enacts the experience merely shown by logic.’’ In so emphasizing the pathos of politics over that of the political, Agamben sharply distinguishes himself from Heidegger, who if anything takes the opposite approach. As Heidegger explicitly and repeatedly states, the danger of technology is not the threat it poses to human life, but the danger it poses to the dignity of the human being as thinker—that is, the danger it poses to thought.∑∑ His infamous equation of the death camps with the mechanized food industry is wholly consistent with this: ‘‘Agriculture is now a motorized food industry, essentially the same thing as the fabrication of cadavers in the gas chambers of the extermination camps, the same thing as the blockades and the reduction of countries to famine, the same thing as the fabrication of hydrogen bombs.’’∑∏ To say that the ‘‘motorized food industry’’ is ‘‘essentially the same thing’’ as ‘‘the fabrication of cadavers in the gas chambers of the extermination camps’’ would seem to imply that the converse is true as well: The metaphysical significance of Auschwitz is precisely that of a factory farm. Because of his emphasis upon bare, embodied life, Agamben cannot take such a tack. For those appalled by the rough equating of the food industry and the death camps, this is all for the better. But it does result in a privileging of one of the two purported expressions of the metaphysical quandary of politics that we would not find in a purely Heideggerian analysis. It is as if Agamben’s text were enacting what he claims is the characteristically paradoxical inclusion of life within metaphysics. The strength of Agamben’s analysis is that it does not merely add something to Heidegger’s own work, but it allows us to see how the latter evades the problems Agamben confronts. I have alluded above to Agamben’s own discussions of the later Heidegger’s thinking on death. I should like to conclude by noting the manner in which the problem of life dogs Heidegger from the start, from Being and Time, the source of much of our thinking of the introduction

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ontological distinction that Agamben’s emphasis upon life both follows and challenges. In the opening pages of part 1 of Being and Time Heidegger betrays an anxiety concerning the distinction between fundamental ontology and biology—an anxiety that corresponds to his introduction’s suggestion that the former will either indicate or enact a true politics: ‘‘The existential analytic of Da-sein is prior to any psychology, anthropology, and especially biology [erst recht Biologie].’’∑π One wonders, Why ‘‘especially’’ biology? Why does Heidegger in his 1929–1930 lecture course return to the question of the biological, and address biology alone as a metaphysically significant positive science?∑∫ The immediate answer is that, though Heidegger suggests that he pursues a concept of the natural, this concept proves to be insu≈cient to delineate the ontology of the worlding of the world.∑Ω Heidegger seeks to distinguish his own project from the work of Dilthey and Bergson and Nietzsche even as it builds upon that work. But the terms in which he does so are striking indeed: In a paragraph that begins with the consideration of the anthropological tendencies of psychology, Heidegger quickly turns to the rejection of ‘‘a general biology’’ as science that might provide the ‘‘ontological foundations’’ that anthropology neglects. In the order of possible understanding and interpretation, biology as the ‘‘science of life’’ is rooted in the ontology of Da-sein, although not exclusively in it. Life has its own kind of being, but is essentially accessible only in Da-sein. The ontology of life takes place by way of a privative interpretation. It determines [bestimmt] what must be the case if there can be anything like just-being-alive. Life is neither pure objective presence, nor is it Da-sein. On the other hand, Da-sein should never be defined [bestimmen] ontologically by regarding it as life—(ontologically undetermined [unbestimmt]) and then as something else on top of that.∏≠ The concluding claims are familiar enough: Da-sein is not an aggregation of life (the animal) and ‘‘something else’’ (rationality); rather, each of these are seen as what they are only by way of ‘‘a privative interpretation’’ that begins with Da-sein as being-in-the-world. But neither is it the case that such an interpretation can fully account for life—for life is not merely an abstraction from the unity of Da-sein—it is not exclusively founded in the ontology of Dasein. Nur-noch-leben is neither decisively included in nor excluded from the ontology of Da-sein. It is, in other words, included as a problem—or, perhaps better, included as an exclusion. If the human being could be reduced to the level of bare life, it would be neither an object nor Da-sein. What it would be 18 andrew norris

remains a mystery—albeit, perhaps, one produced by our uncanny inability to see what is nearest to us. Agamben’s e√ort not so much to solve as to reveal this mystery is still very much a work in process. While I have concentrated in this introduction upon the first volume of the homo sacer project, there are already two other volumes, and an indefinite number more are planned.∏∞ It would be premature, then, to attempt either a synoptic overview or a final judgment of the coherence or validity of Agamben’s overarching argument, and none of the essays assembled here do so. But Agamben has already produced a substantial body of work and advanced a number of striking claims, claims that have a special resonance in a world gripped by the Bush-Cheney administration’s global ‘‘war on terror’’ and its use of states of exception such as Guantánamo Bay.∏≤ The essays in this volume engage these claims in a sympathetic but critical spirit, in the hope that such engagement can help us understand not only Agamben’s di≈cult work, but the world upon which it comments. If Agamben is correct, our current political and philosophical situation is at once radically new and of a piece with the tradition from which it emerges. Hence, while there may be ‘‘no return from the camps to classical politics’’ (188), neither of these will be comprehensible in isolation from the other—a fact that will make the task of confronting the dangers of our time as theoretical as it is practical. notes I am grateful to Giorgio Agamben, Joe Campisi, Bill Connolly, Yasemin Ok, Tom Rockmore, Hans Sluga, and Eric Wilson for their help on earlier drafts of this essay. 1 I wrote this essay while Bill Clinton was still the U.S. president. Since George Bush’s appointment by the Supreme Court, the situation has obviously changed dramatically, and in ways that may make Agamben’s diagnosis considerably less counterintuitive than it would otherwise have been. The appointment of Bush required violations of both the rules of recusal and the ‘‘state’s rights’’ doctrine advanced by the Court’s more conservative members, and it required the Court to advance ‘‘novel legal doctrines’’ (see Rogers Smith, ‘‘Bush v. Gore,’’ Common-Place 2, no. 4 [ July 2002]; Walter Sinnott-Armstrong, ‘‘Recusal and Bush v. Gore,’’ Law and Philosophy 21, no. 2 [March 2002]; Ronald Dworkin, ‘‘A Badly Flawed Election,’’ New York Review of Books, January 11, 2001; and Bruce Ackerman, ‘‘Anatomy of a Constitutional Coup,’’ London Review of Books, February 8, 2001). As such it introduction

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does not seem to be an instance of a Schmittian sovereign exception as described below, but of a violation of the law. But it may well have brought about the permanent state of exception of which Benjamin speaks in the eighth of the ‘‘Theses on the Philosophy of History’’ (‘‘Über den Begri√ der Geschichte’’) and which, as we shall see, Agamben’s work endeavors to explicate. 2 Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 47. 3 For an excellent discussion of this, see Zygmunt Bauman, Modernity and the Holocaust (Ithaca, N.Y.: Cornell University Press, 1991), 12–30. 4 Jeremy Rifkin, The Biotech Century: Harnessing the Gene and Remaking the World (New York: Tarcher/Putnam, 1998), 60–61. 5 Locke, Two Treatises of Government (New York: Cambridge University Press, 1988), II, 27. There is, however, no necessary contradiction here, as Locke also maintains that our bodies belong to God, and that our tacit consent to the institution of money takes us beyond the limitations of the initial form of private property (II, 6, 36, 50). Not completely so, of course; and a defender of ucla, the Sandoz corporation, or the proponents of organ farming might look for support to Locke’s spoilage limitation: ‘‘As much as any one can make use of to any advantage of life before it spoils; so much may he by his labour fix a Property in. . . . Nothing was made by God for Man to spoil or destroy’’ (II, 31). One can object on a number of grounds to ghoulish proposals to develop ‘‘neomorts,’’ bodies that, still ‘‘warm, pulsating, and urinating,’’ are neither dead nor alive, and hence beyond the purview of rights that might protect us from being turned into organ farms; but one can hardly cite a lack of either industriousness or a desire to make use of all that God has given us. 6 Cited in Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998), 145. All further references to this book will be given in the main body of the text by page number. Italian references to the work come from Homo Sacer: Il potere sovrano e la nuda vita (Turin: Giulio Einaudi, 1995). 7 Michel Foucault, The History of Sexuality, Volume 1: An Introduction, trans. Robert Hurley (New York: Vintage, 1978), 143. 8 It may take centuries for a people to experience the disgust with life that initially made them a people: the exhaustion of Europe (the death of God) is a contemporary event, albeit one that has been in genesis for two thousand years. ‘‘The time has come when we have to pay for having been Christians for two thousand years: we are losing the center of gravity by virtue of which we lived; we are lost

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for a while’’ (Friedrich Nietzsche, The Will to Power, trans. Walter Kaufmann [New York: Random House, 1968], 20). 9 Aristotle, Politics, trans. Ernest Barker (Oxford: Oxford University Press, 1978), 1.2.8. 10 Politics, 1.2.16. 11 This may seem to contradict the Arendtian claim—which Agamben accepts—that ‘‘society is the form in which the fact of mutual dependence for the sake of life and nothing else assumes public significance and where the activities connected with sheer survival are permitted to appear in public’’ (The Human Condition, 46). However, accepting as fundamental the distinction between the good life and mere life has hardly precluded liberal political philosophy from turning back and subordinating the public realm to the interests of the private—a subordination that redefines but does not entirely eliminate the categorical distinction between the two. It is simply that in liberalism the ‘‘good life’’ is increasingly a procedural matter, one that most e≈ciently regulates the conflicts between our discrete private lives. The debate between Michael Sandel and John Rawls, for instance, is not over the relevance of the Aristotelian distinction, but over the definition and preconditions of justice. Hence each party to the debate understands himself to be contributing to the Aristotelian project. Compare John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), 424√., and Michael Sandel, Democracy’s Discontent: America in Search of a Public Policy (Cambridge, Mass.: Harvard University Press, 1996), 317√. 12 Agamben distinguishes his analysis from a deconstructive one, apparently on the grounds that deconstruction allows itself to become entangled with paradoxes in an unhelpful way (54). Be that as it may, I am using the term quite loosely here to refer to a mode of analysis that finds the assertions it treats to require a logical structure (of, say, binary oppositions such as logic and rhetoric, performative and constative language, inner and outer, political life and bare life) that they themselves unravel. 13 Aristotle, Politics, 1.2.14. If this statement—which, surprisingly, Agamben does not cite—strikes us as hyperbolic, we need only recall that Book Ten of the Nicomachean Ethics ends with a call for the Politics because the particularly human arete can be realized only within a political life. 14 Aristotle, Politics, 1.2.16. 15 On politics as metaphysics, compare 44√., 182, and the discussion of Heidegger and Levinas at 150–53. 16 Homo Sacer: Sovereign Power and Bare Life is divided into three parts, with an addi-

introduction

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tional introduction. The first is devoted to the nature of sovereignty, the second to that of the Homo Sacer of the title, and the third to ‘‘the Camp as Biopolitical Paradigm of the Modern.’’ Each of these ends with a section entitled ‘‘Threshold’’ [Soglia]. Agamben does not announce this, but I believe the word is derived from and meant to refer back to these lines, which are found in the first ‘‘Threshold’’: ‘‘In the words of Benveniste, to render the victim sacred, it is necessary ‘to separate it from the world of the living, it is necessary to cross the threshold that separates the two universes: this is the aim of the killing’ ’’ (66). If this is so, each part of the book ends in the ‘‘no-man’s-land’’ (159) between life and death. Each therefore serves as a di√erent path to the same goal, that of the confusion of politics and life. Compare this conception of the threshold with Jean-Luc Nancy’s discussion of Caravaggio’s Death of the Virgin in his essay ‘‘On the Threshold’’: ‘‘Death: we are never there, we are always there. Inside and outside, at once’’ (in Paragraph 16, no. 2 [ July 1993]: 115). The paradoxical character of this inclusive exclusion may account for the fact that Agamben can speak of both ‘‘the ‘politicization’ of bare life’’—as in the long quote above—and of ‘‘bare life as originary political element’’ as being ‘‘produced’’ by sovereign power—as in the ‘‘Threshold’’ that concludes the first volume of Homo Sacer (181). 17 Compare page 24 (‘‘The sovereign exception is thus the figure in which singularity is represented as such, which is to say, insofar as it is unrepresentable’’), page 29 (‘‘the simple positing of relation with the nonrelational’’), page 60 (‘‘the relationship of abandonment is not a relation’’), and page 110 (‘‘The ban is essentially . . . the power of maintaining itself in relation to something presupposed as nonrelational’’). 18 Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1966), 300. 19 Hegel, The Science of Logic, trans. A. V. Miller (New York: Humanities Press, 1976), 413. 20 Indeed, on Hegel’s account it must: ‘‘nicht das Leben, das sich vor dem Tode scheunt und vor der Verwüstung rein bewahrt, sondern das ihn erträgt und in ihm sich erhält, ist das Leben des Geistes’’ (cited in Herbert Schnädelbach, Hegel: Zur Einführung [Hamburg: Junius Verlag, 1999], 46). 21 In an earlier work Agamben writes of ‘‘an unwritten book’’ on this theme, The Human Voice, of which his written works after 1977 serve as the prologue and afterwords. In this unwritten work there are ‘‘numerous drafts’’ transcribing the passage in the Politics where Aristotle bases man’s political nature upon his ability to speak of justice and injustice. See Agamben, Infancy and History: Essays on the Destruction of Experience, trans. Liz Heron (London: Verso, 1993), 3, 7–8. 22

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22 Giorgio Agamben, Language and Death: The Place of Negativity, trans. Karen Pinkus with Michael Hardt (Minneapolis: University of Minnesota Press, 1991), xi, xii. Italian references to the work come from Il linguaggio e la morte: Un seminario sul luogo della negativa (Turin: Giulio Einaudi, 1982). 23 Agamben, Language and Death, 17, and Ludwig Wittgenstein, Tractatus LogicoPhilosophicus, trans. C. K. Ogden (London: Routledge and Kegan Paul, 1982), 6.4311. Both here and in his appendix to The Coming Community (trans. Michael Hardt [Minneapolis: University of Minnesota Press, 1993]), Agamben is influenced by the early Wittgenstein’s understanding of the mystical status of ethics and his related insistence that the ability to say (sagen) things in language rests upon language’s ability to show (zeichen) things. 24 ‘‘And to what is one summoned? To one’s own self. . . . The call is lacking any kind of utterance. It does not even come to words, and yet is not at all obscure and indefinite. Conscience speaks solely and constantly in the mode of silence’’ (Heidegger, Being and Time, trans. Joan Stambaugh [Albany: suny Press, 1996], 252); cf. Agamben, Language and Death, 54–62. 25 Agamben, Language and Death, 58–62, 88, and 105–6. 26 See Agamben, Language and Death, 61: ‘‘Metaphysics is not simply that thought that thinks the experience of language on the basis of an (animal) voice, but rather, it always already thinks this experience on the basis of the negative dimension of a Voice.’’ I should note that this statement is phrased as a conditional. However, the context makes it clear that it is Agamben’s considered view, as it is on this basis that he concludes that Heidegger fails in the end to escape metaphysics—a conclusion that is hardly insignificant, providing as it does the justification for much of Agamben’s own attempt to move beyond Heidegger. That said, it remains true that his attempt to do this is in many ways a working out of the problem of the place of the animal in fundamental ontology and the critique of metaphysics, a problem that is laid out in admirable detail by Derrida in the sixth chapter of his Of Spirit: Heidegger and the Question, trans. Geo√rey Bennington and Rachael Bowlby (Chicago: University of Chicago Press, 1989). Given that Agamben is the Italian editor of Walter Benjamin’s works, one should also consider Benjamin’s treatment of this issue, which is helpfully discussed in Beatrice Hanssen, Walter Benjamin’s Other History: Of Stones, Animals, Human Beings, and Angels (Berkeley: University of California Press, 1998). 27 Agamben, Language and Death, 88. 28 See Agamben, Language and Death, 86–88, 91. This distinction, while significant, should not be exaggerated, given Agamben’s commitment to the Heideggerian interpretation of ‘‘ethos’’ as naming ‘‘the abode of man’’ rather than the individintroduction

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ual’s character or habit. Compare Language and Death, 93, and Heidegger, ‘‘Letter on Humanism,’’ trans. Frank Capuzzi with J. Glenn Grey and David Farrell Krell, Basic Writings, rev. ed. (New York: HarperCollins, 1993), 258. For evidence that Agamben’s conception of the ethical nonetheless retains familiar connotations of privacy as opposed to the publicity of the political, see Language and Death, 107. 29 Plato, Crito, 48b. 30 I cite Allan Bloom’s translation (Basic Books, 1968). 31 Arendt, Human Condition, 37. 32 The instability of the distinction between political and apolitical life may already be signaled in Aristotle’s text. This entire discussion is an explication and defense of his claim that, pace Plato’s Statesman, ‘‘it is a mistake to believe that the ‘statesman’ is the same as the monarch of a kingdom, or the manager of a household, or the master of a number of slaves’’ (1.1.2). The order of the family is not ‘‘the determination of what is just’’ but the rule of the father and husband, who is analogous to a slave owner and a monarch. In all three cases, domination, not deliberation, is the ordering principle, just as the end is not the good life but the perpetuation of life. However, in the face of all of this Aristotle asserts that our perceptions of good and evil and just and unjust make up both ‘‘a family and a polis’’ (1.2.12). 33 Carl Schmitt, ‘‘Definition of Sovereignty,’’ in Political Theology, trans. George Schwab (London: mit Presss, 1988), 5. For a very similar discussion of the rise of sovereignty, albeit one conducted on a less metaphysical plane, see Jens Bartelson, ‘‘Making Exceptions: Some Remarks on the Coup d’état and Its History,’’ Political Theory 25, no. 3 (June 1997). Here, as in Agamben’s discussion, the rise of sovereignty entails the destabilization of ‘‘the very divide that previously separated the inside of republican politics from its more anarchic outside,’’ a destabilization in which ‘‘what formerly was relegated to the outside now moves into the very center of political action and understanding’’ (330–31); compare Sacer, 35–36. 34 Schmitt, ‘‘Definition of Sovereignty,’’ 13. 35 It should be clear that Schmitt does not necessarily repeat Bodin’s claim that sovereignty is the source of law, where law is defined as command. The source of the law need not be the sovereign; but if the sovereign does decide on the exception, then, in so doing, it decides on the norm as well. Compare, Jean Bodin, On Sovereignty: Four Chapters from The Six Books of the Commonwealth, trans. and ed. Julian Franklin (Cambridge: Cambridge University Press, 1992), 38, 51. 36 Schmitt, Political Theology, 13. 37 For an informed and impassioned polemic against the necessity of the exception 24

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and the decision on it, see William Scheuerman’s discussion of what he terms ‘‘the radical indeterminacy thesis’’ in Carl Schmitt: The End of Law (New York: Rowman and Littlefield, 1999). 38 René Girard, Violence and the Sacred, trans. Patrick Gregory (Baltimore: Johns Hopkins University Press, 1977), 4, 101–2. 39 Agamben, I think, complicates his account unnecessarily when he concludes that the killing of bare life does not constitute a sacrifice (114): the point is that the term sacrifice is here understood in a di√erent way, as a move in a di√erent and more fundamental economy, one that produces a transcendence instead of observing one. That said, Agamben’s analysis here owes a great deal to Bataille’s seminal essay ‘‘Hegel, Death and Sacrifice,’’ one of the two Bataille texts cited in his bibliography, though only briefly referred to in his text. In this reading of Alexander Kojève’s reading of Hegel, Bataille argues that the logic of the human practice of sacrifice is revealed in the Hegelian account of the role of death in the constitution of the human. ‘‘Death alone assures the existence of a ‘spiritual’ or ‘dialectical’ being. . . . If the animal which constitutes man’s natural being did not die, and—what is more—if death did not dwell in him as the source of his anguish—all the more so in that he seeks it out, desires it and sometimes freely chooses it—there would be no man or liberty, no history or individual. In other words, if he revels in what nevertheless frightens him, if he is the being, identical with himself, who risks (identical) being itself, then man is truly a Man: he separates himself from the animal.’’ The simple extinction of the life of the animal body alone is not su≈cient. As in Agamben’s reading of Aristotle, language too is necessary. On Bataille’s account this is because ‘‘language . . . alone founds the separation of elements and by founding it founds itself on it, within a world of separated and denominated entities.’’ The death of the animal life that is required for the emergence of the human being is a death that no purely animal life could ever die. The animal, on Bataille’s account, is lost in the sea of life. If it ceases to live, it is replaced by another of its kind, another that does not di√er essentially from it. In e√ect, it remains present. ‘‘The only true death supposes separation and, through the discourse which separates, the consciousness of being separated.’’ Hence, if death is required in order for the human being to separate itself from its animal being, to some extent that separation must already have taken place in language. Death is not truly death—that is, it is not or does not allow for the metaphysical overcoming of the animal—unless it is the death of a human being. (It is in this context that Bataille cites Kojève’s ‘‘bizarre’’ and perfectly apt saying, that man is ‘‘ ‘the anthropomorphic animal.’ ’’) The circularity here is precisely that of Agamben’s bare life: as the nonrelaintroduction

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tional (in Bataille’s terms, the unseparated), bare life is what is not political, what the political life exuviates: and yet for it to perform this function it must in some sense be political already (George Bataille, ‘‘Hegel, Death and Sacrifice,’’ trans. Jonathan Strauss, Yale French Studies 78 [1990]: 12, 15, 16, 15, 19, 20). Bataille is well aware of the paradoxes this entails: ‘‘In theory, it is his natural, animal being whose death reveals Man to himself, but the revelation never takes place. For when the animal being supporting him dies, the human being himself ceases to be. In order for Man to reveal himself ultimately to himself, he would have to die, but he would have to do it while living—watching himself ceasing to be.’’ For Bataille if not for Hegel, the solution to this is sacrifice and ‘‘the necessity of spectacle’’: the explanation for the almost universal practice of sacrifice is that human beings do in fact need to undergo this sublation; and their solution to the above paradox is to kill an animal whose physical life stands in for their own. If we disregard Bataille’s emphasis upon religious ritual, it is clear that he is describing the same Aufhebung that Agamben attributes to Aristotle—the di√erence being that Hegel’s and Bataille’s references to death explicitly commit them to a process that endangers and rejects bare life. Why then doesn’t Agamben discuss the Bataille article—why turn to Aristotle instead? In his few comments on Bataille in this book, he suggests that Bataille’s analysis of sovereignty is compromised by its insistence upon the erotic nature of sacrifice (113) and by its too-ready acceptance of the early-twentieth-century anthropological reading of the sacred (75). One result of this is that Bataille is not able to think out the specifically political nature of the logic of sacrifice he uncovers. To locate the genesis of that logic in Aristotle’s Politics would make good this lack. This is something that Bataille is unable to do, in part because he assumes that the logic of sacrifice and death is alien to Greek philosophy as a whole: ‘‘for Hegel, the human reality which he places at the heart, and center, of the totality is very di√erent from that of Greek philosophy. His anthropology is that of the JudeoChristian tradition’’ (12), for which the figure of Christ on the cross serves as the model of all transcendence of the bestial. 40 Agamben does not mention the Antigone, but his discussion of the symbiosis of sovereignty and sacred life is surely reminiscent of this most political of tragedies. The action of the play revolves around a conflict over the city’s duties toward a body that is placed neither inside the city nor outside it: the body is that of a son of the city, but one who has fought against it, and as a result it lies in the fields outside the city wall, and not in the burial plot that would mark its passage out of this world. There are many ways to characterize Antigone’s criminal refusal to obey Creon, but perhaps the most direct is to say that she tries to sort this 26

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confusion out, by burying the body, and hence putting it decisively beyond the city—or, more precisely, acknowledging that it always has been beyond or outside of the city, in the sense that it is not within the city’s authority to hold it back from burial, and hence from death. If this seems an imposition of themes that are, strictly speaking, foreign to the play, consider its culmination in Creon’s sovereign decision to condemn Antigone to an underground tomb—which perfectly symbolizes Agamben’s threshold between life and death. The result is a monstrous confusion of death and life. In the words of the prophet Teiresias: ‘‘you have thrust one that belongs above / below the earth, and bitterly dishonored / a living soul by lodging her in the grave; / while one that belonged indeed to the underworld / gods you have kept on this earth without the due share / of rites of burial, of due funeral o√erings, / a corpse unhallowed’’ (Antigone, trans. David Grene, in Sophocles I, 2d ed. [Chicago: University of Chicago Press, 1991], 1136– 42). Creon’s edict is a rea≈rmation of the city’s incorporation of the threshold between life and death: If Antigone dares to insist that the dead are simply that, and as such beyond politics, Creon will prove her wrong by condemning her to the threshold in which politics and death find one another. 41 Arendt, Origins of Totalitarianism, 444. 42 Arendt, Origins of Totalitarianism, 296. Arendt makes the argument I sketch out here in the last section of the Imperialism volume, ‘‘The Decline of the Nation-State and the End of the Rights of Man.’’ 43 Primo Levi, If This Is a Man and The Truce, trans. Stuart Woolf (New York: Penguin, 1979), 92. As readers of Levi know, the title of the first of these volumes, from which I am quoting, is by no means a confident rhetorical question. In a typically American gesture of false confidence, it has been changed in the American edition to Survival in Auschwitz, a bland assertion that quite precisely obscures Levi’s question. 44 Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive, trans. Daniel Heller-Roazen (New York: Zone Books, 1999), 56, 63. This line of analysis is also followed in the second chapter of Slavoj Zˇ iˇzek’s Did Somebody Say Totalitarianism? (London: Verso, 2001). 45 I do not wish to suggest that silence is inappropriate. Claude Lanzmann’s Shoah (transcript [New York: Pantheon, 1985]) incorporates such silence to profound e√ect in its oblique approach to the camps. 46 Though Agamben does not discuss it, one of the best examples of this collapse of the rule into the exception and of politics into life may be the corporate investigation and purchase of the human genome. The day is at hand when the decision on the human being will become the rule. The definition of the human being, like introduction

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that of death, will become too fluid to serve as a guide for the judgments on its modifications, and lawyers, scientists, and political theorists will simply not be able to chart the expansion of our present boundaries into the dark seas that confront us. 47 Derrida strikes a similarly ambivalent attitude toward the humanism that would denounce ‘‘biologism, racism, [and] naturalism’’ in Of Spirit (56). 48 Agamben, The Coming Community, 87, 88. Compare Sacer, 114. 49 See 44, 47, 60, 182–88, and, for an indication of the ultimately Heideggerian nature of this strategy, 150–53; and compare Jean-Luc Nancy (whose influence Agamben acknowledges throughout Sacer): ‘‘The thinking of community as essence . . . is in e√ect the closure of the political because it assigns to community a common being, whereas community is a matter of something quite di√erent, namely existence in so far as it is in common without letting itself be absorbed into a common substance. Being in common means no longer having, in any form, in any empirical or ideal place, such a substantial identity, and sharing this ‘lack of identity.’ This is what philosophy calls ‘finitude’ ’’ (’’Preface,‘‘ The Inoperative Community, trans. Peter Connor [Minneapolis: University of Minnesota Press, 1991], xxxviii). I have indicated some of the limitations of this ultimately non- or even antipolitical strategy in Norris, ‘‘Jean-Luc Nancy and the Myth of the Common,’’ Constellations 7, no. 2 (spring 2000): 272–95. 50 The best and most relevant version of this distinction can be found in Philippe Lacoue-Labarthe and Jean-Luc Nancy, Retreating the Political, ed. Simon Sparks (New York: Routledge, 1997). For a survey of other places it can be found, see Fred Dallmayr, The Other Heidegger (Ithaca: Cornell University Press, 1993), particularly 9, 41, 50–52, 87–88. It should be noted that Dallmayr’s enthusiasm for the distinction leads him to gloss over di√erences between the various formulations of it. He suggests, for instance, that Schmitt’s concept of the political is analogous to Lacoue-Labarthe and Nancy’s essence of the political (Dallmayr, 50); but the latter two take pains to note that this is not so. Compare Retreating the Political, 109. The point is significant only because it demonstrates how vague this distinction remains in most cases. 51 Heidegger, ‘‘The Question Concerning Technology,’’ trans. William Lovitt and David Krell in Basic Writings, 326, 327. Compare Heidegger, ‘‘The Age of the World Picture,’’ in The Question Concerning Technology and Other Essays (New York: Harper, 1977), 116. 52 ‘‘The Question Concerning Technology,’’ 330, 340, 330. 53 Philippe Lacoue-Labarthe, ‘‘In the Name of . . .’’ in Retreating the Political, 71.

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54 Philippe Lacoue-Labarthe, ‘‘The Spirit of National Socialism and Its Destiny,’’ in Retreating the Political, 150. 55 ‘‘What is dangerous is not technology. . . . The essence of technology, as a destining of revealing, is the danger. . . . The threat to man does not come in the first instance from the potentially lethal machines and apparatus of technology. The actual threat has already a√licted man in his essence. The rule of enframing threatens man with the possibility that it could be denied to him to enter into more original revealing and hence to experience the call of a more primal truth’’ (‘‘The Question Concerning Technology,’’ 333). Compare the discussion of the dignity of the human essence on 337. 56 Cited in Michael Zimmerman, Heidegger’s Confrontation with Modernity: Technology, Politics, Art (Bloomington: Indiana University Press, 1990), 43. Zimmerman correctly notes that Heidegger here ‘‘glided over the fact that the Holocaust was a German phenomenon involving the slaughter of millions of Jews. Instead he chose to view the Holocaust as a typical episode of the technological era a√licting the entire West.’’ 57 Heidegger, Being and Time, 42. Concerning the relation of Being and Time to politics, consider the use of scare quotes in the following: ‘‘Philosophical anthropology, anthropology, ethics, ‘politics,’ biography, and historiography pursue in all di√erent ways and to varying extents the behavior, faculties, powers, possibilities, and destinies of Da-sein’’ (14). In each case Heidegger is anxious to propose his fundamental ontology as the science that can do what these ontic sciences fail to do. Simon Sparks discusses the allusion to politics in his introduction to Retreating the Political, 165 n. 16. 58 See Heidegger, The Fundamental Concepts of Metaphysics, trans. William McNeil and Nicholas Walker (Indianapolis: Indiana University Press, 1995). 59 See for example Heidegger, Being and Time, 59–60. 60 Heidegger, Being and Time, 46. 61 As well as the first and third volumes, Homo Sacer: Sovereign Power and Bare Life and Remnants of Auschwitz, there is now the first part of a second volume, Stato di eccezione (Homo sacer II.i) (Turin: Bollati Boringhieri, 2003), forthcoming in English as State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2004). It is not clear how many parts volume 2 will have. The di≈culty of estimating the extent and shape of the Homo Sacer project is compounded by the fact that a number of volumes that Agamben does not announce as forming parts of the project, such as Means without End and The Open: Man and Animal, are so clearly relevant to it as to form de facto parts of or supplements to it.

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62 For Agamben’s own responses to this, see his recent State of Exception and his January 10, 2004, article in Le Monde explaining that he was unwilling to travel to America while other noncriminal foreign visitors were subject to fingerprinting and heightened degrees of ‘‘normalization’’ because, though such procedures of control are now reserved for foreigners and criminals, the historical pattern suggests that they will all too soon be applied to the rest of the citizenry. For an excellent discussion of Guantánamo and related issues strikingly in line with Agamben’s work, see Amy Kaplan, ‘‘Homeland Insecurities: Transformations of Language and Space,’’ in September 11 in History: A Watershed Moment? ed. Mary Dudziak (Durham, N.C.: Duke University Press, 2003). As Kaplan notes, Guantánamo Bay is almost a paradigm case of the state of ex-ception, ‘‘a geographical area in which both national and international laws are suspended, leaving it hovering in a realm that is neither domestic nor foreign. The United States has total jurisdiction over this space that the [federal appeals court that denied a writ of habeas corpus on behalf of a prisoner in March 2003] considers extraterritorial; Cuba has nominal sovereignty but no jurisdiction over the same territory it has leased in perpetuity to a foreign power with which it has no diplomatic relations’’ (65–66).

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t h o m a s c a r l wa l l

au ha sard

The theses of Giorgio Agamben in his still expanding Homo Sacer project are, in part: (1) the original political ‘‘element’’ is sacred life; (2) this sacred life, at one time defined as exceptional and excluded from public life, is now virtually coextensive with the political as a whole; (3) as such, as virtually coextensive with the entirety of the political, this sacred life is also virtually banalized (as in the banal expression ‘‘politics as usual’’); and thus (4) it is the goal of sovereign power, in accord with the logic of the ban, to isolate and to actualize sacred life as banal in conformity to its classical definition as that life which can be killed but not sacrificed. Insofar as it is worthless, utterly banal, this life—nothing but bare life, or life purely insofar as it is political—falls outside any but legal language. There is nothing much to say about this bare life. (I am able-to-be-killed. So what?) Bare life may or may not be ‘‘fit’’ to live, ‘‘fit’’ to die, or ‘‘fit’’ to be spoken of, as with the innumerable anonymous victims of highway accidents, as Agamben mentions, who do not make the news. Bare life is fabricated only to be judged, decided on, as speed limits are a calculated determination of how many are likely to die in any given period of time. Naked life, as Agamben attempts to think it, is prior to the sacrificeable life/unsacrificeable existence conceptual economy delineated by George Bataille and Jean-Luc Nancy. The fabrication of this banalized life moves in a zone where life and death, animate and inanimate, human and inhuman, nature and culture, law and bodies, cannot be clearly di√erentiated. In the lager the dead were not counted as dead and hence were not called corpses but figuren (figures or dolls, like chess pieces) and the Muselmänner were very often described as alive but as if dead, or, dead but as if alive. These are exemplars of Agamben’s vision of thresholds wherein can be identified ‘‘a new living dead man, a new sacred man.’’∞ This threshold is a fictive zone, a zone of ‘‘as if ’’: a materialization of semblance. Once the site of myth, this zone is now the source of calculated liquidation. It is this zone that Walter Benjamin identifies when, in ‘‘Fate and Character,’’ he says that ‘‘it is not really man who has fate, rather, the subject of fate is indeterminable,’’ and, of the judge’s dictation of a man’s fate, that it ‘‘is 31

never man but only the bare life in him that it strikes—the part involved in natural guilt and misfortune by virtue of illusion.’’≤ At the level of bare life there is only the Cartesian certainty of seeming but without any proper thinking since bare life is prior to any self for which life would be an issue, concern, or pleasure.≥ In this egoism without an ego (a determination I borrow from Maurice Blanchot’s discussion of Robert Antelme)∂ there will only have been that which seems to be. Bare life has all the phenomenality of a dream: it is indubitably there where I am not, as when I am bracketed by sleep—this is where the whole force of dreaming comes from—and with a certainty so basic because it precedes all doubts. Doubting, Wittgenstein teaches us again and again, is a social game. Doubting, according to his various analyses, has less to do with ascertaining the real than with the reassuring non-dreamlike activity and enjoyment of talking to each other. The feeling of certainty, however, is very unnerving and uncanny, because, as I have said, it is there where I am not and therefore, paradoxically, the feeling of certainty is the one I most wish to be reassured about, made even more certain of, guaranteed in fact. But I can be no more right to say ‘‘I am alive’’ than to say ‘‘I know what I am thinking,’’ or ‘‘the world exists,’’ or ‘‘I am dreaming,’’ because at the level of bare living I am stripped of any criteria that would make this life (this thinking, this dreaming, this world) familiar. In his incomparable book The Human Race, Robert Antelme reports that when the survivors of the Nazi death camps were finally liberated, they wanted to speak and tell their stories to the liberators, but when they tried they choked on their words: ‘‘No sooner would we begin to tell our story than we would be choking over it. And then, even to us, what we had to tell would start to seem unimaginable’’ (italics in original).∑ This choking, like the choking they had experienced when they smelled the decomposing bodies and tried to talk of the sea and the sun, was not the hesitation of the shy and inexperienced speaker before a crowd of strangers, nor was it the vicious ambiguity of Heideggers’s near silence concerning the camps, nor a facile speechlessness before that which o√ends, nor the babble of the delirious, nor the stuttering of the confused. The survivors choked on their very capacity for articulation. Words were not lacking. Their very appearance, Antelme says, was articulate. The words were there, in their throats, but stuck like lumps: Zungenentwurzeln, in the garbled articulation of Paul Celan (whose poetry ought always to be read in light of this choking).∏ This experience would recur even years afterwards, as we can see in the film of Claude Lanzmann, Shoah: 32

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A friend of mine worked as a barber—he was a good barber in my hometown—when his wife and his sister came into the gas chamber. . . . I can’t. It’s too horrible. Please. We have to do it. You know it. Don’t make me go on please. Please. We must go on.π The word that sticks in the throat is the word of the first person, the I: the I whom each survivor henceforth had to be. From the anonymity of surviving in the camps to the personality of living in the world, one must take on the first person. Yet, the survivors choked on their words because what had happened to them was still happening (and is still happening). The first person was caught in the throat of the one who wanted to speak because the one who wanted to speak was still surviving, still living. The experience they had had, Antelme says, ‘‘was still going forward in our bodies.’’∫ Their bodies were still phenomenal, not yet historical. With Sara Kofman, I note and wish to emphasize that Antelme, like many survivors of the camps, speaks much more often in the first person plural than in the first person singular because the experience of surviving is not lived in the first person singular but in a solitude without first persons.Ω It is lived in the utter sincerity of an egoism without an ego. In the camps lived the solidarity of those whose solitude would have to be endured again when they would testify. They had been brought to the camps to die and now they would have to speak in and of the very person who was to have died, who was still alive, and who was still to die. The interval between life and death had been discreetly obscured in the camps. Again, from Shoah: ‘‘I want to tell you something. To have a feeling about that . . . it was very hard to feel anything, because working there day and night between dead people, between bodies, your feeling disappeared, you were dead.’’∞≠ This pronominal shifting, as if in obedience to a demand, from I to we, you, or one, and the choking on the very words that would tell what happened, are a consequence of having been rendered utterly banal: Degradation, and flabbiness of language. Mouths whence nothing any longer came that was ordered, or strong enough to last. A weakly woven cloth fraying to bits. Sentences succeeded one another, contradicted one another, expressed a kind of belched up wretchedness; a bile of words. They were all jumbled together: the son of a bitch who’d done it, the wife left on her own, food, drink, the old lady’s tears, the fuck-in-the-ass, and so on; the same mouth could say it all, one thing after another. It came au hasard

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forth all by itself; the gut would empty. It only stopped at night. Hell must be like that, a place where everything that’s said, everything that’s expressed, comes forth equalized with everything else, homogenized, like a drunkard’s puke.∞∞ The camp inhabitants, described here by Robert Antelme, are concentrated into a plethora. The status of their speech should be contrasted to the garish theater of torture in which speech is separated out and immediately politicized. In his important essay ‘‘Torture: A Discourse on Practice,’’ Ñacuñán Sáez points out that, under torture, a victim will not be reduced to primordial pre-signifying cries of animal pain, but will instead talk. The victim will not reveal the destruction of language and the spectacle of the purely prelinguistic. The victim will say anything to make the pain stop. Statements roll o√ the tongue. The victim will reveal the sheer dependence on language that ‘‘comes from a body which is still (or already) controlled by the laws of language. Pain, the pain inflicted by contemporary torture, does not break down a pre-existing subject. It does something more and something less than that: paradoxically, it produces the subject as already (or still) absent.’’∞≤ The victim speaks and empties subjectivity of his or her person while becoming totally gregarious. Still controlled by the laws of language, the subject is nonetheless already absent from him- or herself, is not responsible for the words that are articulated. The subject who speaks does not own the words spoken and is mutely in flight from pain to the neutrality of language, that is, to language that prescribes nothing except that one must talk. The value of the words for the torturer is double: if the statements are true, ‘‘enemies’’ of the state will be captured; if the information is false, others will be captured instead and a generalized terror will infect a region. Pain, fear, and anxiety obscure the distinction between the true and the false. (When Socrates sets out to talk with his fellow citizens about subjects the truth of which he wishes to reach, he customarily induces a relaxed and even jovial atmosphere in which to chat.) At the same time, according to Sáez, this state of indistinction proves to be a potentially generalizable source of inspiration for the population at large to find the courage to fight their oppressors. For the camp survivor only one person, the first person, can speak the truth of what happened. Except, what had happened could not be discursively true because it was beyond doubt, it was not even possible. It was certain. The first person who could have said this, however, had died mil34

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lions of times over in the camps, or was rendered nearly insensible, brought to the stupefaction of bare life which is inhumanely apersonal. The survivor chokes on every I of whom he or she cannot—but must—speak. What is manifested here is an obscuring of the distinction between the possibility and the impossibility of speaking (a point I shall return to). As a survivor, he or she is deprived of all that would be his or her own except for the bare fact of having survived, which belongs to no one. Experience, we know from Bataille, demands to be communicated, yes, but in what person? Experience resists such identifications. To the survivor, every I is other-than-I. Every I is an immersion in, or a belonging to, something I am calling ‘‘certainty.’’ Antelme says: ‘‘The calling into question of our quality as men provokes an almost biological claim of belonging to the human race. After that it serves to make us think about the limitations of that race, about its distance from ‘nature’ and its relation to ‘nature’; that is, about a certain solitude that characterizes our race; and finally—above all—it brings us to a clear vision of its indivisible oneness.’’ This appeal to the most general of communities, however, touches on the very element that obscurely organizes and authorizes the killing. Politics had become the Ockham’s razor that separated out of the indivisible oneness and solitude of human being the very solitary element of oneness: being alive. The only status that remained recognizable by the camp guards was that the captives were still alive in order to die. Without any qualities except this state-imposed status, the prisoners were an equation of law and life. If torture reveals originary dependence on language (a dependence that reveals the subject as still—or already—absent: dependency and subjectivity in di√érance), survival in the camps reveals the sheer dependence of law on life and life on law such that life was immediately as inherently political as is speech to state-sponsored torture. This is the issue Giorgio Agamben takes up in his book Homo Sacer: Sovereign Power and Bare Life, to which I now turn. The very certainty of belonging to the human race, the certainty of being alive, is the most fragile and politically slick of conditions. Together with the originary dependence on language that characterizes social existence goes the originary insecurity of the certainty of living that characterizes political existence.

Homines Sacri Giorgio Agamben’s Homo Sacer is about life. At the same time it is about politics. Not because human life is by nature political, nor because politics is au hasard

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a capacity that can be added on to the simple fact of living. There is politics, Agamben argues (in proximity to the position of Hobbes), because a human being purely and simply lives and, as such, is able to be killed by anyone, at any time, for any reason (or even without any reason). That which the citizens of Leviathan wish to safeguard—bare, simple, haplos zo¯e—is that which neither politics, nor science, nor metaphysics, nor fundamental ontology can isolate without confronting a limit. In his Being and Time, Martin Heidegger could only include life in his existential analyses of Dasein in scare quotes, as David Farrell Krell points out in his provocative book Daimon Life.∞≥ As di≈cult as it is to think Being and to think Being as nonrelational to beings but instead as Ereignis (as the event of ‘‘owning,’’ each time, as one’s self, that which has no self, Being), it is at least as di≈cult, and as astonishing, to think bare life (zo¯e) in isolation from various ways of life (bios): ‘‘Brought to the limit of pure Being, metaphysics (thought) passes over into politics (into reality), just as on the threshold of bare life, politics steps beyond itself into theory.’’∞∂ Into theory because to think bare life in isolation from various ways of life (la dolce vita, the contemplative life, the life of industry, etc.) and prior to unum, verum, bonum, is to think ‘‘in stupor.’’∞∑ Heidegger turned from life to death and analyzed the ability-to-die that defines Dasein: the to-death, which it can appropriate to itself thus delivering itself to its own-most potentiality rather than being led spellbound unto this or that way of being. As such, as authentic (or, strictly, auto-hentic: selfowning, self-occupying, self-seizing) and decided, factical existence appropriates itself as there and as being (as ontological), and not merely as living (as ontic). However, even decidedly being, Dasein still includes in itself that which is prey to the political because every Dasein is still impudently living, as if in spite of its ontological decisiveness. Life is included in Dasein’s existence in scare quotes, included as excluded, included as the permanent possibility of an estrangement di√erent from ontological anxiety.∞∏ Krell writes: In Heidegger’s Being and Time ‘‘life’’ proves to be both essential to existential analysis and utterly elusive for it, quite beyond its grasp. Life falls into the gap that yawns between beings that are of the measure of Dasein and beings that are altogether unlike Dasein. Life neither precedes nor succeeds existential analysis but remains outside it, being both necessary to it and inaccessible for it. In short, life supplements Dasein, and like all supplements it is the death of Dasein. Fundamental ontology discovers a kind of being-there that is born and that dies, an existence it ‘‘fixes’’ 36 thomas carl wall

terminologically as Dasein; what it is unable to determine is whether such a being is ever properly alive, or what such ‘‘life’’ might mean.∞π Agamben argues that it will be necessary to think this life that is so elusive to fundamental analyses together with its political destiny in the West as that which is captured in the relation of abandonment. Inspired by the courses of Michel Foucault at the Collège de France in which the philosopher began to analyze a transition from the ‘‘territorial State’’ to the ‘‘State of population,’’ and also by the initiatory studies of Hannah Arendt on totalitarianism and homo laborans, Agamben has defined a ‘‘zone of indetermination’’ where life and law pass into each other without any distinction. Ironically, it was just about the time Heidegger was unfolding his ontological revolution for us with his uncanny genius in Being and Time that the political history of the West turned with unprecedented virulence on its own populations and began to colonize them with the metaphysical rigor that Agamben exposes in this book. That which this colonization produced were homines sacri: beings whose lives were perpetually au hasard, at large and at risk, utterly politicized in the sense that between their sheer, bare existence and the state of law there would be utter integration, utter indi√erence. That which was revealed to be sacred about life was precisely the fact that the simple, elementary, and nascent sweetness of life is the original political element insofar as it is able to be killed without infracting the law and without being sacrificed.∞∫ Right from the first page, with admirable clarity, Homo Sacer describes a fissure that runs throughout the political destiny of the West. It is the fracture between bare life and public ways of life; between zo¯e, ‘‘the simple fact of living common to all living beings,’’ and bios, ‘‘the form or way of living proper to an individual or a group.’’ This fissure, according to Agamben, is originary. Life is double. Not dialectically split and (for better, or, usually, worse) susceptible to healing through either union or purification, but critically split between the unqualified and whatever qualities, the pure and the modified, the singular and the general. The complete absorption of zo¯e into biopolitics is the fundamental ambition of political life in the West. This is what Foucault had begun to notice and had drawn our attention to with his characteristic boldness beginning with the first volume of The History of Sexuality. Since that study it has become possible to think the foundational political event as the abandonment of zo¯e to its destiny in the production of the normalized biopolitical body. Beginning with the modern era, man, as Foucault wrote, would no longer be ‘‘what he was for Aristotle, a living au hasard

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animal with the additional capacity for a political existence’’ but would become an entirely new entity whose ‘‘politics places his existence as a living being in question.’’∞Ω Agamben’s advance on these analyses is as follows: between unqualified, bare life and its communities, its ways of life, there exists no fundamental relation and there never has. This missing link is what the West is running up against again and again in its perpetual crises: the production of the biopolitical body always also secretes bare life, which remains as a proximity and an exception to any form of life (or death). Between bare life and the ways in which it is lived, there is an always disappearing distinction, which runs pell mell throughout life itself, fracturing the organism into a mosaic or mélange. The disappearance of this distinction is biopolitical inspiration. This is what law and sovereign power have always been about, this has always been their secret ambition: to make of that inspiration a separation and a relation. Homo Sacer is the history of that secret. Between bare life and its ways of living, there can only be decision. Every sovereign and every state has always confronted this. Whether the sovereign takes power, arranges power, or is given power, it always sees before it a magma of anchored life. Power sees before it life that is already no longer natural but not yet properly the life of a people, a state. And this is why, in the last analysis, political power must absorb death, for death—the right to death (and, for now, this is not about euthanasia, but about the decision as to what counts as death and when and in what way death counts as death and not simply perishing, which is to say, if death, and thus the life it most intimately articulates, counts at all)—is the ontological decision whereby the living being can remain possible unto its own-most self. Bare life owns only itself, can be only itself, in owning the estranged intimacy of its to-death. Estranged and intimate because death names only that which it suspends. But if God can be killed, why not death? Does it not follow with perfect rigor that the death of God should be the death of death, the disappearance of death as an event? Why should death not simply be a political strategy, a public health issue, a medico-technical accident, an unceremonious being-killed and, at the same time and by the same logic, an unceremonious being-kept-alive by any means necessary? (It is known, for example, that a deportee ill with influenza would be allowed to recover before being transported to a death camp.) Indeed, the uncanny relation of being to death as delineated by Heidegger (where the possibility of not being there anymore opens decisively the already-being-there that the existent is at its own most) is, at the same time, a primordial nonrelation, 38 thomas carl wall

nonconnection of bare life to death. Bare life is thrust, excepted, or even driven, outside the to-death that defines Dasein and that transforms bare life into being. Falling outside Sein-zum-Tode is bare life au hasard in the space of the political. In our era in which the furious and totalizing will-to-identity is driven by the anxiety and shame of nihilism, and in which resistance to totality is driven only by ‘‘alternative’’ identities (or ‘‘lifestyles’’ or ‘‘communities’’), the absence of any determinate or destinal relation to bare life will perpetually, exigently, and internally de-structure every form of relation from makeshift anarchist collectives to fascist ethnocities. Bare life is the nonrelational and thus invites decision. It is the very space of decision (political and ontological) and, as such, is perpetually au hasard. If we are to think the political again, and not vainly try to rid ourselves of the political in favor of who knows what theofundamentalist human nature or cosmosophical evolution, we must, Agamben argues, begin to do this by thinking bios without relation to zo¯e. We must think that it is the essence of bios to exist in its own zo¯e, its own simplicity and singularity, and this rethinking begins with analysis of the ban.

Abandoned Life In the Greek polis, simple life was abandoned to the home, the oikos, and Aristotle opposed this to public life: ‘‘born with regard to life but existing essentially with regard to the good life.’’≤≠ Simple life was excluded from the public domain. But as Agamben is at pains to show throughout his study, this exclusion is at the same time implicated in the political in an original way. Western politics here constitutes itself through the non-simple exclusion/inclusion of natal life. The political is at once the exclusion and abandonment of simple life and also its conservation. The political in its entirety is suspended over the bare life it excludes, bans. The relation of the ban, of abandonment, is the original political relation. In the oikos (or the holding area, or the camp, or outside the city limits), bare life is subject to the totality of the law and at the same time is the law’s most intimate possession in its being dispossessed. Exempt from legal status, bare life is potentially prey to everyone and every political decision. (In the Greek oikos, Agamben points out, the son, having no public status, can be killed for infraction of paternal rule without this being considered murder.)≤∞ Exiled bare life, like the life of the camp inhabitant, the refugee, the bandit, or the overcomatose body of au hasard

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Karen Quinlan,≤≤ is without a voice in public a√airs and may be killed or kept alive without ceremony and without criminality. Bare life is simply set outside the properly human sphere without being brought under divine law and without reentering nature. Bare life is otherwise than public life, an impersonal insistence, vaguely powerless. It is an exceptional exclusion that suspends law with regard to bare life (the person, or entire populations, so reduced) but brings that excluded life into the totality of law as the element upon which law ultimately decides. This sphere is the truly political element: neither public nor private nor sacred nor natural. The essence of political power in the West (Agamben argues, based on the work of Carl Schmitt) is the power to suspend (not apply) law and thus to produce a sphere of beings without qualities, homines sacri, whom every human being, insofar as he or she is alive, may be. The sovereign leader and homo sacer are symmetrical poles of the total political sphere for, to the sovereign, all men are potentially homines sacri and, to the abandoned or exiled, all men are potentially sovereigns. With the ban only the pure form of relation remains: But precisely what kind of relation is at issue here, when the ban has no positive content and the terms of the relation seem to exclude (and, at the same time, include) each other? What is the form of law that expresses itself in the ban? The ban is the pure form of reference to something in general, which is to say, the simple positing of relation with the nonrelational. In this sense, the ban is identical with the limit form of relation. A critique of the ban will therefore necessarily have to put the very form of relation into question, and to ask if the political fact is not perhaps thinkable beyond relation and, thus, no longer in the form of connection.≤≥ Every love relation knows this power and this threat. A love relation may bring grief, heartache, joy, pleasure, but to be excluded from the love of the other, to be dropped, is to be excluded from the whole sphere of the relation. One’s emotions become useless. The loved one who is dropped is not reduced to his or her prior self, but su√ers altogether a loss of self. Excluded from love, one su√ers anonymous pain without even su√ering a loss of love because one loses what is no longer. Within the love a√air, a wrong can be repaired, but outside the love, the wrong of being dropped is immediately sealed and the whole reality of the pain of being dropped has already passed by because it was a part of, was the outer limit of, the love that is now erased.

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To be dropped, or to be left alive by the death of someone dear, is to be obsolete. The fierce, violent gravity of grief is precisely its suspension over the totality of what is (was) lost. It is less the case that I grieve than that I am the very condition of, or element of, grief. But then, what if the love was not a relationship to begin with? What if love is not a connection? Who has not fallen in love with a feeling, not of relation, but of abandon? Untying? What if the countless books and articles and psychotherapy sessions—not to mention the institutions of marriage and family—committed to helping maintain the love relationship were in fact attempts to prohibit, regulate, or normalize the untying that love is in the first place? The political is commonly the socially contracted general community where we (like to think we) are guaranteed to belong. But, insofar as, and for as long as, the political element continues to be bare life as always already abandoned, that is, insofar as one must enter the political with abandon, then the political will be a form of love. That the political should be a form of love, of compassion and of passionate identification with the other and others, is not only visible in the immanence of fascist regimes but also in the passion for humanitarian rescue e√orts that likewise reduce the other to bare life, to abandonment. Statist politics is essentially melodrama. Indeed, the appeal to abandonment—with its logic of inclusion/exclusion—is perhaps the deepest constitutive and unifying force the West knows.≤∂ Every politics of inclusion contains within it the threat of abandonment. Indeed, the more inclusive the general, the more one approaches a space where to be included and to be excluded become indistinct. The more the inclusion, the greater, nearer, more threatening the outside becomes because the form of the law will remain in place but will have been emptied of its contents, suspended. The law orders, that is all. In a politics that operates almost entirely and incessantly in a state of emergency, as Walter Benjamin called our attention to, law is thus incessantly suspended, leaving life incessantly au hasard (and no longer clearly confined to the home, the camp, or the outskirts of the city, for the oikos is now everywhere). Emptied of its contents, the law grows silent and abandons. Silence is the general form of language (because there is no word for word and no way to think language outside language without starting from language) and abandonment is the general form of political power. Each is a pure reference to the general. But the general is the nonrelational. Out of this paradox, Agamben would have us rethink the political fact.

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Address I propose that the concentration camp survivors, in choking on their words, choked on the very nonrelation or disarticulation between sociality and the bare life to which they had been witnesses. In choking on words, the possibility of speaking is bound to its very possibility (or, the possibility of speaking is arrested at the point of its possibility without passing into an actual statement and is experienced as a privation). At the same time, the impossibility of speaking manifests itself as such. In choking on words, the possibility of not being able to speak is concretely realized as the capacity for speech.≤∑ The speaker who chokes on his or her words both can and cannot speak. The witness does not lack for words. The thing that wants to be said stands in the larynx. In other words, what was unspeakable was the very speakability of the thing. Is this an event of language? Yes and no. The witness must endure speech as unspeakable. The witness, in the strictest sense, su√ers from subjectivity. We should say that this is the very intimacy of being-inlanguage, the manifestation of enunciation: the capacity to have and not to have language. The subject is the site where the unspeakable sayability of language is realized. This fissure is subjectivity, the I who cannot say ‘‘I’’ without gasping. The one who chokes on words is traversed both by language (words were not lacking) and by the inherent unspeakability of its speakability (‘‘Don’t make me go on please’’).≤∏ Language can articulate anything. It is the speaker who chokes on this superfluity. No one person can say this. Language is indi√erent and it is the speaker who su√ers this apathy like a permanent obsession. To be a subject is to be the possibility that language does not happen, and the possibility that language may not take place is the site of a potentiality that permanently inheres in language. To address (and to be addressed) is the event of non-indi√erence to the indifference of language. The unspeakability of the speakable is the thing that always matters. What is more, the unitary I—the event of speaking that is entirely made up of its taking place alone (and not some metaphysical substance that abides and then speaks here and there, now and then) and whose sole content is a ‘‘now here this’’ (i.e., the function of the linguistic shifter which is the indication that language is taking place and which Agamben has analyzed in his previous work Language and Death)—is arrested prior to the ‘‘now’’ of its taking place. In attempting to speak, what was to be narrated is manifestly still taking place. The experiences that were ‘‘still going forward’’ in the 42

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bodies of the survivors could not be consigned to a past. It is a thing that could not be remembered because it could not yet be forgotten. What is important about the testimony of the survivors is precisely that what they will say appears to be sayable and at the same time is marked by the fragility of a pure appearing, a pure seeming to say, because of its unimaginable quality. It is the fragility of address (and being-addressed): the seeming to be speaking that is always prior to any actual statement and that is the threshold between language and an outside. Pure address is the point at which the possibility of speaking and also its impossibility are conserved. This is the inherent not-at-oneselfness of the speaker. If Antelme was able to write The Human Race, it was not only because he felt an obligation to speak for those silenced by death, but also because he had come to the point zero of sociality where the individuated person who would say I in the most gregarious of circumstances instead becomes essentially and irreducibly multiplied. To speak at all in such circumstances already conserves the powerful e√ects of multiplication because speaking is simple and simply there (like life), and because its simplicity cannot be conserved except in its many ways of being spoken. To speak of bare life at all is always already to have to think. Did not Antelme narrate his book most often in the first person plural because he had passed through a solitude so essential as never to be able to return to the general in any one way? The book he wrote has all the lucidity of fiction, as is suggested by his friend Edgar Morin in his foreword to the volume, but without there being anything literary about it. Which is to say (as is characteristic of literature) its essential passivity, its exposure, its vulnerability to many readings, many times—errors and mistaken understandings—insofar as it is able to conserve the attraction of pure address. (When the well-meaning schoolteacher tells the class that this or that work of literature ‘‘still speaks to us today,’’ this ‘‘us’’ should never imply the historical us [giving the students the license to read the work as an allegory of their present] but a potential us. Whatever always still speaks has not yet been spoken, not yet been heard, and thus anticipates an us to come, a coming community.) The social multiplicity of ways of life is not a distribution of the singularity of bare life but is an e√ect of, or trace of, the primordial potential of the plethora of life always already to be inscribed as multiple. The very generality of the general, of the gregarious, is already incipit at the level of the singularity of bare life. Bare life is the nonplussed that au hasard in the political nonetheless borders on originary multitudes. Politics will change, transform au hasard

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itself into the site of happiness, when bare life is no longer understood as the political element of sovereign power, or the privacy of bourgeois culture, or the special care of the leader, or the flock of the religious shepherd, but instead the simultaneous multiplication and exteriorization of the social/ political dimension. The model inclusion/exclusion (the motif of abandonment) is always undermined by the inherently multiplied singular. This is not bare life as the interval-unto-death that lives under the threat of the whole of the law but bare life as that which exhausts itself in seizing its nascent multiplication, its essential impropriety, its structural indecisiveness. That the Nazis wished to annihilate a population and then erase them from history so as to be able to deny they ever lived and were murdered remains the horizon that politics must bear as its catastrophic history and possible future. What is more, it must be acknowledged that this catastrophe, this disaster, was carried out as if it were not happening, as if this population already did not properly exist. Hitler seldom spoke of the Jews. (Why would he have? They were ‘‘lice.’’) The survivor is the one who must tell of a thing that happened without happening. What I wish to draw from Antelme’s book in light of Agamben’s analyses is something more than remembrance, and I believe that the fictional force of the book, like the force of dreaming, makes this possible. What I wish to draw from the book is its very improbability—improbability as that which is the most certain and the most plangent social/political fact. If power tends to see before it a magma of bare life, an unformed mass whose originary organizing principle is life without proper existence and death without dying, as Antelme witnessed, it is also possible to see before us our own improbability as the singular fact of that life that is so common as to be actualized only in incessantly multiplied ways of life. That is, not in proposing this or that lifestyle as modular, nor life as biological, nor sacred, but in a nonplussed a≈rmation which amounts to a question. Life is multiple not because in fact there are many ways of life. In its very simplicity it is multiplied already because: What is called life? Where there is life (in its essential solitude) there is already population and organizing potential insofar as there is thought and especially thought that has no concern for me, is not to my measure nor to my liking, and that comes to me as an exterior power. That of which I can barely speak is nonetheless that which weighs on my speech. There is no privacy of thought and there are no private lives. There is the singularity and simplicity of thought and its countless addresses. There are, in the very simplicity of

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life, which has no self, the potentialities that are ways of life. The political, as it has been experienced in the West since Aristotle, has only interminably interrupted this singularity that is singularized in its very multiplication. What is called life? In the voice of Agamben we can say: It is whatever life you want; it is how you resolve its ba√ling simplicity which confronts you like the sound of your own voice which you can only hear away from your words. You can experience life not as that to which you cling by your fingernails but as that from which you have taken your distance because your life is always improbably older than you are and has already lived in the place of many lives, many first persons, all of whom remain unimaginable. Speech originates in this pain, this pathology (pathos + logos), this uprooting of the tongue, this most human of a√lictions. notes 1 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Stanford: Stanford University Press, 1998), 131. 2 Quoted in Alexander García Düttmann, The Memory of Thought: An Essay on Heidegger and Adorno, trans. Nicholas Walker (London: Continuum, 2002), 17. 3 Descartes is able to doubt what he senses but not that he senses, saying, ‘‘at least, it is very certain that it seems to me that I see light, hear noise and feel heat.’’ René Descartes, Discourse on Method, and the Meditations, trans. F. E. Sutcli√e (New York: Penguin Books, 1968), 107. The certainty of seeming is coextensive with thinking as a whole but without being included in any discrete thought. 4 Maurice Blanchot, The Infinite Conversation, trans. Susan Hanson (Minneapolis: University of Minnesota Press, 1993), 133. 5 Robert Antelme, The Human Race, trans. Je√rey Haight and Annie Mahler (Evanston: Marlboro Press/Northwestern, 1992), 3. 6 The entire poem reads: Du liegst hinaus über dich, über dich hinaus liegt dein Schicksal, weißäugig, einem Gesang entronnen, tritt etwas zu ihm, das hilft beim Zungenentwurzeln, auch mittags, draußen.

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Paul Celan, Last Poems: A Bilingual Edition, trans. Katherine Washburn and Margret Guillemin (San Francisco: North Point Press, 1986), 158–59. The word of Celan is translated as ‘‘the tearing up of tongues from their roots.’’ 7 Claude Lanzmann, Shoah (New York: Pantheon, 1985), 117. 8 Antelme, The Human Race, 3. 9 Sara Kofman, Smothered Words, trans. Madeleine Dobie (Evanston: Northwest University Press, 1998), 54. 10 Lanzmann, Shoah, 116. 11 Antelme, The Human Race, 135; cited in Kofman, Smothered Words, 50. 12 Ñacuñán Sáez, ‘‘Torture: A Discourse on Practice,’’ in Tattoo, Torture, Mutilation, and Adornment, ed. Frances E. Mascia-Lees and Patricia Sharpe (Albany: State University of New York Press, 1992), 138. 13 See note 2. Andrew Norris echoes the same point in his essay ‘‘Giorgio Agamben and the Politics of the Living Dead,’’ Diacritics 30, no. 4 (winter 2000). 14 Agamben, Homo Sacer, 182. 15 Agamben, Homo Sacer, 182. 16 Agamben, Homo Sacer, 152–53. The logic of inclusive exclusion that informs the argument of this book is derived partly from Alain Badiou’s L’Etre et l’événement, as Agamben notes in the pages here cited. But it also depends on the late Heidegger’s intrication of Ereignis and Enteignis (appropriation and expropriation) as he discusses it in On Time and Being, trans. Joan Stambaugh (New York: Harper Torchbooks, 1972): ‘‘Expropriation belongs to Appropriation as such. By this expropriation, Appropriation does not abandon itself—rather, it preserves what is its own’’ (23). That is, as I say, at the same time as it is inherently political because of its existential structure, Dasein spills over into the theoretical, into thinking, into language, precisely because of its structural indecisiveness which the ontological decision paradoxically preserves. This indecisiveness is not a negative condition, but is the very owning (the ‘‘proper’’ that inheres in both appropriation and expropriation) of the opening onto the multiplication that precedes (and is the very intimacy and possibility of ) the political, as I shall discuss at the close of this essay. 17 David Farrell Krell, Daimon Life: Heidegger and Life-Philosophy (Bloomington: Indiana University Press, 1992), 34. 18 Agamben, Homo Sacer, 81–86. 19 Michel Foucault, The History of Sexuality, Volume 1: An Introduction, trans. Robert Hurley (New York: Vintage Books, 1980), 143; cited by Agamben, Homo Sacer, 3. 20 Agamben, Homo Sacer, 2. 21 Agamben, Homo Sacer, 81–86. 46 thomas carl wall

22 Agamben, Homo Sacer, 186. The case of Karen Quinlan is among a list of exemplary cases cited by Agamben where law faces what may or may not be life but what must be decided upon in the absence of clear scientific or ethical guidelines. In short, law confronts it-knows-not-what but most assuredly that there is something—or someone—to face. Biopower negatively articulates the very thing it is then to decide on: a living legal-thing. In part 3 of the Homo Sacer project, Remnants of Auschwitz: The Witness and the Archive, trans. Daniel Heller-Roazen (New York: Zone Books, 1999), Agamben discusses die Muselmänner, death camp inhabitants who were both comatose and ambulatory: a blurred indistinction of human and inhuman—bare lives. 23 Agamben, Homo Sacer, 29. 24 On this point see Jean-Luc Nancy, ‘‘Abandoned Being,’’ trans. Brian Holmes, in The Birth to Presence (Stanford: Stanford University Press, 1993), 36–37. A quotation from Bossuet’s Histoire fronts the essay, reading, ‘‘The whole West is in abandonment,’’ and Nancy’s essay itself begins, ‘‘We do not know it, we cannot really know it, but abandoned being has already begun to constitute an inevitable condition for our thought, perhaps its only condition.’’ 25 A fine essay by Josh Cohen elaborates on this incapacity that is conserved (and not di√erentiated/deferred) within speech: ‘‘ ‘A Di√erent Insignificance’: The Poet and the Witness in Agamben,’’ Paragraph 25, no. 2 (July 2002). 26 I return to Lanzmann’s barber, whose testimony inspires this essay. At this point I must touch on the unsaid: the barber’s inability to go on speaking (which is not a reticence). I ask that one watch again the footage and not rely on the printed text of Shoah. The barber’s ability to say this or that detail of the gas chamber isolates him. His every word is a word and a sound from somewhere that cannot be imagined. He paces back and forth as Lanzmann waits, coaxes, and apologizes. He is not searching for the words; the words are all very clearly there to be spoken. Along with Lanzmann, we know this as we watch him. When he is able to speak, his words fall into language, into archives. But the words fall from outside language, from an unspeakable time of linguistic plethora: unaddressed speech. The barber’s way of sounding the words is something pre-original, as if each word had never before been spoken. (Nothing in nature could have anticipated language, just as nothing whatsoever could have anticipated nature [which is why nature is not entirely natural: it is unprecedented]). This barber, a perfectly ordinary man, in his shop, speaks of something older than being: the improbable, the unimaginable. I do not think English is his native language. It is not Lanzmann’s. Indeed, the barber labors over each word he speaks as if he had no native language, no nature. Each word he sounds out is both necessary and au hasard

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impossible to say as if he were inventing the words one by one from out of a phonetic zone of pure indication that speech is possible. ‘‘I wanna tell you something,’’ he labors to say; ‘‘you felt nothing,’’ he says and then cannot go on speaking. ‘‘We have to do it,’’ Lanzmann says in a foreign tongue, ‘‘you know it.’’ What is this resistance to speaking? And who is it that resists both speech and silence? What resists the barber’s wanting-to-say, his address? What is it but memory and knowledge (which I have called ‘‘certainty’’): the memory of his exclusion from proper speech in the camps.

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bare sovereignt y Homo Sacer and the Insistence of Law There is no end, there is no possibility of being done with the day, with the meaning of things, with hope. —Maurice Blanchot, The Work of Fire

It has to be a puzzle how Giorgio Agamben’s evocation of ‘‘an obscure figure of archaic Roman law’’ has assumed such a purchase on recent political and philosophical thought.∞ This is the enigmatic figure of ‘‘homo sacer (sacred man),’’ a figure that for Agamben embodies ‘‘bare life’’ (8). What is ‘‘bare’’ about the life of homo sacer is that it can be taken by anyone, and that this is to be done without sacrificing that life (71). Bare life is in this way definitively apart from the law. It can be, and indeed can only be, taken away without the law’s authority or mediation. Such an exceedingly bare life is, for Agamben, manifested in the modern period in Foucault’s notion of biopower. This biopower, as Agamben sees it, has for its object a bare life within which ‘‘natural’’ life becomes, or begins to become, the pervasive, or the central, concern of political power (3). Bare life is the object of that biopower. Yet, for Agamben, Foucault has to be ‘‘corrected,’’ or at least completed, in terms that would advance what Foucault supposedly neglected—a persistent and illimitable sovereign power dealing death (9). Indeed, this sovereignty, apart from being located by Agamben in particular places, is constituted in its power over bare life, in its producing bare life. Leaving aside for now the resulting conundrum of something being constituted by what it itself produces, we may simply remark that sovereignty does this by being able to resort to a boundless state of exception that displaces the legal order. Thence, this ‘‘life of homo sacer . . . whose essential function in modern politics we intend to assert’’ will o√er up ‘‘the key by which not only the sacred texts of sovereignty but also the very codes of political power will unveil their mysteries’’ (8). Perhaps, then, the remarkable impact of a resurrected homo sacer has to do with this discovery of a quiddity in both modern sovereign power and its primordium of bare life. Like its exhausted predecessors, this revivified sovereignty can marvelously combine being determinate with an uncon49

strained e≈cacy. Unlike those predecessors, it can do this without recourse to a transcendental reference fusing these two contrary dimensions. Rather, this sovereign power can enclose itself yet extend indefinitely, subsist finitely yet encompass what is ever beyond it. It is little wonder, then, that Agamben’s account of this sovereign power alternates vertiginously between various stilled scenes and a hovering evanescence. Nor should it occasion much surprise that, as we shall see, his near-resolution of the sovereign divide should veer from a near-complete determination of existence to its near-complete mutation. Along with such oscillations, there are evocations of the law—of a law that, although orientated toward dissipation or ‘‘indistinction,’’ somehow still retains decisive e√ect and ‘‘form’’ (49–62, 174). It is this intriguingly irresolute law that, in my argument, underpins and provides cogency to Agamben’s account of homo sacer and sovereign power. Yet this is a treacherous support because such a law, a law that must in modernity subsist without reference beyond it, would deny the encompassing arrogation of a sovereign power because it constitutes that power. Of course, modern law has itself carried claims to a determinant sovereignty as the rule of law, but these very claims, I hope to show, are themselves incompatible with any abiding resolution. Before taking up that ambitious agenda, there has to be an uneasy qualification to my engagement with Agamben on sovereignty and with the archaic redoubt of homo sacer. All summary is fraught but here it is especially so. The main work in which Agamben deals with such things, Homo Sacer: Sovereign Power and Bare Life, is written in an episodic mode. It is made up of short, somewhat contained sections, the relation between which is not always evident. In describing a broadly similar writing mode of Agamben’s, Wall is of the view that ‘‘it is important to read each section or panel as superimposed on the others or as if each simultaneously occupied the same space.’’≤ This attractive response, in the present setting at least, would produce such an enormity of permutations and combinations as to make impossible any compendious account of what Agamben says. My strategy here is to concentrate on entities and connections in Homo Sacer that Agamben himself advances repeatedly or with particular force, even if this means that my coverage of the work will be less than comprehensive.≥

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Finding Homo Sacer To begin with what is for Agamben decisively a beginning, the informing origin both of modern political existence and of his project as it is being pursued in this and other works, the introduction of ‘‘the protagonist of this book’’ is provocatively unpropitious: it is, to repeat, a ‘‘bare life, that is, the life of homo sacer (sacred man) . . . an obscure figure of archaic Roman law’’ (8). Seeking out this place of origin, then, we would find that usually the study of Roman law, especially of ‘‘early’’ Roman law, involves a scrupulous e√ort to reconcile textual fragments, and this exercise is sometimes supplemented by reference to what historical context may be retrievable. Agamben, however, plumps instantly for one text on homo sacer and observes in it a seeming contradiction. He then organizes the more expansively engaged modern scholarship on homo sacer in terms of its not being able to explain one or the other side of the contradiction. From all of this he summarily concludes that ‘‘it appears that we are confronted with a limit concept of the Roman social order’’ (73–74). This he does without saying anything about that social order or about why it would be thus limited. Agamben’s sights are set elsewhere, being resolutely trained along the lines of the seeming contradiction that translates from Festus, the source of his ur-text, in this way: ‘‘The sacred man is the one whom the people have judged on account of a crime. It is not permitted to sacrifice this man, yet he who kills him will not be condemned for homicide’’ (71). Since it is not permitted to sacrifice this man, the life of homo sacer could be seen as outside of divine law, and since it is not homicide to kill him, that life could be seen also as outside of human law (73). Being thus outside any mediating or endowing law, homo sacer is for Agamben the originating figure of ‘‘bare life’’ or ‘‘bare life as such’’ (4). Yet Agamben still sees homo sacer as a ‘‘figure of ’’ the law (8). To that seeming conundrum we should now turn. Accompanying this story thus far is an alternation that recurs throughout Agamben’s book. Human life in this primal bareness is ‘‘included in the juridical order . . . solely in the form of its exclusion’’ (8); ‘‘as such’’ it is ‘‘outside’’ human and divine law (8, 73). The subsistent legal quality of that inclusion/exclusion is the core of my argument. Agamben’s founding authority, Festus, is describing a ‘‘law’’ that would seem quite inclusively to constitute homo sacer when so ‘‘judged’’ by the people ‘‘on account of a crime’’ (71). This judgment may even have involved some form of trial.∂ Like Festus, other authorities see the attributing of the status as a penalty laid bare sovereignty

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down by law for crimes that are often specified in the texts and often seen there as basic to the social order. Judgment is described as coming from the people, sometimes from their authorities. There is, however, one further complicating source to be dealt with. Having resorted to Festus to set homo sacer beyond the law, Agamben later derives the same result from Macrobius. He takes Macrobius to observe that ‘‘the fact that the killing was permitted implied that the violence done to homo sacer did not constitute sacrilege’’ (82). This, however, is to ignore the rest of Macrobius’s observation.∑ There one finds that ‘‘those men whom the laws order to be ‘sacred’ to certain deities’’ are considered as ‘‘of the gods,’’ as already sacrificed; hence, in giving e√ect to the laws, they could ‘‘be stripped of their bodies and sent thither.’’∏ This is a giving e√ect to or an executing of the law, of the law that sacrifices, and is thus not culpable. The simultaneous exclusion and inclusion of homo sacer extracted from Festus is in this way resolved by and within the law. It is true that there are other authorities who view the matter of homo sacer as involving pre-legal popular assertion, often of a ‘‘primitive’’ kind, even if this is seen at times as being later transformed into a judicial trial.π Agamben endows homo sacer with an entirely extralegal origin in approvingly citing one of the more florid modern perceptions: ‘‘The entire character of homo sacer shows that it was not born on the soil of a constituted juridical order, but goes all the way back to the period of pre-social life. It is a fragment of the primitive life of Indo-European peoples’’ (104). Indeed, Agamben finds that the pre-legal ‘‘Hobbesian state of nature is . . . a condition in which everyone is bare life and a homo sacer for everyone else’’ (106), not an assessment Hobbes would agree with.∫ Agamben holds to this extraor pre-legal quality despite the involving legalism of Festus and despite the necessity for Agamben’s own central contention that bare life be in some way included by ‘‘the juridical order.’’ This law that creates homo sacer can be delineated in a preliminary way by emphasizing the obvious: that homo sacer is sacred. As sacred, homo sacer occupies a meditative domain in between the profane and the transcendent beyond. Homo sacer is still of the profane. He fugitively occupies an all-toosolid world in which he can be killed without sacrifice. Yet homo sacer is also of the transcendent beyond. He has already been sacrificed. These two dimensions can only be combined in homo sacer because of the confident reference beyond, because of a sacrifice that has brought the beyond into the measure and contingency of a profane world. The life of this sacred man is ‘‘bare,’’ then, only because it has been consigned to an empyrean, leaving 52

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nothing for it in the profane world but to be killed. Without some such resolving and pervasively e√ective reference beyond, beyond life in the world, there is no position surpassing that life from which it can be observed or rendered as bare, no position so una√ected in its surpassing completeness that it can utterly exclude yet connect with the excluded. And without that resolving reference, we are left with what constituted homo sacer ‘‘in the first place,’’ with law. Law, in this light, is of the sacred. It determinantly combines what is determinately here with responsiveness to what is ever beyond, even if that determination is only and ever ‘‘for the time being.’’

Law and the Sacred Each of those two constituent elements of law in their extremity is outside the law, but with their decisive combining they become the law and are within it. The law that results is oriented toward an exteriority that is of the law yet ever beyond it. This law is determinate but never completely or enduringly so, and it responds to what is ever beyond the already determinate, yet it never responds completely. Completeness in either orientation would result in either stasis or dissolution. Not that within life, bare or otherwise, either condition is possible in itself. The combining of the determinate with what would transgressively go ever beyond it was once thought of in terms of the sacred. Some quality of the sacred in homo sacer seems central for Agamben. As he helpfully pointed out in an earlier work, ‘‘the sacred is necessarily an ambiguous and circular concept. (In Latin, sacer means vile, ignominious, and also august, reserved for the gods; both the law and he who violates it are sacred),’’ a proposition he immediately goes on to relate to the formulation of homo sacer provided by Festus.Ω And Festus explicitly obliges by adding after the explanation of the status of homo sacer that ‘‘this is why it is customary for a bad or impure man to be called sacred’’ (71). In agreement with an earlier Agamben, then, my argument will pivot on this ambivalence of the sacred and link this ambivalence to the insistence of the sacred in law, the sacred as determinantly restricting or separating o√ yet going ever beyond restriction—a≈rming itself yet being always other to itself. In Homo Sacer, however, there is a stark but inexplicit reversal of this standard idea of the sacred. The ambivalence is now denied and the transgressive attributed to a modern neurosis: ‘‘what is at work here is the psychologization of religious experience (the ‘disgust’ and ‘horror’ by which bare sovereignty

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the cultured European bourgeoisie betrays its own unease before the religious fact)’’ (78).∞≠ Agamben devotes a chapter to the claim that, in espousing this ‘‘ambivalence of the sacred,’’ impressionable linguists of Latin were led astray by a nineteenth-century biblical ethnographer of taboo, Robertson Smith, and the linguists in turn led astray all other ethnographers of the sacred (75–80). Doubtless Robertson Smith had a large influence in this matter on some of Agamben’s sources.∞∞ But to lay the whole notion of the ambivalence of the sacred at the door of this innocuous divine is fantastic. It is not only to disregard much perception of the sacred prior to Robertson Smith but also to discount utterly a varied and large ethnographic observation which Agamben hardly begins to engage with. Why, then, this seemingly imperative desire to reverse himself ? What appears to be involved here, although Agamben is anything but prolix in pointing it out, is the a≈rmation of an ‘‘autonomous’’ homo sacer, or the life of homo sacer, as the prima materia of the sacred, as its ‘‘most ancient meaning’’ having an ‘‘originary’’ quality and a specificity that cannot be dissolved ‘‘into an assumed originary ambiguity of the sacred’’ (74, 80). This meaning and these attributes have something to do with being somehow outside of the law. Homo sacer is already of the gods. No legally ordained sacrifice is needed to create him. Killing him does not involve the law. His life and its loss entail, or no longer entail, the mediations of the law. Such a life is either originary apart from the law, or it ‘‘is included in the juridical order . . . solely in the form of its exclusion’’ (8). It is in the light of this focal formula, this ‘‘sole’’ exclusion, that the ambivalence of the sacred is stilled and its ‘‘ancient meaning’’ made determinate and e√ective in modernity. Thence the sacred, as the monadic demarcation of the life imported by homo sacer, ‘‘constitutes the first paradigm of the political realm of the West,’’ of the now-modern West (9). And it is through designating this realm that the Foucault of ‘‘biopower’’ is ‘‘corrected or, at least, completed’’ (9). Before coming to the part of Foucault in this modern manifestation of the sacred, however, homo sacer has both to survive antiquity and extend to the modern period. It is not evident how he manages either feat.

Modernity and the Persistence of Homo Sacer Uncertain as its provenance and significance may be in the earlier reaches of Roman law, the figure of homo sacer poses no problem for the later periods since it has disappeared entirely. Attenuated links have been made with later 54

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forms of punishment, but these forms are quite di√erent.∞≤ Agamben’s main contribution to this e√ort is a bold assertion of similarity between the bare life of homo sacer and the position of the son subjected in Roman law to ‘‘the unconditional authority’’ of the father, to his ‘‘absolute . . . power’’ (87). Such formulations soon become more hesitant. The father now has ‘‘a kind of unlimited authorization to kill’’ a son who is ‘‘in a state of virtually being able to be killed’’ (89, italics added). These qualifications are apt because the power was not absolute and unconditional. It was defined, and confined, by law. The ‘‘life’’ on which it was brought to bear was a legally constituted status, and that life was not subordinated to a wholly unlimited power. Nor was it ‘‘included in the juridical order solely in the form of its exclusion’’ (8). Extravagant as Agamben’s uses of Roman law may be, they pale in comparison to his projection of homo sacer into the modern period. In some of Agamben’s most alluring analyses, parallels are drawn between homo sacer or ‘‘a kind of ’’ equivalent in antiquity and what are claimed to be manifestations closer to the modern (89), what Agamben may mean when referring, in an enviably confident comparison, to ‘‘a tenacious correspondence between the modern and archaic which one encounters in the most diverse spheres’’ (6). These remain simply parallels, except for one that seems to be the pivotal point, the point of actual or revealed connection between the politics of modernity and what Agamben presents as bare life explicitly. He introduces the point in this way: The first recording of bare life as the new political subject is already implicit in the document that is generally placed at the foundation of modern democracy: the 1679 writ of habeas corpus. Whatever the origin of this formula, used as early as the eighteenth century to assure the physical presence of a person before a court of justice, it is significant that at its center is neither the old subject of feudal relations and liberties nor the future citoyen, but rather a pure and simple corpus. (123) This is close to fanciful. The reference has to be to the English Habeas Corpus Act of 1679. This was in part a consolidation of what had long been the law and a remedying of minor problems, a measure ‘‘altogether made up of details,’’ as Maitland put it.∞≥ A case using habeas corpus in its seemingly modern form can be found in 1214, and from the report of the case it is obvious that the writ was already commonplace.∞∂ Indeed there were several medieval writs of habeas corpus serving a wide range of functions and the legal usage ‘‘corpus’’ was not confined to them. Even in its more modern and bare sovereignty

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romantic guise as the vehicle of a nascent liberty wrested from an overweening executive, the writ was not ‘‘used as early as the eighteenth century’’ but as early as the sixteenth. Nor was there anything ‘‘bare’’ about the body in question. The writ’s injunction to have the body before the court, to bring it within the purview of judicial review, referred to a particular person specified within the law, to a singular subject within the legal jurisdiction of the court and not just to a politically infused organic lump.∞∑ Even if homo sacer endures in Roman law and enters the modern ‘‘West,’’ what remains significant for my purposes are the terms of that putative persistence, their constitution in or through law, along with the consequent denial of a completeness of sovereign power over a bareness of life. It is now apt to connect these terms to Agamben’s corrective engagement with Foucault and with the resulting identification of a sovereign power, the presence of which Foucault supposedly fails to appreciate.

Completing Foucault Admittedly it is not one of Foucault’s meticulously grounded notions, but his discovery of ‘‘biopower’’ does provide some plausible basis for ‘‘bare life.’’ Agamben’s imaginative resort to homo sacer is impelled by its supposedly making good a deficiency in Foucault’s scheme. The Foucault unreservedly relied on is the one who saw that in modernity life becomes isolated as an object of perception and regulation, a new domain for the operation of power, a domain in which life is put ‘‘in question’’ and where it can be both protected and eliminated.∞∏ Such explicit putting in question, it could be added, is for Foucault ‘‘a way of living and not a way of killing,’’ even if the consequent living may not be of an exalted kind.∞π Although Agamben would consider this domain to be continuous with antiquity rather than novel, he accepts it substantially even if he finds it to be pointedly incomplete. Specifically, he sees Foucault as having denied the (continuing) significance of sovereign and legal power—denied especially by Foucault’s setting this sovereign and legal power in opposition to a supervening and tentacular biopower. For Agamben the two modalities coexist and ‘‘it can even be said that the production of a biopolitical body is the original activity of sovereign power’’ (6). Doubtless there is something in Foucault to support the charge, most pertinently his perceiving the displacement of an exceptional sovereign power

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focused on death by a normalizing power focused on life, but to leave it at that is to sell his position significantly short.∞∫ For Foucault as well, the two powers co-exist, forming a ‘‘scientifico-legal complex’’ or a single process of ‘epistemologico-juridical’ formation.’’∞Ω His discovery of a ‘‘governmentality’’ typifying modernity involved the ‘‘intersection of two processes,’’ one being a post-feudal ‘‘state centralization’’ and the other being the ‘‘dispersion’’ of an ecclesiastical and pastoral power which did import the collective and detailed ‘‘managing of a population,’’ but a pervasive sovereignty had not ‘‘ceased to play a role.’’≤≠ Elsewhere he says ‘‘the powers of modern society are exercised through, on the basis of, and by virtue of, this very heterogeneity between a public right of sovereignty and a polymorphous disciplinary mechanism.’’≤∞ Nonetheless Foucault claimed to locate ‘‘an important turning point’’ in the seventeenth and eighteenth centuries when the ‘‘managing of a population’’ takes on a ‘‘pre-eminence over’’ sovereignty and law.≤≤ Indeed, if the dual formation is to endure, the side associated with life has to exceed sovereignty and its ‘‘putting to death.’’≤≥ The point is dramatized in Foucault’s lectures given at the Collège de France when, in instancing ‘‘Nazi society’’ as the extremity of the biopolitical, he adds that this ‘‘was also a society which unleashed murderous power, or in other words, the old sovereign right to take life’’; and since that deathly power was accorded ultimate e√ect, the state under Nazism was ‘‘an absolutely suicidal State.’’≤∂ Short of expiring in that terminal condition, the biopolitical has to entail a ‘‘disqualification of death,’’ a power ‘‘essentially to make live.’’≤∑ To acknowledge Foucault more fully, then, is not only to mark unremarked similarities with Agamben’s account but also to provide a contrast to it, and this no more so than in the matter of the containment of ‘‘life.’’ If in Foucault’s scheme life necessarily takes on a certain vitalist excess—‘‘a way of living in complete mobility and not of immobilizing life’’≤∏ —then Agamben is more wedded to the immobility of his dedicatory quotation from Paul: ‘‘And the commandment, which was ordained to life, I found to be unto death’’ (ix, 11).≤π The bare life, typified by the figure of homo sacer, in its sacredness ‘‘originally expresses precisely . . . life’s subjection to a power over death’’ (83). And, again in contrast to Foucault’s subordination of sovereignty, Agamben announces a sovereignty that produces and dominates bare life—‘‘the production of a biopolitical body is the original activity of sovereign power’’ (6). Most compendiously: ‘‘The sovereign sphere is the sphere in which it is permitted to kill without committing homicide and

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without celebrating a sacrifice, and sacred life—that is, life that may be killed but not sacrificed—is the life that has been captured in this sphere’’ (83). Yet what Foucault provides is a way of seeing that, in the combination of sovereignty and biopower, ‘‘the commandment’’ is to death and to life, to a negating exclusion and to an encompassing inclusion. Quite apart from Foucault’s ‘‘failure’’ to provide it, there is yet another and more pointed environment for Agamben’s sovereign rule over bare life, and that is found in his extensive reliance on Schmitt’s concept of the exception.

Being Exceptional ‘‘Sovereign is he who decides on the exception,’’ decides on e√ecting a state of exception to the ‘‘normal’’ legal order. For Schmitt sovereignty is ‘‘a borderline concept’’ in that it marks the border between the exceptional and the normal. Put a little more expansively, the sovereign is revealed only in or after the decision on the exception, the decision whether or not a state of exception exists and, therefore, the decision whether the normal order exists. That decision will ever relate to an indeterminate arena and cannot be figured in advance: ‘‘it cannot be . . . made to conform to a preformed law.’’ Or, ‘‘the precondition as well as the content of jurisdictional competence in such a case must necessarily be unlimited.’’ What is entailed, in sum, is an ‘‘independently determining moment.’’≤∫ Yet for Schmitt the exception is not simply beyond the normal order and ‘‘preformed law.’’ It is also imbued with law. Law constitutes the decision maker and constitutes the matters decided upon, broad as they may be—‘‘the public interest or interest of the state, public safety and order, le salut public, and so on.’’ Indeed, it is ‘‘the legal system itself [which] can anticipate the exception and can ‘suspend itself ’ ’’; and with the exception in operation ‘‘order in the juristic sense still prevails.’’ Admittedly, ‘‘how the systematic unity and order can suspend itself in a concrete case is di≈cult to construe, and yet it remains a juristic problem as long as the exception is distinguishable from a juristic chaos.’’ In all, although the sovereign ‘‘stands outside the normally valid legal system, he nevertheless belongs to it,’’ and sovereignty remains ‘‘a juristic concept.’’ As such, it is juridically dependent and cannot have the self-su≈ciency Schmitt would attribute to it and be ‘‘independently determining.’’≤Ω The sovereign revealed in the decision on the exception can neither stand constituently complete and apart from the decision nor can it fixedly encompass the quality of the political that, as Derrida has shown, it 58

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entails—that is, encompass the ineradicable openness of the political, its always putting position in question.≥≠ Looking at constituent completeness in another way, and in terms of Derrida’s arch query, ‘‘one wonders who said—and often in so convincing a manner—that all the concepts of the modern theory of the State are secularized theological concepts, and that one must start from theology if one is to understand them, and if one is to understand the concepts of decision, exception and sovereignty.’’≥∞ Not only is this ‘‘the central and organizing a≈rmation’’ of Schmitt’s Political Theology (1985), but the sovereign ‘‘himself ’’ would fit the terms of that a≈rmation, the sovereign as a ‘‘secularized theological concept’’ or, borrowing Schmitt’s terms, as one of the ‘‘mundane factors that have taken the place of God.’’≥≤ It takes a deific ability not only to occupy the suprahuman and unalloyed beyond, the realm of the purely possible, but also to embed an assured determinate order. And although sovereignty would optimistically in itself combine being determinate with an illimitable e≈cacy, it can no longer rely on a transcendental reference to combine these contraries. Rather, as a secularized theological concept, sovereignty would in itself subsist finitely yet encompass what is ever beyond it. In enabling itself to do this, sovereignty makes a constituent claim that is legal, a claim of right. No amount of asserting the happening or existence of a sovereign act or condition can make the qualitative leap to a being-in-right. The matter could be posed in practical terms by asking how sovereignty could be sovereign without the law, how it could accommodate the claims of continuance without extending itself within the law. The sovereign has to traject temporally not just what it would continuously require of its subjects but also its very own being, and in so doing it must sustain both requirement and being beyond, or even contrary to, the impelling force of existent factuality. Both requirement and being share what Beardsworth discerns as ‘‘the essential lack of identity to all human organizations.’’≥≥ In an immediate way, this could be seen as the inevitable lack in the identity of the organization as it faces the vagaries of future time, but that same lack must also be seen as intrinsic to the identity itself. What the organization is ‘for the time being’ will always lack in relation to what in time constantly impinges on and challenges it, but the survival of the organization beyond its fleeting foundation, its continuance, will depend on its constituently integrating that lack. To do this, the modern organization has only one continuously extensive and amenable means, and that is the law. And to say that the bare sovereignty

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law provides such a means is not to subordinate it instrumentally to the sovereign organization. The organization can only be, or continue to be, within the sustaining law. I will return shortly to the quality of law that extends to and sustains sovereignty, but for now, and before leaving Schmitt’s exception, it could be suggested that the sovereign-creating exception comes to resemble the involving lineaments of the law itself as these were extracted from my earlier dissection of homo sacer and the sacred. The exception manifests a similar combining of law’s being determinate with its responsiveness to an exteriority beyond, even if the exception is a variation or, rather, an enormous range of variations of that combining nexus, or a di√erent ‘‘jurisdictional competence’’ as Schmitt would have it.≥∂ When it is looked at from the perspective of the norm, the norm as both the normal ‘‘order’’ and as a particular rule, it is obvious that this norm cannot be something invariantly positive or posited. Instantiations of the norm always entail a transgression of what the norm had been, entail its becoming other to what it was. The norm, in short, always subsists along with its own exception. The exception is unexceptional. This self-exception is not, or is not just, a matter of the undermining and the explicit change of the norm. For its sustained integrity, for the norm to remain the norm, it can neither dissolve in what was other to it nor endure in a stasis where it would become increasingly unrelated to a world ever changing around it. In adapting Schmitt’s ‘‘exception,’’ Agamben does aptly catch this ‘‘force’’ of law in its integral relation to an exteriority: ‘‘The exception does not subtract itself from the rule; rather, the rule suspending itself, gives rise to the exception and, maintaining itself in relation to the exception, first constitutes itself as a rule. The particular ‘force’ of law consists in this capacity of law to maintain itself in relation to an exteriority’’ (18). Yet he finds that the power of the exception is also apart from law. ‘‘The sovereign nomos’’ cannot be positioned only ‘‘inside,’’ but must somehow extend intrinsically to an ‘‘outside’’ from which there can be ‘‘the creation and definition of the very space in which the juridico-political order can have validity’’ (19). Only in being positioned outside, says Agamben, can there be ‘‘the space in which it is possible to trace borders between inside and outside and in which determinate rules can be assigned to determinate territories’’ (21). Specifically in relation to the exception, then, in tracing ‘‘a threshold (the state of exception)’’ between the ‘‘outside’’ and ‘‘the inside,’’ ‘‘the sovereign exception’’ serves to ‘‘make the validity of the juridical order possible’’ (19). 60 peter fitzpatrick

This assertive ‘‘outside’’ now proceeds to consume the ‘‘inside,’’ for Agamben pits the exception against the norm in the evocation of a ‘‘new’’ situation supervening ‘‘in our age,’’ a situation in which there is a dramatic change and the exception, as it were, takes over, or comes more and more to take over, ‘‘and ultimately begins to become the rule’’ in a displacement of the normal order (20). ‘‘The state of exception thus ceases to be referred to as an external and provisional state of factual danger and comes to be confused with juridical rule itself ’’ (168). In the result, ‘‘the exception everywhere becomes the rule . . . and exclusion and inclusion, outside and inside, . . . right and fact, enter into a zone of irreducible indistinction’’ (9). Or, as Agamben says of his paradigm case (which we will come to shortly), there is ‘‘a hybrid of law and fact in which the two terms have become indistinguishable’’ (170). The indistinction and its impelling exception are conceived of as expansionary or by now near-pervasive, since Agamben presents a brief but impassioned apocalyptic in which they have brought us to the brink of ‘‘biopolitical catastrophe’’ (12, 188). With this indistinction, both the condition or zone and its component parts are nonetheless delineated with some distinctness and clarity. For example, Agamben instances a strangely solitary factuality in the state of exception when he remarks that ‘‘a person who goes for a walk during the curfew is not transgressing the law any more than the soldier who kills him is executing it’’ (57). And, on the other side of the divide, Agamben’s paradigm case of the state of exception is said to be the result of ‘‘juridical procedures’’ (171). The pervasive state of exception itself is described in terms of structure, permanence, ‘‘a new and stable spatial arrangement,’’ and accorded the ability to occupy ‘‘absolute space’’ (20, 169– 70, 175). How then in ‘‘our age’’ can there be a combination of such determinate identity or attributes with an expansionary indistinction, a combination found in classic conceptions of sovereign power? The answer, for modernity, would seem to lie in the object of that power, in bare life.

The Life of the Law Agamben moves markedly beyond the ‘‘exceptional’’ sovereignty just extracted from Schmitt and a≈rms something of its classic conception. On that reading of him, for Schmitt the sovereign was still a juridical entity. Both its determinate identity and its ability to extend disruptively beyond a determinate, a positive order subsisted with-in the juridical. Nonetheless, Schmitt would sharply distinguish this ‘‘normal’’ order from an abnormal and tranbare sovereignty

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sient, and exceptional, occupation of that beyond.≥∑ The analysis I have just o√ered would also combine these things in and as law. Expanding that analysis somewhat now, the determinate, as the place of determination, and the beyond, to which law has ever to respond, cannot in law be separated from each other, either entirely or in some calculated proportion, and neither can one be subordinated within the other. Each su√uses the other to its full extent. The responsive cannot be purely beyond and thence be merely inaccessible. It must be positioned in realizable possibility or, put another way, oriented toward determinability. Neither, however, can a determinant position be irenically set. The assertion of position has always to be made in relation to the infinitely responsive. Position cannot be enduringly stilled in its completion, or in or at any point, or in any severable part. It is, moreover, the absence, the impossibility, of an assured synthetic shielding that creates the very demand for law, that iteratively calls for the legal decision or for determination. Even, or especially, at its most settled, law could not be otherwise than responsive to what was beyond its determinate content. If that content could be perfectly stilled, there would be no call for decision, for determination, for law. And it is in the very response to this call, in the making and sustaining of its distinct content, that law ‘‘finds itself ’’ as integrally tied to, and incipiently encompassing of, its exteriority. The very content of law is incessantly pervaded by the relation to what is beyond it ‘‘for the time being.’’ It must itself be labile and protean to an illimitable extent. This responsive movement of and in law carries with it a primal lack of limitation, an intrinsic inability to be bound to any pre-existent, a pervading incompletion, all of which would go in standard accounts of law’s ‘positive’ existence to confirm if not establish its autonomy, its independence of any interests set apart from its own generative grasp. Yet if law is su√used by responsiveness, if—as one jurisprudential tradition would require—it must ever respond to society, historical change, and such, then law is (also) intrinsically dependent and derivative, quite lacking in any content of its own. That which remains, that comprehensive lack, is akin to what Agamben would see as a pure form of law, as law ‘‘being in force without significance’’ (51). This is a quality of law’s existence that Agamben constantly ties to the exception: ‘‘Law is made of nothing but what it manages to capture inside itself through the inclusive exclusion of the exceptio: it nourishes itself on this exception and is a dead letter without it’’ (27). Thence the exception becomes ‘‘the originary form of law’’ (26). And so we find that the sovereign exception 62

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is not ‘‘a power external to law’’ (28). Drawing back, now, from this whole scenario, we see that the sovereign is internal to a law that is self-animating, yet, as we noted earlier, for Agamben the sovereign is also external to law and, as so positioned, animates it. The sovereign decision ‘‘represents the inscription within the body of the nomos of the exteriority that animates it and gives it meaning’’ (26). Here, in sum, is ‘‘a threshold in which life is both inside and outside the juridical order, and this threshold is the place of sovereignty’’ (27). That threshold, I have just argued, is the place of law, the place where the determinative decision is made as to what the law is, the place where the very form of law, the form that Agamben seems simply to assume, is formed: ‘‘Let us grant,’’ says Blanchot, ‘‘that the law is obsessed with exteriority, by that which beleaguers it and from which it separates via the very separation that institutes it as form, in the very movement by which it formulates this exteriority as law.’’≥∏ Although it can be said that this exteriority is of or in law since law is unceasingly and intrinsically pulled by exteriority beyond what it may at any time determinately be, law cannot comprehensively appropriate exteriority. And that exteriority can be occupied in ways other than by law, ways that would include sovereign claims to it, among others. Such a sovereign claim could import that ‘‘pure violence’’ that Agamben derives from Benjamin in this present collection, remembering that for Benjamin this was ‘‘divine violence,’’ a violence which ‘‘may be called sovereign violence’’—and remembering also that this divine, and sovereign, quality is lost once the violence is reduced in the existent.≥π If sovereign claims are to be any more than evanescent, if they are to assume an operative continuance, they then become integrally tied to law.

Barely Living Agamben would seem to be after something more resolutely monadic than this irreparably fractured scene. The ‘‘threshold [that] is the place of sovereignty,’’ ‘‘a threshold in which life is both inside and outside the juridical order,’’ is ‘‘a limit-figure of life’’ (27). Law, as Agamben would have it by way of a borrowing from Savigny, ‘‘has no existence in itself, but rather has its being in the very life of men’’ (27). This is ‘‘the life that constitutes the first content of sovereign power,’’ and the ‘‘production’’ of that life is ‘‘the originary activity of sovereignty,’’ an originating sovereignty within which ‘‘law refers to life and includes it in itself by suspending it’’ (28, 83). Now, it may be bare sovereignty

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readily granted that a life subject to the determination of a law that can ‘‘suspend’’ it would be indeed a bare life, and it is such a life that Agamben sees as somehow both created by and constituting sovereignty. This same ‘‘life’’ also extends for Agamben to the conception of an ontologically whole life (188). Yet, despite intimations that it may be so, this does not seem ultimately to be a purely immanent life, ‘‘immanent’’ in the sense evoked by Deleuze and Guattari, for whom immanence is characterized by ‘‘openness’’ and ‘‘movement of the infinite [that] does not refer to spatiotemporal coordinates’’; such immanence is akin to ‘‘chaos,’’ ‘‘formless, unlimited, absolute’’; it ‘‘escapes every transcendence of the subject as well as the object.’’≥∫ Or, in terms of Agamben’s moving engagement with Deleuze on the immanence of life, that immanence ‘‘is precisely what can never be attributed to a subject, being instead the matrix of infinite-desubjectification.’’≥Ω And, as Deleuze and Guattari would counsel, ‘‘whenever immanence is interpreted as immanent to Something, we can be sure that this Something reintroduces the transcendent.’’∂≠ For Agamben sovereignty does seem to be ‘‘Something.’’ Although it extends to the whole of life, and is an ‘‘absolute space,’’ sovereignty is also structured, stable, a ‘‘materialization’’ (8, 20, 46, 90, 170, 174). Summarily then, we find that somehow or other the constitution of that homo sacer that originates bare life endured and is transferred to sovereignty. Again: ‘‘The sovereign sphere is the sphere in which it is permitted to kill without committing homicide and without celebrating a sacrifice, and sacred life—that is, life that may be killed but not sacrificed—is the life that has been captured in this sphere’’ (83). This ‘‘bare life or sacred life, is the always present and always operative presupposition of sovereignty’’ (106). It ‘‘becomes the earthly foundation of the state’s legitimacy and sovereignty’’ (127). Despite that finite location, ‘‘all life becomes sacred’’ or bare, and ‘‘the bare life of homo sacer’’ is now an ‘‘irreducible,’’ an encompassing ‘‘condition in which we . . . find ourselves’’ (100, 148, 153). Yet this sovereign and sacred pervasion itself retains a profane palpability as ‘‘earthly,’’ as ‘‘a task,’’ as part of a ‘‘process’’ (127, 153, 164). It can still be grasped as a ‘‘space’’ and as ‘‘the figure of an action’’: ‘‘The sovereign and homo sacer are joined in the figure of an action that, excepting itself from both human and divine law, from both nomos and physis, nevertheless delimits what is, in a certain sense, the first properly political space of the West distinct from both the religious and the profane sphere, from both the natural order and the regular juridical order’’ (84).

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This distinctness and seeming solidity appear to accommodate ‘‘bare life as such’’ in terms of its being the specular concentration of modern sovereign power (4, 188). Yet it is di≈cult, to say the least, to comprehend bare life as such. Given its pervasion, how do we know where we may stand apart from it and in some way delineate its figuration, its delimiting, or experientially relate to it in its bareness—in its being ‘‘without any mediation,’’ bereft of any manifesting norms and forms (171)? How may ‘‘man’’ as ‘‘the living being who . . . separates and opposes himself to his own bare life and, at the same time, maintains himself in relation to that bare life’’ distinguish and demarcate it in order to be able to do so (8)? This di≈culty is heightened in bare life’s being, or also being, ‘‘a zone of indistinction and continuous transition between man and beast, nature and culture,’’ or in its being, or also being, a ‘‘threshold or articulation between nature and culture, zo¯e and bios’’—between zo¯e, ‘‘the simple fact of living’’ or ‘‘simple natural life,’’ and bios, a mediated or ‘‘qualified life,’’ bios as referring to ‘‘the form or way of living proper to an individual or a group’’ (2, 109, 181). True to its being of this ‘‘threshold . . . which is neither simple, natural, nor social life,’’ Agamben’s account of bare life veers from one to the other. In the result, bare life is found to be ‘‘indeterminate and impenetrable’’ (182). So, the bare life informing sovereignty also and aptly reproduces its classic pretensions. It can be determinate yet indeterminate, and these dimensions are fused in a resolved or ‘‘absolute’’ achievement. These dimensions are also, as I have indicated, the dimensions of law in modernity, but, in the absence of a resolving reference with-in law, they can subsist only in apposition, in being proximate and applied to each other along with their being parallel and opposed. I have already, earlier in this chapter, emplaced these less than surpassing qualities of legal sovereignty with-in the bare life of homo sacer, and with-in its character of the sacred. To complete this immanent style of analysis, it would be as well to extract the dimensions of law from what Agamben sees as current manifestations of bare life. In a way this has just been done in relation to bare life in its generality and pervasion, in the entirety of its ‘‘transforming’’ e√ect (120). Yet Agamben also instantiates bare life in an emplaced diversity—in, for example, the refugee and ‘‘the zones d’attentes of our airports’’ (126–35, 175). There is, however, an instance that hugely predominates, that provides ‘‘the most absolute’’ realization of bare life, that e√ects a ‘‘total domination,’’ and that instance is the concentration camp, of the German kind. What is more, ‘‘the camp’’ is the ‘‘organizing

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structure of the nomos’’ that utterly typifies ‘‘our age,’’ ‘‘the hidden matrix and nomos of the political space in which we are still living,’’ ‘‘the fundamental biopolitical paradigm of the West’’ (20, 166, 181). Although nomos is the scene of law and judgment, Agamben finds that the ‘‘exceptional’’ situation of the camp is ‘‘produced’’ de facto, and that the camp constitutes ‘‘a new juridico-political paradigm’’ in which the legal question is ‘‘no longer strictly distinguishable’’ from the factual; indeed, ‘‘every question concerning the legality or illegality of what happened there simply makes no sense’’ (170). In this ‘‘absolute indistinction of fact and law’’ (171), the exceptional becomes normal, and what pervades is something other than the legal—if not entirely the reign of fact, at least a reign in which law cannot be distinguished from fact. Perhaps understandably then, the bare life which Agamben situates in the camp inclines very much toward the factual givenness of zo¯e, and toward that determinate completeness encapsulated by a homo sacer destined only to lose that life (cf. 185). The paradigm of this bare life in the camp, Agamben finds, is the Muselmann, a kind of homo sacer realized in the person, a person still mobile but rendered apparently insensate by his treatment in the camp, especially, it would seem, by nutritional deprivation. ‘‘The Muselmann in some sense marked the moving threshold in which man passed into non-man,’’ marking and even becoming, so Agamben decrees, ‘‘a point at which human beings, while apparently remaining human beings, ceased to be human.’’ This loss of ‘‘all traces of a√ective life and humanity’’ can, it would seem, also typify the ‘‘well-fed,’’ such as the commander of Auschwitz, if they become reduced to being a mechanical response to directions.∂∞ Again one must wonder, as with the pervasion of bare life, from what omniscient position Agamben can discern such things—discern these entities as marking a limit of, and being beyond, the human. However, if the camp was typified by a determinate completeness, it also manifested an arbitrariness of decision that was ever open or incomplete. Drawing again on Schmitt, Agamben notes how the introduction of ‘‘indeterminate clauses’’ into the law in the twentieth century, deciding in accord with ‘‘good morals’’ or ‘‘public security and order,’’ for example, ‘‘rendered obsolete the illusion of a law that would a priori be able to regulate all cases and all situations and that judges would have to limit themselves simply to applying’’ (172). Here there can be no given and determinate completeness but, rather, something more like law as illimitably extensive and responsive. Agamben sees this happening in the camp through the indistinction be66 peter fitzpatrick

tween fact and law, yet the ‘‘biopolitical body’’ that is bare life is produced there by the decision, and the act of decision that would seem to be of the law, and not simply of a given factuality. So, ‘‘fact and law are indistinguishable’’ indeed; yet, Agamben adds, they ‘‘must, nevertheless, be decided on’’ (27, and see 173). The meaning of ‘‘bare life’’ now inclines more toward bios, a mediated life the existence of which is ever and necessarily filtered through something else. Existence of this kind can still be typified by the homo sacer whose life ‘‘as such’’ has been sacrificed and set at naught. This vacuity or bareness corresponds, it could be said, to that life subjected to the ‘‘pure form of law’’ described by Agamben, law that ‘‘is all the more pervasive for its total lack of content’’ (51–52). Connecting these two dimensions of the camp, then, bare life accommodates the determinately set and what is ever yet mediately beyond determination. These, as we have seen, are the dimensions combined in law—dimensions presented here in something close to their stark extremes. Rather than reach a peremptory conclusion now that ‘‘the camp’’ is the paradigm of law, or of the ‘‘nomos of the planet’’ (176), it may be as well to first observe the seeming conflict in Agamben’s account of law in the setting of the camp. To see the camp as constituting ‘‘a new juridico-political paradigm’’ suggests some distinctness of the juridical, yet we are told repeatedly that in the camp, and now in our era generally, there is an ‘‘absolute indistinction of fact and law’’ (170–71, 187). Or, more pointedly, in the ruling state of exception typified by the camp, ‘‘fact and law are indistinguishable (yet must, nevertheless, be decided on),’’ and thence, presumably, distinguished (27). It could be said, then, that the camp is paradigmatic of law in the further sense of sharply manifesting what could be called the stages of any legal decision. In its making, the legal decision is a ‘‘madness’’ in which the existent law and fact (and other things) are enmeshed until the decision is made as a law that will incorporate some erstwhile facts (and other things) and decidedly reject others, whence that new law will become further enmeshed with facts (and other things), and so on ever iteratively.∂≤ There cannot, that is, be a law unless it is ‘‘distinguished’’ surpassingly from the ‘‘facts’’ that endow it with content. And such surpassing law must be ever able, as we saw, incipiently to take its exteriority into itself. Although such a law, a law empty of pre-existent content, in its ‘‘pure form,’’ is an idea of law Agamben would want to advance (51–52), it is not one that fits the law found in the camp. The law there is filled with a preexistent content that so comprehensively contains and so pervasively domibare sovereignty

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nates it that it could be seen as indistinguishable from the ‘‘fact’’ of that content, although it could be more accurately described as instrumentally subordinated to such fact. The extensive, the responsive or incorporative force of law is subsumed within a predetermined telos. The massive fact of the camp, then, is that it was a work of death, set apart from and ultimately withdrawn from life, and constituently committed to its cessation. The camp may indeed exemplify a power of death over life, but as such, it is incapable of continuance.∂≥ The ‘law’ of the camp is the antithesis of that law that has always ‘in’ itself exceeded any limit, any end or eschatology. That law which, indeed, ‘‘has its being in the very life of men’’ (see 27). It may dispel a Panglossian aura attaching to that conclusion if we return to the theme kept in suspended animation, as it were—the theme of the excess of life over death in Foucault’s combining sovereignty and biopower. My concern has been more constrained, dealing as it has with law and the relation between law and sovereignty. But with law having ‘‘its being in the very life of men,’’ and with that law necessarily extending to and being of its lifeful exteriority, some regard for Agamben’s perception of the death-driven reign of sovereignty is unavoidable. I have tried to indicate that this perception is hardly made out in terms of Agamben’s claim for the persistence of homo sacer beyond antiquity and for the entry of this figure into the modern period. Agamben’s more directly rendered versions of a sovereign thanatocracy are no more convincing. He o√ers two modes of conceiving a modern bare life and its conjured ‘‘correlate of sovereign power’’ (153). One mode is that of the totality—sometimes of the planet, sometimes of ‘‘the West’’—a mode in which the pall of bare life/sovereignty is about to encompass all in yet another philosophically perceived ‘‘catastrophe’’ (12). Even now, ‘‘homo sacer is virtually confused with the citizen’’ and politics has been ‘‘totally transformed into biopolitics,’’ so much so that it is no longer possible to di√erentiate ‘‘between our biological body and our political body’’ (120, 171, 188). Agamben would qualify yet confirm the totality in envisaging its replacement by an alternative plenitude. This comes with the revelation, unencumbered by detail, of a marginal mutation of the existing near-catastrophic situation that is somehow also its redemption (153, 188). The possibility or prospect of this messianic scene depends on an excess of life over death, on the ultimate denial of a death-driven sovereignty. The other mode of conceiving of bare life/sovereignty comes with its varied instantiation—in ‘‘the camp,’’ refugees, zones d’attentes, and some few others—added to the rendering one of them, ‘‘the camp,’’ as paradigm. Whether one could by way of 68 peter fitzpatrick

induction plausibly arrive at a general condition of sovereignty or bare life derived from alleged instances could depend on the quantity and the quality of these instances. The camp, rather obviously, is a monumental one, but its paradigmatic quality is not made out. The others do not seem, on this score, to be accurately observed. Taking as an example the instance which, besides the camp, most concerns Agamben (131–34), ‘‘the refugee’’ does not seem to be in a situation of simple ‘‘abandonment’’ where ‘‘something is included solely through its exclusion,’’ returning to Agamben’s focal formula (18). The refugee is inclusively recognized as part of the ‘human’ community through international and national laws of some e√ectiveness. Returning to and ending with law, it would be ungracious not to acknowledge that Agamben has hit upon a telling perversion of law in one occidental manifestation of it. The instrumental or pragmatic appropriation of law to purposes somehow set above it is commonplace, but not invariable, within an occidental modernity. This subordination of law has also and for long been the subject of much acute complaint.∂∂ What Agamben adds to this in the drama of homo sacer is a current resonance, one which illuminates an orientation of certain modes of occidental assertion. So, staying with the instance of the refugee, there are moves within various states that would render the refugee now in terms closer to a ‘‘bare,’’ rightless existence. There is also, and finally now, a more existentially expansive resonance to Agamben’s emplacing death. The sovereign, and legal, constitution of ‘‘determinate rules assigned to determinate territories’’ is in a sense a denial of life. One mode of existence, territorially predominant, is being elevated or a≈rmed and another denied. There is exclusion here, but also inclusion. And for law, inclusion is irreducible. If law is to extend to and be of its exteriority, it cannot ultimately or finally exclude in death, for to do so would be to deny that constituent ability of inclusive extension. That same ability, denying as it does any abiding purchase anterior to the law, entails our being always inceptively excluded by the law, and in so doing law creates an abandoned existence. We are in this way bare before the law, and ‘always/already’ sacrificed in relation to it. Yet this ground of exclusion is itself groundless. In its absence of fixed content, in its vacuity of pure form, in its absorbing ‘‘the outside into which it is always receding,’’∂∑ law incipiently includes us, and when so doing it creates mediated life—and the mediated life is the only life we can sentiently be with. We cannot live in a terminate bareness, ‘‘without any mediation’’ (171). We can live only mediately.∂∏ bare sovereignty

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notes 1 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Stanford: Stanford University Press, 1998), 8. Parenthetical page references in the text will be to this work. On the di√usion of Agamben’s concepts, even the higher journalism seems to have been reached—see the use of ‘‘state of exception’’ in a way that conforms to Agamben’s in Jamaï (2001): 4. 2 Thomas Carl Wall, Radical Passivity: Levinas, Blanchot, and Agamben (Albany: State University of New York Press, 1999), 121. 3 My brief here is to engage with the notion of homo sacer, and my invocations of Agamben’s wider philosophy are not extensive. For an account of that philosophy, which I presumptuously and gratefully take to be in line broadly with my argument here, see Adam Thurschwell, ‘‘Specters of Nietzsche: Potential Futures for the Concept of the Political in Agamben and Derrida,’’ Cardozo Law Review 24 (2003). Although, perhaps with equal presumption, my orientation is opposed to Agamben’s, it is not simply opposed—and that will become evident. 4 W. Ward Fowler, Roman Essays and Interpretations (Oxford: Clarendon, 1920), 23. 5 See James Leigh Strachan-Davidson, Problems of the Roman Criminal Law, vol. 1 (Oxford: Clarendon, 1912), 8–9. 6 Cf. Fowler, Roman Essays, 16, and Harold Bennett, ‘‘Sacer Esto,’’ Transactions of the American Philological Association 61 (1930): 7–8. 7 For instances of these various points see Strachan-Davidson, Roman Criminal Law, 12, 13, 16; Fowler, Roman Essays, 17–18, 22–23; and Bennett, ‘‘Sacer Esto,’’ 5–6. 8 Hobbes, Leviathan (Chicago: Encyclopedia Britannica, 1952), 85–86 (chap. 13). 9 See Giorgio Agamben, Language and Death: The Place of Negativity, trans. K. E. Pinkus and M. Hardt (Minneapolis: University of Minnesota Press, 1991), 105. I am grateful to Nasser Hussain for pointing this out. 10 Cf. Sigmund Freud, Moses and Monotheism, trans. Katherine Jones (New York: Random House, n.d.), 154–55. 11 Sigmund Freud, Totem and Taboo, trans. James Strachey (New York: Avon, 1960), chap. 4; Fowler, Roman Essays, 17. 12 Contrast here Agamben’s treatment of the penalty aquae et igni interdictus (183) with Richard A. Bauman, Crime and Punishment in Ancient Rome (London: Routledge, 1996), 26–27; and see also Bennett, ‘‘Sacer Esto,’’ 12, 18. 13 See R. J. Sharpe, The Law of Habeas Corpus, 2d ed. (Oxford: Clarendon, 1989), 19. 14 Selden Society, Select Pleas of the Crown, Volume I, a.d. 1200–1225 (London: Bernard Quaritch, 1887), 67. 15 A significant current example: a petition for a writ of habeas corpus on behalf of

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some of the people detained at Guantánamo Bay was dismissed because the United States court considered it did not have jurisdiction since the people being held were not citizens of the United States nor were they on its legally recognized territory: see Khaled A. F. Al Odah et al. v. United States of America et al., United States Court of Appeals for the District of Columbia Circuit, No. 02-5251, March 11, 2003. I am grateful to Stewart Motha for this reference. The condition of those being held would come close to Agamben’s description of bare life but they are not placed beyond law’s reach, actual or potential, something which tends to be confirmed by the many broadly similar cases in train since Khaled was initiated. 16 Michel Foucault, The History of Sexuality, Vol. 1: An Introduction, trans. Robert Hurley (Harmondsworth: Penguin, 1981), 143. 17 Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972–1977, trans. C. Gordon et al. (Brighton: Harvester, 1980), 60; cf. Giorgio Agamben, Potentialities: Collected Essays in Philosophy, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1999), 220–21. 18 Foucault, History of Sexuality, 144. 19 Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (Harmondsworth: Penguin, 1979), 23. 20 Michel Foucault, ‘‘Governmentality,’’ trans. Colin Gordon, I & C 6 (1979): 7, 18–19. 21 Foucault, Power/Knowledge, 106. 22 Foucault, ‘‘Governmentality,’’ 13, 19. 23 Michel Foucault, ‘‘The Political Technology of Individuals,’’ in Technologies of the Self: A Seminar with Michel Foucault, ed. L. H. Martin et al. (London: Tavistock Publications, 1988), 147. See also Colin Gordon, ‘‘Governmental Rationality: An Introduction,’’ in The Foucault E√ect: Studies in Governmentality, ed. G. Burchell et al. (London: Harvester Wheatsheaf, 1991), 14–39. 24 Michel Foucault, ‘‘Society Must Be Defended’’: Lectures at The Collège de France, 1975–76, trans. David Macey (London: Allen Lane, 2003), 259–60. Cf. Jean-Luc Nancy, The Inoperative Community, trans. Peter Connor (Minneapolis: University of Minnesota Press, 1991), 12–14. 25 Foucault, Society Must, 247, 254. 26 This is Foucault writing on Canguilhem (‘‘Georges Canguilhem: Philosopher of Error,’’ I & C 7 [1980]: 60). Another way of looking at it with Foucault is that, accompanying his idea of power as pervasive, there is an ‘‘irreducible’’ resistance that is beyond yet integral to it (e.g., History of Sexuality, 96). Michael Hardt and Antonio Negri, in an explicit reversal of Agamben, would see bare life as profoundly vital (Empire [Cambridge, Mass.: Harvard University Press, 2000], 366).

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27 Cf. Arendt, one of Agamben’s main sources in Homo Sacer: ‘‘Since action is the political activity par excellence, natality, and not mortality, may be the central category of political . . . thought.’’ The Human Condition (Chicago: University of Chicago Press, 1958), 9. 28 Carl Schmitt, Political Theology: Four Chapters on the Concept of the Sovereignty, trans. G. Schwab (Cambridge, Mass.: mit Press, 1985), 5–7, 30. 29 Schmitt, Political Theology, 6–7, 12, 14, 16, 30. 30 Jacques Derrida, Politics of Friendship, trans. George Collins (London: Verso, 1997), chap. 5; and see Adam Thurschwell, ‘‘Friendship, Tradition, Democracy: Two Readings of Aristotle,’’ Law. Text. Culture 5 (2001): 307–9. 31 Jacques Derrida, Politics of Friendship, 162. 32 Jacques Derrida, ‘‘A Discussion with Jacques Derrida,’’ Theory and Event 5 (2001), 49; cf. Andrew Norris, ‘‘Carl Schmitt’s Political Metaphysics: On the Secularization of the ‘Outermost Sphere,’ ’’ Theory and Event 4 (2000); and see Andrew Norris, ‘‘The Exemplary Exception: Philosophical and Political Decisions in Giorgio Agamben’s Homo Sacer,’’ Radical Philosophy 119 (2003): 10. 33 Richard Beardsworth, Derrida and the Political (London: Routledge, 1996), 146. 34 Schmitt, Political Theology, 7. 35 Which is not to say he did not attempt to combine them in various extralegal ways, but Agamben does not refer to or rely on any of these except briefly to set aside one, Schmitt’s friend/enemy distinction (8). 36 Maurice Blanchot, The Infinite Conversation, trans. Susan Hanson (Minneapolis: University of Minnesota Press, 1993), 434. 37 Giorgio Agamben, ‘‘The State of Exception,’’ in this volume; Walter Benjamin, ‘‘Critique of Violence,’’ in One Way Street and Other Writings, trans. Edmund Jephcott and Kingsley Shorter (London: New Left Books, 1979), 154. 38 Gilles Deleuze and Félix Guattari, What Is Philosophy? trans. Hugh Tomlinson and Graham Burchill (London: Verso, 1994), 35–38, 41–42; Gilles Deleuze, ‘‘Immanence: A Life . . . ,’’ trans. Nick Millett, Theory, Culture and Society 14 (1997): 4. 39 Agamben, Potentialities, 232–33. 40 What Is Philosophy? 45. 41 Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive, trans. Daniel Heller-Roazen (New York: Zone Books, 1999), 47, 55, 56–57. 42 Jacques Derrida, ‘‘Force of Law: The ‘Mystical Foundation of Authority,’ ’’ trans. Mary Quaintance, in Acts of Religion (New York: Routledge, 2002), 254–55, 277–78. 43 Again, Nancy, Inoperative Community, 12–14. 44 E.g., F. A. von Hayek, The Road to Serfdom (London: Routledge, 1944), chap. 4 especially. 72

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45 Michel Foucault, ‘‘Maurice Blanchot: The Thought from Outside,’’ trans. Brian Massumi, in Michel Foucault and Maurice Blanchot, Foucault/Blanchot (New York: Zone Books 1987), 34. 46 This by now long journey through an alluring but discordant domain was sustained by the company of Adam Thurschwell, Stewart Motha, and Nasser Hussain.

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s / citing the c amp

Referring to what he calls the ‘‘academic Holocaust industry,’’ ‘‘its elevation of the Holocaust into metaphysical diabolical evil, irrational, apolitical, incomprehensible, approachable only through respectˇ zek writes: ful silence,’’ Slavoj Ziˇ The Holocaust is presented as the ultimate traumatic point where objectifying historical knowledge breaks down, where it has to acknowledge its worthlessness before a single witness; and simultaneously, the point at which the witnesses themselves have to concede that words fail them, that what they can share is ultimately only their silence as such. So the Holocaust is referred to as a mystery; its enigma negates all answers in advance, defying knowledge and description, noncommunicable, lying outside historicization—it cannot be explained, visualized, represented, transmitted, since it marks the void, the implosion of the narrative universe. Accordingly, any attempt to locate it in its context, to politicize it, is equivalent to the anti-Semitic negation of its uniqueness.∞ ˇ zek’s critique of this depoliticization of the Holocaust is perhaps a Ziˇ reminder of the spectacle several years ago in which a number of French and American Heidegger scholars took the stage to ruminate about Heidegger’s silence as the revelation of our failure ‘‘to think the enormity of su√ering and evil, of the power and anxiety in human responsibility,’’≤ as ‘‘restitution and a recognition of the failure of language to grasp an event,’’≥ thereby reinstating a certain aura, the shimmering suggestion of almost sacral authority of Heidegger’s silent inner voice to be resuscitated from the ‘‘leaden silence’’ by ears attuned to the profundity of meaning. In (not so) other words, they attempted to read what was never written in/by Heidegger on Auschwitz but successfully lured ‘‘the few’’ into textual e√ects by employing the promising lead of silence. An enigma translated and rewritten into necessity by the thinker’s discourse, which did not go empty handed to the site of Nothingness, but rather came with its hands full of plot, telos, finality. A narrative continuum fitting things into their proper categories so that everything (and everyone) had its place, especially those things that did not fit, and filling the 74

gap of Heidegger’s silence with his own proper voice, so as to rescue Heidegger’s silence from the all too common misapprehensions and turning it into the most sublime thinking of Auschwitz. This is then one exemplary instantiation of this essentializing discourse that, by claiming to possess the truth of National Socialism, has to seal itself o√ hermetically against certain reminders and remainders: ‘‘Perhaps Adorno, who was eager to speak about it, said less about fascism than did Heidegger in the very parsimony of his declarations (or in the stubborn determination with which, during the fascist years, he attempted to indicate where the truth and the lost or ruined inner greatness of the National Socialist Revolution lay).’’∂ The question as to the Darstellung ‘‘proper’’ to the events at Auschwitz continues to haunt contemporary philosophical, artistic, and historiographical discourses. With Auschwitz the project of representation has encountered a limit; that is, the possibility of representation has been put into question. Since it can no longer be taken for granted in an unproblematic sense, the determination of the mode of representation that still maintains a certain authority regarding the representation of Auschwitz becomes the central task. This has led to the claim that one has to take recourse to a mode of representation that does not call attention to itself but rather ‘‘disappears’’ into what is to be represented. Consequently, certain modes of representation—philosophical, literary, artistic—have to be excluded as viable candidates for a ‘‘true’’ representation of Auschwitz. This stance is exemplified by Berel Lang’s forceful rejection of any discourse on Auschwitz that, in its representation of the events, inscribes the question of representability. What most concerns him regarding those Darstellungen of Auschwitz and its victims is their supposed questioning of the objectivity of facts, independent of the process of representation. For Lang, if facts are dependent on their modes of representation, if they cannot be separated from their representational context, then everything becomes a matter of representation. Conceptualizing the question of representation in terms of narration and interpretation, Lang thus writes: ‘‘If the narrative-dependence of facts holds in general, then for any particular narrative (and its derivative ‘facts’) an alternate ‘pre-existing’ narrative might produce other, even contradictory, ‘facts.’ In other words, narrative and interpretation first, facts second. The implication here is—or should be—clear: not only is history accessible only in variant, sometimes conflicting narratives, but nothing that the narratives tell or talk about is exempt. We must distrust the tale as well as the teller— with no place else to turn.’’∑ For Lang, not literary but historiographical s/citing the camp

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representation is the significant mode of responding to Auschwitz. This is his ideal of historical writing: ‘‘where the facts speak for themselves, anything a writer might then add through artifice or literary figuration will appear as a conceit, an obtrusion.’’∏ Lang’s ideal reveals itself to be a kind of historical realism based on the objectivity of facts. Although this historical realism employs narrative and figurative means, it is not ‘‘dependent on these means.’’π Lang envisions a historical representation that ‘‘stands in direct relation to its object—in e√ect, if not in principle, immediate and unaltered.’’∫ Historiography’s voice in response to the Nazi genocide would then strive to become an anonymous writing—a writing that lets the facts, supposedly unmediated by representation, speak for themselves. While narrative and figurative representations of Auschwitz seem to be exposed to the danger of idolatry, the discourse of traditional historiography harbors a di√erent kind of danger. Recall Walter Benjamin’s verdict in his ‘‘Theses on the Philosophy of History’’ that ‘‘the adherents of historicism empathize . . . with the victor. . . . Hence, empathy with the victor invariably benefits the rulers.’’Ω Benjamin’s suspicion of the continuum of history stipulated by traditional historiography finds an echo in Levinas’s claim that historiography ‘‘recounts the way survivors appropriate the works of dead wills to themselves; it rests on the usurpation carried out by the conquerors, that is by the survivors; it recounts enslavement, forgetting the life that struggles against slavery.’’∞≠ That is to say, continuist historiography’s inheritance of the Nazi genocide bleaches the memory of past su√ering, silences its (already silent) victims again and turns this new victimization into a profane form of theodicy. Against this facile linear narration of progressive history (and the enrapturing cadences of poetic discourse), Levinas mobilizes testimony before the other as a genre of writing employing a ‘‘prose of rupture and commencement,’’ a saying that is marked by the ‘‘breaking of rhythm’’ and that ‘‘preserves the discontinuity of a relationship, resists fusion and where response does not evade the question.’’∞∞ Giorgio Agamben’s Homo Sacer: Sovereign Power and Bare Life and Remnants of Auschwitz: The Witness and the Archive are Wegmarken in a historicophilosophical project (itself named Homo Sacer) on the biopolitical paradigm culminating in Auschwitz and permeating contemporary politics. In Homo Sacer, a somewhat eclectic reading of Carl Schmitt, Hannah Arendt, and, above all, Michel Foucault, Agamben traces the limit-figures of sovereign power and bare life throughout the history of Western political thought. By 76

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means of this tracing, Agamben establishes a conceptual link between sacredness, sovereignty, and life that is to demonstrate how, with the rise of sovereignty, one witnesses the rise of a form of life that corresponds to it. Agamben opens his discussion by taking cognizance of Foucault’s claim that the threshold of modernity is reached when ‘‘the species and the individual as simple living body becomes what is at stake in a society’s political strategies.’’∞≤ This claim appears in a crucial passage in the first volume of The History of Sexuality: If one can apply the term bio-history to the pressures through which the movements of life and the procedures of history interfere with each other, one would have to speak of bio-power to designate what brought life and its mechanisms into the realm of explicit calculation and made knowledge-power an agent of transformation of human life. It is not that life has been totally integrated into techniques that govern and administer it; it constantly escapes them. . . . But what might be called a ‘‘threshold of modernity’’ has been reached when the life of the species is wagered on its own political strategies. For millennia, man remained what he was for Aristotle: an animal with the additional capacity for a political existence; modern man is an animal whose politics place his existence as a living being in question.∞≥ The biopolitical horizon of modernity is constituted by a conjoining of the politicization of ‘‘bare life’’ with the production and regulation of docile bodies. However, the emergence of biopolitics can be grasped fully only when the juridico-institutional view of power as negative and repressive is abandoned and the positive, concrete, and micropolitical ways power produces subjects and forms of ‘‘life’’ are brought into focus. Agamben’s elaboration of biopolitics extends Foucault’s analysis in two directions. First, he claims a structural analogy between the classical and the modern, insofar as an examination of the Aristotelian distinction between zo¯e, the bare life common to all beings, and bios, the mode of life proper to individuals or groups, can show that the inclusion of bare life within the political life always already constituted the hidden center of sovereign power. In fact the production of a specifically biopolitical body is ‘‘the original activity of sovereign power.’’∞∂ That is to say, sovereignty is constituted in its power over bare life, in its production of bare life. Agamben thus ‘‘corrects’’ Foucault’s supposed denial of the continuing significance of sovereign and legal power—as Foucault supposedly sets sovereign and legal s/citing the camp

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power in opposition to biopower, ultimately subordinating the former to the latter—by revivifying a persistent and illimitable sovereign power. By resituating biopolitical life at the center of its network of power relations, modernity is simply the expression and the rendering visible of the ‘‘secret tie’’ uniting power and bare life, thereby inscribing the modern and the archaic into a common horizon. This return to a classical model occurs via a certain appropriation of Carl Schmitt’s thought on sovereignty and exception: the emergence of biopolitics has to be read together with the reconstitution of politics through a structure of ‘‘exception’’ that simultaneously includes and excludes bare life from the political order. This structure of ‘‘exception’’ can already be found in Aristotle’s definition of polis in terms of an opposition between bare life and good life, whereby bare life is included within the latter only to be excluded from political life. Agamben concludes: ‘‘The fundamental categorical pair of Western politics is not that of friend/enemy but that of bare life/political existence, zo¯e/bios, exclusion/ inclusion. There is politics because man is the living being who, in his own language, separates and opposes himself to his own bare life and, at the same time, maintains himself in a relation to that bare life in an inclusive exclusion.’’∞∑ Bare life thus coincides with political life—it becomes impossible to draw a distinction between bare life and political life, or inclusion and exclusion, because this state of exception becomes legible as the hidden foundation underpinning the political system. This originary relation between politics and life, its paradoxical structure, is the secret a≈nity between bare life and the sovereign. That is, boundaries between politics and law are equally indistinguishable, since sovereignty and the sovereign exception are marked too by an inclusive exclusion. If, following Schmitt’s original formula, the sovereign—the embodiment of law—is ‘‘he who decides on the state of exception,’’ his inclusion in the polis can take the form only of an exclusion. To suspend the validity of the law is legally to place oneself outside of law. The function of the sovereign exception, occupying a position both inside and outside its field of operation—‘‘maintaining itself in relation to an exteriority’’∞∏ —continually delineates a threshold between inside and outside that makes the distinction between law and lawlessness possible. There are thus two figures in the life of the polis that partake of this paradoxical logic: the sovereign and homo sacer. Regarding the homo sacer, Agamben puts forth the following definition: ‘‘The sacred man is the one whom the people have judged on account of a crime. It is not permitted to 78

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sacrifice this man, yet he who kills him will not be condemned for homicide.’’∞π By means of one of his etymological exercises, Agamben excavates the constitutive ambivalence in the Latin ‘‘sacer.’’ He shows that homo sacer designates somebody who is both sacred and cursed, and as such subject to a double exclusion: ‘‘Life that cannot be sacrificed and yet may be killed is sacred life.’’∞∫ Homo sacer’s killing is unpunishable (homo sacer is outside of human law) while his sacrifice is impermissible (he is also excluded from the realm of divine law). The homo sacer originates bare life and its characteristics can equally be attributed and transferred to sovereignty. Hence bare life and power, homo sacer and sovereign, are revealed to be tied together as ‘‘the two poles of the sovereign exception,’’∞Ω two forms of inclusive exclusion. Although these two figures of inclusive exclusion were already implied in the classical political order, they are radicalized in the modern political order insofar as ‘‘the state of exception comes more and more to the fore as the fundamental political structure and begins to become the rule.’’≤≠ The state of exception, as the zone of indiscernibility between inside and outside, becomes the nomos of modernity, functioning within and in place of the normal political order. It is in this ‘‘absolute indistinction of fact and law’’ that the exception becomes the norm, and the paradigmatic site and materialization of this indistinction is the Nazi concentration camp: ‘‘The camp is . . . the structure in which the state of exception . . . is realized normally.’’≤∞ The Nazi concentration camp attests to the final absorption of politics into biopolitics. ‘‘Insofar as the inhabitants were stripped of every political status and wholly reduced to bare life, the camp was also the most absolute biopolitical space ever to have been realized, in which power confronts nothing but pure life, without any mediation.’’≤≤ Agamben draws an almost straight line of connection between the ancient figure of homo sacer and the inhabitants of concentration camps (including their most extreme figure, the Muselmann), as well as contemporary forms of zones of indistinction marked by the very same logic of inclusion through exclusion. The intelligibility of the Nazi concentration camp is that it fulfills, exemplifies, and is utterly continuous with that very logic that has been prepared from the beginning of the classical political order. Biopower has produced a state of bareness, meaning lawlessness that is systematic and lethal. The inhabitant of Nazi concentration camps is not the other to modern society, but its dark symbol. The biopolitical logic of modernity produces—potentially everywhere and at all times—human beings reduced to bare life, a logic that also permeates modern democracy in its attempt to s/citing the camp

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find a form of political life to accommodate bare life, insofar as this very goal determines the specific aporia of the democratic ideal: ‘‘It wants to put the freedom and happiness of men into play in the very place—‘bare life’—that marked their very subjection.’’≤≥ That is, Agamben sees ubiquitous actualizations of the instances of bare life in the current debates over abortion rights, the rights of neomorts, and the status of the rights for immigrants and refugees. His claim that biopolitics mark a structural and logical overlap of National Socialism and liberal democracy perhaps echoes and amplifies Adorno’s warning concerning the afterlife of National Socialism in democratic structures: ‘‘I consider the survival of National Socialism within democracy to be potentially more menacing than the survival of fascistic tendencies against democracy.’’≤∂ Given the pervasiveness of bare life, how can it be grasped as such? How can its bareness be delimited, especially since it is without any mediation? Since bare life’s being can be grasped in terms of a ‘‘threshold of articulation between nature and culture,’’≤∑ it is then not surprising to read that Agamben’s account of bare life a≈rms it as being ‘‘indeterminate and impenetrable.’’≤∏ Agamben’s Homo Sacer barely addresses the issue concerning the representability of this ‘‘threshold’’ of bare life and its most extreme figure: the Muselmann. Regarding the latter, only ‘‘Hölderlin’s statement that ‘at the extreme limit of pain, nothing remains but the conditions of time and space’ holds to the letter.’’≤π However, some scattered remarks seem to point to a certain a≈nity between the paradox of sovereign exception with its two forms of inclusive exclusion and the paradox of language. One remark describes the sovereign exception as ‘‘the figure in which singularity is represented as such, which is to say, insofar as it is unrepresentable.’’≤∫ Another one claims that inclusive exclusion, the form in which this unrepresentability is represented, is the very point at which the paradoxes of language and biopolitics converge: ‘‘The thought of our time finds itself confronted with the structure of exception in every area. Language’s sovereign claim thus consists in the attempt to make sense coincide with denotation, to stabilize a zone of indistinction between the two in which language can maintain itself in relation to its denotata by abandoning them and withdrawing from them into a pure langue (the linguistic ‘state of exception’). This is what deconstruction does, positing undecidables that are infinitely in excess of every possibility of signification.’’≤Ω This excess, language as ‘‘what must necessarily presuppose itself,’’≥≠ is addressed in Remnants of Auschwitz, where the

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question of witnessing, of survivor testimony, is pursued in light of the experience of some fundamental aporia of language. If it is clear that we lack the epistemic instruments to measure the devastation wrought by Auschwitz, then we have to undertake the redescriptions that transmit the memory and illuminate the experience of the death-world in ways that the established discourse fails to do. In other words, we have to engage in experimental thinking, especially in the face of a situation where the traditional semantic and syntactic rules for connecting life and death, for narrating their connection, has been destroyed. From the outset, Agamben posits an irreducibility of testimony that resists the assimilation and abstraction constitutive of, for instance, the historian’s discourse. The witness’s testimony cannot be reduced to the language of facts and documents; it is an event in its own right that ultimately cannot be sundered from the events it recounts. Shoshana Felman argues that it is for this reason that the witness bears a unique burden: ‘‘Since the testimony cannot be simply relayed, repeated or reported by another without thereby losing its function of testimony, the burden of witness—in spite of his or her alignment with other witnesses—is a radically unique, noninterchangeable and solitary burden.’’≥∞ The burden of the witness is to be both irreplaceable, in that no one else can speak for him or her, and incommensurate with any other witness, to the extent that the vantage point occupied by the witness and from which he or she speaks cannot be assimilated by any other. Testimony, in this sense, is irreducible and singular. Traditionally, the structure of bearing witness, of giving a testimony, has been predicated on a double presence, that is, on the witness’s presence at the event witnessed and on the witness’s presence at the moment of testifying. If these criteria of presence are not met, one is not strictly speaking dealing with testimony. Thus one can say that the traditional conception of testimony has as its basis the requirement of a double presence and the—at least implicit—claim to the authenticity of both the witness and the event witnessed. However, what happens to testimony if those conditions of presence are marked by a double impossibility, if one is dealing with an attempt at bearing witness in which neither a third party present to some event to be witnessed nor a witness who would have experienced the event to be witnessed from beginning to end could be invoked? That is what happened to testimony at Auschwitz, an event that, according to Felman, produced no witnesses, thus lacking the traditional features of testimony—conclusive,

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constative language rendering some self-transparency of knowledge. This is a lack of transparency (of language, of knowledge) that possibly could not even be grasped in psychoanalytic terms of witnessing as unconscious testimony, where one does not have or possess the truth, since that truth essentially is not available to its own speaker. To reformulate this deep lacuna of testimony in terms of the following host of questions: Who could bear witness for the witness? And how could testimony as language ever bear witness for the event without witnesses? What kind of language would be required so that the victims of the events without witnesses are not su√ering for insights articulated by testimony; that they do not serve as proof for a philosophy of history, a positive theodicy, derived from them? What kind of language would be required so that victims are not poeticized as witnesses, thereby taking into account the danger of instrumentalizing the victim as witness by ascribing to her or him a privileged truth? Taking Primo Levi’s text If This Is a Man (also translated as Survival in Auschwitz) as his Ariadne’s thread through the aporia of bearing witness to Auschwitz, Agamben’s ‘‘perpetual commentary on testimony’’≥≤ attempts to think through the relation between language and witnessing subject toward what perhaps could be called a ‘‘poetics’’ of testimony. Etymological exercises on the two Latin words for ‘‘witness’’ (terstis and superstes), on the Greek word for witness (martis, martyr), as well as on the name often given to the event without witnesses (holocaustos, holocaustum, Holocaust), are mobilized in order to clear up a certain conceptual confusion between ethical, juridical, and theological categories that has characterized the thinking of the Nazi genocide and its central concepts such as guilt, responsibility, judgment, etc. That is to say, since these concepts present the constant danger of concealing the event Auschwitz—the term martyr insinuates the justification of the ‘‘scandal of meaningless death’’—the term Holocaust not only implies ‘‘an unacceptable equation between crematoria and altars; it also continues a semantic heredity that is from its inception anti-Semitic.’’≥≥ Agamben deems it necessary to suspend those concepts in order to address what Levi calls the ‘‘gray zone’’ that announces ‘‘a new ethical element,’’≥∂ which must remain free of the mystifications that claims regarding the supposed ‘‘unsayability’’ of Auschwitz—for Agamben mere euphemisms—confer upon it. These necessary preliminary reflections are intended to open up the space for thinking the lacuna contained in testimony as an attempt at bearing witness by a survivor. Agamben quotes Levi: ‘‘There is another lacuna in 82

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every testimony: witnesses are by definition survivors and so all, to some degree, enjoyed a privilege. . . . No one has told the destiny of the common prisoner, since it was not materially possible for him to survive. . . . I have also described the common prisoner when I speak of ‘Muslims’; but the Muslims did not speak.’’≥∑ Already this opening passage puts into question the traditional meaning of testimony based upon the presence as well as the identity and authenticity of the witnesses. Levi again: ‘‘I must repeat: we, the survivors, are not the true witnesses. . . . We speak in their stead, by proxy.’’≥∏ For Levi, the ‘‘true,’’ ‘‘complete’’ witness is the one who did not and could not bear witness. Thus, the survivor finds himself in the paradoxical structure of bearing witness to a missing testimony that can be responded to only ‘‘by bearing witness in the name of the impossibility of bearing witness.’’≥π This first impossibility for the survivor to bear witness—after all, he is not the one who experienced the event from beginning to end; he thus cannot make any claim to presence and authenticity—is further complicated by a second impossibility for the pseudowitness to bear witness to what seems at best an inarticulate babble; Agamben refers here to Levi’s desperate attempt to listen and thereby bear witness to the ‘‘word’’ ‘‘mass-klo’’ or ‘‘mastikko’’ that was repeated again and again by the child Hurbinek, as well as to Levi’s description of Celan’s poetry as ‘‘background noise’’ of the camp.≥∫ Interlacing these two impossibilities of bearing witness—the impossibility for the survivor to serve as witness and the impossibility that seems to emerge from those two instances of nonarticulation, of nonlanguage somehow concealed by an already established language—Agamben then writes: ‘‘The language of testimony is a language that no longer signifies and that, in not signifying, advances into what is without language, to the point of taking on a di√erent insignificance—that of the complete witness, that of he who by definition cannot bear witness.’’≥Ω Agamben then proceeds to elaborate further on the first of the two impossibilities of bearing witness by addressing the Muslim—the Muselmann— as the one to whom no one has borne witness. He quotes several testimonies regarding the Muselmann that all seem to mark him as a zone of indistinction where all traditional distinctions between man and non-man, life and death, human and inhuman, have collapsed. ‘‘Walking corpses,’’ ‘‘living dead,’’ and ‘‘mummy-men,’’ the Muselmänner occupied the point at which human beings, ‘‘while apparently remaining human beings, cease to be human.’’∂≠ Indi√erent ‘‘living dead,’’ reduced to apathetic vegetative existence, the Muselmann is the ‘‘zero-level’’ of humanity that, since it seems to s/citing the camp

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lie outside symbolization, can no longer be articulated. However, the oppositional logic that, with its clear distinction between human and nonhuman, would have to attribute inhumanity to the Muselmann, simply repeated the logic of dehumanization employed by the ss. Commenting on ˇ zek writes: ‘‘This is why one should insist more than ever on this aspect, Ziˇ their humanity, without forgetting that they are in a way dehumanized, deprived of the essential features of humanity: the line that separates ‘normal’ human dignity and engagement from the Muslim’s ‘inhuman’ indifference is inherent to ‘humanity,’ which means that there is a kind of inhuman traumatic kernel or gap in the very midst of ‘humanity’ itself.’’∂∞ Moreover, this very oppositional logic that maintains that pure distinctions could still be drawn in the camp, thus leaving morality and humanity unquestioned, precisely conceals that the Muslim marks the point at which traditional ethics (with its claim to ‘‘dignity’’ and ‘‘decency’’ to be upheld even in the camp) founders. Against this exclusion of the Muselmann from humanity that leaves humanity intact only by committing again the crime of cynically handing over the Muslim to the realm of monstrosity, indecency, indignity, and nonlanguage, Agamben insists on taking into account the Muselmann as the true cipher of Auschwitz (and for an ethics ‘‘after Auschwitz’’): ‘‘The Muselmann is the non-human who obstinately appears as human; he is the human that cannot be told apart from the inhuman.’’∂≤ The Muselmann makes visible the ‘‘unrepresentable singularity’’ of bare life; a making visible that, however, complicates any easy representation inasmuch as the Muselmann (as well as those who would bear witness for him) makes visible nothing other than nonvisibility. Thus to bear witness to the Muselmann is to know and see ‘‘the impossibility of knowing and seeing.’’∂≥ And the structure of testimony has to articulate precisely this noncoincidence of the human and the inhuman: ‘‘That precisely this inhuman possibility of seeing is what calls and addresses the human, the apostrophe from which human beings cannot turn away—this and nothing else is testimony.’’∂∂ Agamben’s text then turns away from the figure of the Muselmann embodying the ultimate biopolitical substance of bare life, and toward the figure of the survivor and his ‘‘dominant sentiment—shame,’’∂∑ by exposing some of its problematic presuppositions. He attempts to dissociate shame from guilt by questioning that shame can be adequately understood in terms of a feeling of guilt for being alive in the place of another. According to Agamben, the common link between innocence and guilt in the traditional accounts of the survivor becomes suspicious on at least two grounds: first, 84 erik vogt

the assumption of guilt for having survived often seems to resemble an exercise in bad faith, insofar as a generic guilt is assumed that indicates, as Agamben remarks, the incapacity to master shame.∂∏ What is more, this confusion of shame and guilt lends itself to a model according to which the survivor’s shame is presented as tragic conflict and the survivor as tragic hero, just as much innocent as guilty. Pointing to the fact that this tragic model has often been invoked even by the executioners themselves, he maintains that ‘‘nothing is further from Auschwitz than this model. . . . With an inversion that borders on parody, the deportee feels innocent precisely for that which the tragic hero feels guilty, and guilty exactly where the tragic hero feels innocent.’’∂π Agamben’s point regarding the simultaneous nontenability and the continued existence of the tragic model of the ‘‘Holocaust’’ (plus its inversion) is ˇ zek’s interpretation of some recent cinematic representaconfirmed by Ziˇ ˇ zek demonstrates how both cotions of the Nazi concentration camp.∂∫ Ziˇ medic and tragic/pathetic stagings of the concentration camp universe necessarily fail to represent the post-tragic position of the Muslim because they still rely on the structure of sublimation, that is, ‘‘on the gap between the impossible Thing and an object, part of our reality, elevated to the dignity of the Thing, functioning as its stand-in.’’∂Ω In addition, both comedy and tragedy contain appeals to a kind of immortality—in the tragic model, the death of the hero for the sake of the Thing confers sublime dignity on him; in comedy, it is not the triumph of the sublime life, but rather the triumph of indestructible life—that has been crossed out by the concentration camp universe and its most extreme figure, the Muslim: On the one hand, the Muslim is so destitute that his stance can no longer be considered ‘‘tragic’’: in him there is none of the dignity that is crucial for the tragic position. . . . he is simply reduced to the shell of a person, emptied of the spark of spirit. If we try to present him as tragic, the e√ect will be precisely comic. . . . On the other hand, although the Muslim is in a way ‘‘comic,’’ although he acts in a way that is usually the stu√ of comedy and laughter (his automatic, mindless, repetitive gestures, his impassive pursuit of food), the utter misery of his condition thwarts any attempt to present and/or perceive him as a ‘‘comic character’’—again, if we present him as comic, the e√ect will be precisely tragic.∑≠ Consequently, neither the tragic nor the comical model hold in the face of the Muslim; rather the Muslim marks the point at which ‘‘the very opposis/citing the camp

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tion between tragedy and comedy, sublime and ridiculous, dignity and derision, is suspended.’’∑∞ Once it becomes clear that shame has to be freed from its confusion with survival and guilt, one has to look for a di√erent cause for it. For this reason Agamben maintains that shame has to be addressed not in terms of a shame for having survived, but rather for having to die, for the intimacy one experiences in the face of one’s murderer: ‘‘In the camps, this is the only sense that the expression ‘to die in a place of another’ can have: everyone dies and lives in place of another, without reason or meaning; the camp is the place in which no one can truly die or survive in his own place. Auschwitz also means this much: that man, dying, cannot find any other sense in his death than this flush, this shame.’’∑≤ What is now experienced in this intimacy (in the face of death) that it could be given the name ‘‘shame’’? Why does shame originate in our own intimacy? Agamben refers to Levinas’s definition of shame: ‘‘What is shameful is our intimacy, that is, our presence to ourselves. It reveals not our nothingness but the totality of existence. . . . What shame discovers is the Being that discovers itself.’’∑≥ This overcoming of the ‘‘I’’ by its own passivity, its sensibility, which is at the same time a summoning to its own presence, is then reformulated by Agamben in terms of a dialectic of expropriation and appropriation, of desubjectification and subjectification constitutive of the subject. He writes: ‘‘In shame, the subject thus has no other content than its own desubjectification; it becomes witness to its own disorder, its own oblivion as a subject. This double movement, which is both subjectification and desubjectification, is shame.’’∑∂ In other words, shame, ‘‘a kind of ontological sentiment that has its place in the encounter between man and Being,’’∑∑ reveals the bipolar structure of the subjectivity— desubjectification and subjectification, to be subjected and to be sovereign. This bipolar structure of subjectivity, this experience or feeling of shame, cannot be identified only in the originary structure of modern subjectivity that, as Heidegger has shown with regard to Kant, has to be deciphered as auto-a√ection, an experience of one’s own passivity or receptivity to the second degree, but it can also, once a linguistic turn is performed concerning the relation of auto-a√ection, be deciphered in acts of (poetic) speech, in glossolalia as ‘‘absolute desubjectification . . . of the event of language.’’∑∏ It can also be identified more generally in structuralist linguistics’ distinction between language and discourse, insofar as in the latter case the passage from language to discourse is made possible by the very renunciation and silencing of (psychosomatic) subjectivity for the sake of constituting itself as 86 erik vogt

the subject of enunciation. Once the subject occupies the position of enunciation, it realizes that its being silenced does not lead to the possibility of speaking, but rather to its impossibility: it is silent again, now in the realm of discourse. Agamben draws the following conclusion: ‘‘This can also be expressed by saying that the one who speaks is not the individual, but language; but this means nothing other than an impossibility of speaking has, in an unknown way, come to speech.’’∑π Agamben’s di≈cult reflections on (the event of ) language open up the possibility of a rehearsal of the relation between Muselmann and survivor, between the inhuman and the human, within the context of what his phenomenology of testimony has established so far—with the addition that those relations are now reread in light of bearing witness as a linguistic event. That is, the infrastructure of testimony with its poles of Muselmann and survivor, the inhuman and the human, receives a further inscription: the relation between living being and speaking being. Thus the survivor (the one with speech) can be said to bear witness to the Muselmann (the one without speech)—however, since the survivor serves as proxy, one could say that it is the Muselmann who bears witness: ‘‘Testimony takes place where the speechless one makes the speaking one speak and where the one who speaks bears the impossibility of speaking in his own speech, such that the silent and the speaking, the inhuman and the human enter into a zone of indistinction.’’∑∫ This zone of indistinction a√ects not only the traditional (humanist and antihumanist) misrecognition of the human/inhuman, based on the assumption that human and inhuman can still be isolated from each other and receive their identity independent from and in opposition to each other, but also necessitates a rethinking of the relation between the individual living being, its ‘‘I,’’ and language. Reinterpreting his earlier remarks concerning the insertion of the living individual (the ‘‘I’’) into language as expropriation of the discursivized and silenced ‘‘I’’ demonstrating, through the experience of in-fancy as absence of language as such, as silence as the background for speech to emerge, not only the foundational priority of the event of speech (‘‘language speaks’’) but also the impossibility for the living being to reappropriate itself linguistically, Agamben can then state: ‘‘The mode of Being of this ‘I,’ the existential status of the speaking-living-being is thus a kind of ontological glossolalia . . . in which the living being and the speaking being, subjectification and desubjectification, can never coincide.’’∑Ω This glossolalia is ontological insofar as it characterizes the general relation between life and language, living being and speaking being, subjectification and s/citing the camp

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desubjectification. This relation is marked by nonidentity, and it is its noncoincidence that, according to Agamben, makes possible the event of speech as such and therefore testimony. ‘‘But precisely this impossibility of conjoining the living being and language, . . . the inhuman and the human . . . is what allows for testimony. The intimacy that betrays our non-coincidence with ourselves is the place of testimony. Testimony takes place in the non-place of articulation.’’∏≠ The silent and the speaking, the inhuman and the human, are located in a zone of indistinction in which they relate to each other in terms of a noncoincidence. And it is precisely the implications of this noncoincidence, as the condition for the possibility of both witness and testimony, which are to be further elaborated in the direction of the question of survival, on the one hand, and of the relation between the sayable and the unsayable on the other hand. As to the question of survival, Agamben regards the noncoincidence between the human and the inhuman in terms of a caesura ‘‘that can transform life into survival and all survival into life.’’∏∞ While this caesura casts some more light on the relation between the Muselmann and the survivor— the Muselmann as the inhuman capacity to survive the human; the survivor as the one who survives the inhuman—it fully illuminates Levi’s paradoxical statement according to which ‘‘they, the Muselmänner, the drowned, are the complete witness,’’ and that, after all, has been the focus of Agamben’s reflections on testimony and the witness. This is how Agamben now reads Levi’s paradox: ‘‘the human being is the inhuman; the one whose humanity is completely destroyed is the one who is truly human.’’∏≤ It is precisely because of this noncoincidence between the human and the inhuman, their nonidentity, that the complete destruction of humanity bears witness to the impossibility to fully destroy the human, to a remainder: the witness. And this indestructibility of the human being has nothing whatsoever to do with some supposed human substance or essence, but rather brings to the fore a certain potentiality. A structurally similar argument brings to light a certain potentiality in language. The noncoincidence between language and its taking place, between the pure possibility of speaking and its existence as such, allows Agamben to discern a caesura within language as potentiality of speech that ‘‘divides it into a possibility and an impossibility, into a potentiality and an impotentiality.’’∏≥ Impotentiality is not to be understood, however, as the opposite of potentiality, but as something that is retained within it as its very 88 erik vogt

enabling condition, that is, as ‘‘contingency, as capacity not to be.’’∏∂ Here one can see how the relation between testimony and witness and the relation between language and human being in general are related to each other: both the witness’s possibility of bearing witness, of giving testimony, and the human subject’s possibility of speaking are grounded in contingency as the ‘‘event of a potentiality as the giving of a caesura between a capacity to be and a capacity not to be. In language, this giving has the form of subjectivity. Contingency is possibility put to the test of a subject.’’∏∑ The dialectic of subjectification and desubjectification constituting subjectivity can then be reformulated in terms of the ‘‘ontological operators’’ of possibility, impossibility, contingency, and necessity. While possibility and contingency are the operators of subjectification—they allow for the constitution of ‘‘my’’ world—impossibility and necessity function as the operators of desubjectification bringing about the destitution and destruction of the subject, thus marking o√ a world that is not ‘‘mine.’’∏∏ Read in light of those ontological operators, the historical fate of the subject at Auschwitz can thus be described in terms of a rupture within the dialectic of subjectification and desubjectification, insofar as Auschwitz is to be deciphered as ‘‘the existence of the impossible, the most radical negation of contingency; it is, therefore, absolute necessity.’’∏π This absolute necessity is nothing other than the fully realized, physically silenced and silent absolute biopolitical substance—mere survival cut o√ completely from life—whose cipher is the Muselmann. Hence the urgency of testimony, if the Muselmänner are no longer to be kept in the isolation the Nazis imposed upon them.∏∫ How then can there be a testimony of Auschwitz? That is, what preserves a link between Auschwitz and language so that one can bear witness to the event Auschwitz? It is at this point that Agamben introduces the third and decisive meaning of ‘‘witness,’’ by means of an etymological interpretation of the term auctor, ‘‘author.’’ Agamben shows that the Latin auctor, which he takes to be, above all, ‘‘the completion of an imperfect act,’’ contains within itself the meanings of advisor, seller, and witness. Auctor signifies the authorization of something that, without it, would remain incomplete and invalid. At the same time, this specific meaning of ‘‘author’’ has nothing whatsoever to do with a creatio ex nihilo; ‘‘authorship’’ in this sense is rather always ‘‘coauthorship’’ since it presupposes something preexisting that can then be authorized. In short, the author as co-author takes on the function of the witness completing and rendering valid some lack or insu≈ciency, while at the same time this function of witness remains dependent on that which s/citing the camp

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precedes it, that which provides it with its meaning. This mutual dependence, this being coextensive of survivor (the one who can witness) and Muselmann (the one who cannot bear witness), can then be summarized in the following manner: ‘‘The survivor and the Muselmann, like the tutor and the incapable person and the creator and his material, are inseparable; their unity-di√erence alone constitutes testimony.’’∏Ω It is this division and inseparability of survivor and Muselmann that testimony bears witness to, insofar as it attests to the incapacity of the Muselmann to speak other than through the survivor who, in his speaking, attests precisely to the impossibility of speaking. What is more, the testimony as bearing witness to the impossibility of witnessing not only maintains the link (between inhuman and human, living being and speaking being) that the isolationism of biopolitics attempts to disrupt once for all, but, in giving voice to what is refused language, to what is an impossibility of speaking, it renders the proof of Auschwitz: ‘‘Let us, indeed, posit Auschwitz, that to which it is not possible to bear witness; and let us also posit the Muselmann as the absolute impossibility of bearing witness. If the witness bears witness for the Muselmann, if he succeeds in bringing to speech an impossibility of speech . . . then the denial of Auschwitz is refuted in its very foundation. . . . If the survivor . . . speaks only on the basis of an impossibility of speaking, then his testimony cannot be denied. Auschwitz—that to which it is not possible to bear witness—is absolutely and irrefutably proven.’’π≠ Agamben’s meditations on the status of testimony ‘‘at’’ and ‘‘after’’ Auschwitz testify to an incessant vigilance regarding any construction of Auschwitz in terms of a speculative philosophy of history, with its surreptitious claim that life ‘‘at’’ and ‘‘after’’ Auschwitz could still be narrated in a meaningful manner. Against any variation on a philosophical theodicy, Auschwitz appears rather as negative theodicy: that is, Auschwitz resists a≈rmative thinking tout court, both in its transcendent and in its historical version. That is, it is neither metaphysically nor epistemically nor theologically privileged— recall Agamben’s warning that Auschwitz must not be made to disappear under the topic of ‘‘unsayability’’; this very move fails to recognize Auschwitz in its exemplarity—nor is it simply to be subsumed under and included into some progressivist and continuist conception of the historical evolution of humanity, for the latter entails at least implicitly that Auschwitz has somehow already been overcome. Against this a≈rmative gesture that extends often even to the empty assertion that nothing like Auschwitz is to occur again, Agamben, in his discussion of Nietzsche’s eternal return, points to 90

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the ‘‘unprecedented ontological consistency’’ of Auschwitz: ‘‘One cannot want Auschwitz to return for eternity, since in truth it has never ceased to take place; it is always already repeating itself.π∞ This, however, does not mean that Agamben does not retain some kind of historical narrative; after all, his historicogenealogical account of the emergence of biopower describes a general historical trend constitutive of European culture. But this general historical narrative is constantly disrupted by the insistence on discontinuous elements. These discontinuities become visible already on the textual plane, insofar as Agamben’s text itself brings together and links heterogeneous writings and genres—philosophy; linguistics; history; literature; documents by survivors, Muselmänner, perpetrators; autobiography—in order to construct the history of Auschwitz (the history of the biopolitical production of bare life) and to deny it by means of the conception of testimony. In short, the site of Auschwitz is both the apotheosis of biopolitics and the turning point toward a di√erent understanding of the relation between humanity and language (testimony). The conundrum thus posed by Auschwitz is the demand to hold together its biopolitical occurrence, its empirical narratives, and the (ethical) meaning of testimony without overlapping them in such a way that the latter becomes again a cornerstone upon which a ‘‘new’’ speculative philosophy of history would be erected. Agamben’s text attempts to respond to this demand by bringing those di√erent textual elements and concepts into conjunction with each other around the name ‘‘Auschwitz’’—precisely in its fragmentary representation, resisting the totalizing impulse of historical discourse—to address the singularity of that name. Hence what Agamben calls his ‘‘perpetual commentary’’ might be likened to Saul Friedlander’s description of commentary as ‘‘disrupting the facile linear progression of the narration, introducing alternative interpretations, questioning any partial conclusions, withstanding the need for closure.’’π≤ But the question remains as to how those heterogeneous texts and their concepts are brought into conjunction with each other—in other words, how are they linked to each other and what provides their linkage? What provides them with the kind of consistency that allows for the passages between them?π≥ One immediate, although somewhat polemical, response would be that Agamben’s text receives part of its consistency from the repeated employment of etymological excavations. He continually relies upon a procedure that returns the central concepts of his investigation (bare life, witness, s/citing the camp

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survival) to the site of their formation out of the materiality of ancient words (homo sacer, terstis, superstes, auctor, supervivo, etc.) that, as fundamental, basic, or originary words, function as if truth came to light in and through them. Agamben’s attention to language is here ‘‘an attention to words considered on their own, concentrated in themselves, to such words held to be fundamental . . . up to the point where, in the history of their formation,’’π∂ biopolitics (secreted in semantic history) can be heard. This, however, seems to lend them a more ontological than historical and social character, which could explain, at least partly, why their connection with their (historical and political) content(s) appears at times to be identificatory and hence arbitrary. This kind of identificatory tendency is reinforced by their linkage with an ‘‘always already’’ that assigns to them as their unchangeable property that which exceeds them.π∑ The question of the conjunction between the historical and the ‘‘philosophical’’ becomes especially pertinent in the second chapter, ‘‘Shame, or On the Subject.’’ The passage between them appears to be something of a leap: what has presented itself so far as a historical account of the biopolitical production of bare life, finding its apotheosis in the figure of the Muselmann, turns into an ontological investigation of the structure of subjectivity. Muselmann and survivor form a couple that becomes the basis for an account of the infrastructure of subjectivity, its dialectic of the inhuman and the human, of desubjectification and subjectification. This leap can be located, above all, in Agamben’s interrogation of shame. As we have seen, Agamben suddenly removes shame from its precise historical and biopolitical context and transposes it onto the level of an existential of subjectivity. That is, the experience of shame—and its two modalities, horror and disgust—is elevated from a feeling attendant to a historically determined limiting condition (the inhuman as Muselmann) into a general ontological feeling that might no longer be historically and indexically bound. Taking up a hint given by Jay Bernstein as to the status of the inhuman in Agamben,π∏ one could mark the tension inherent in Agamben’s concept of the inhuman as the tension between the transcendental and the historical. Consider the following statement: ‘‘The human also endures the non-human. . . . This means that humans bear within themselves the mark of the inhuman, that their spirit contains at the very center the wound of non-spirit, non-human chaos atrociously consigned to its own being capable of everything.’’ππ Everything now turns around the question as to how this relationship between the human and the inhuman—the inhuman in the human—is con92

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ceptualized. It is here that the suspicion arises that the inhuman is no longer seen as the historical experience of the destruction or dehumanization of the human, as the stripping away of the human, but rather as a kind of transcendental marker: the inhuman becomes something like the necessary condition for the possibility of the human that is simultaneously its impossibility. This suspicion hardens once it is recalled that it is precisely at this point that Agamben brings into play Heidegger’s interpretation of Kantian subjectivity in terms of auto-a√ectionπ∫ —an interpretation that, although (or because) it regresses to ontological conditions that are prior to Kant’s own epistemological conditions of the possibility of experience, retains a transcendental character: auto-a√ection as ecstatic temporality is itself presented as the transcendental condition of subjectivity. The inhuman is hence something like an irreducible gift, constituting in advance the possibility/impossibility of the human. No longer a social and historical product, it becomes an irreducible violence, an imposition that is ‘‘always already’’ the precondition for any humanity whatsoever: that is, it becomes a de facto invariant.πΩ Once shame becomes an ‘‘ontological sentiment,’’ the character of su√ering too is changed. If the experience of the inhuman, the horror and disgust at the unbearable physical agony in the historical experience of bodily su√ering, is ontologized in this manner, then su√ering becomes abstract. It becomes extracted from its particular historical site and social context of violence. By transforming the negative element of human experience— su√ering—into a constitutive element of humanity, the experience of su√ering is not only silenced, but, through its a≈rmation, it also loses its antithetic character, its capacity to become a turning point at and a resistance to Auschwitz: ontology as anaesthetics.∫≠ This quasi-transcendental gesture is repeated with regard to the relation between the decisive terms in Agamben’s conception of testimony, of bearing witness: ‘‘only if language bears witness to something to which it is impossible to bear witness, can a speaking being experience something like a necessity to speak.’’∫∞ The relation between infancy and speech, the impossibility of speaking and the possibility of speaking, becomes legible for him only in terms of a ‘‘transcendental history’’ that itself cannot be ‘‘historicized, because it is itself historicizing, and itself founds the possibility of there being any ‘history.’ ’’∫≤ This means that infancy is ‘‘the very transcendental origin of language. . . . The ine√able is, in reality, infancy. Experience is the mysterion which every individual intuits from the fact of having infancy.’’∫≥ And ins/citing the camp

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fancy as the transcendental origin of language is at the same time the transcendental origin of history. Infancy marks the condition of the possibility of language and history. But what is the condition of the possibility for this transcendental inquiry? What is the experience that makes possible the transcendental inquiry that is to provide the conditions of the possibility of experience (infancy)? Can this experience really be an invariant ‘‘ine√able’’? Is the child Hurbinek an ‘‘ine√able’’ in this sense? And if the historicity of this ‘‘transcendental history’’ cannot be historicized, insofar as it is prior to and qualitatively distinct from any merely ontic history, does this imply that Auschwitz, once relegated to ontic history, has left the ine√able, a certain transcendence, actually intact? Testimony’s imperative is to maintain the relation between life and survival, infancy and language, Muselmann and survivor—the relation that is division and inseparability, unity-di√erence. Its imperative is to bear witness by bearing witness to the impossibility of bearing witness. What or who then brings to speech an impossibility of speech? Agamben’s answer: the author. But what or who is the author? The immediate answer seems to be: language itself. But how is that possible? At this point Agamben’s reflections on language as remainder become pertinent. Recalling Hannah Arendt’s claim that what ‘‘remains is the mother tongue,’’ he sets out to examine the case of a dead language in order to respond to the following two questions: ‘‘How can a language survive the subjects and even the people that speak it? And what does it mean to speak in a remaining language?’’∫∂ To put it briefly, what characterizes a dead language (such as Latin) is that it no longer marks out the space for a subject-position but a space that can, however, be reappropriated and recuperated by an author, as the case of the poet Giovanni Pascoli demonstrates. For Pascoli succeeded in speaking a dead language; he was capable of resurrecting a dead language, of resuscitating dead words.∫∑ And that this capacity to give life to death is not limited to Pascoli alone, this ‘‘curious author, who authorizes an absolute impossibility of speaking and summons it to speech,’’∫∏ but is rather a gift of poetry as such is testified to by Agamben’s immediate references to Hölderlin and Celan. Reinterpreting Hölderlin’s famous ‘‘what remains is what the poets found,’’ Agamben writes, ‘‘Poets—witnesses—found language as what remains, as what actually survives the possibility, or impossibility, of speaking.’’∫π The poet is the author par excellence, the exemplary witness.∫∫ It is in and through poetry that one can bear witness to the Muselmann, for, as Agamben 94

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suggests in another text, poetry renders exactly this transcendental experience of infancy, the desubjectification and subjectification in the medium of language. ‘‘The experience of the poet . . . a≈rms that . . . poetry and life . . . become absolutely indistinct at the point of their reciprocal desubjectivization. And—at that point—they are united not immediately but in a medium. This medium is language. The poet is he who, in the word, produces life. Life, which the poet produces in the poem, withdraws from both the living experience of the psychosomatic individual and the biological unsayability of the species.’’∫Ω And this capacity of poetry is linked to its status of being a ‘‘poetic atheology.’’ This is how Agamben defines poetic atheology: ‘‘What characterizes poetic atheology . . . is its singular coincidence of nihilism and poetic practice, thanks to which poetry becomes the laboratory in which all known figures are undone and new, parahuman or semidivine creatures emerge: Hölderlin’s half-god, Kleist’s marionette, Nietzsche’s Dionysus, the angel and the doll in Rilke, Kafka’s Odradek as well as Celan’s ‘Medusahead’ and ‘automaton’ and Montale’s ‘pearly snail’s trace.’ ’’Ω≠ Is the Muselmann too part of this poetic catalogue? Is the figure undone by Auschwitz nothing but another site at which poetry reveals its inhuman force, marking the revelation of meaning before meaning is recuperated within the semantics of history? What kind of life can be ascribed to a language that survives through poetry, to a language resurrected from death by poetry? In an interesting reading of Lacan’s equation of the comic dimension with the phallic sigˇ zek, in his interrogation of Holocaust comedies, remarks that one nifier, Ziˇ misses the ambivalence of Lacan’s equation if one only considers the phallic aspect of the signifier, that is, the signifier as symbol for life, survival, regeneration, etc. What has to be emphasized is that this ‘‘life’’ is ‘‘not simple biological life, but fantasmatic spectral/ethereal life unencumbered by the inertia of the Real.’’Ω∞ Ultimately, what holds together this fantasmatic uniˇ zek characterizes as the ‘‘universe of perververse of eternal survival that Ziˇ sion’’ is a disavowal of the Real of death (and sexuality). Thus, ‘‘whatever the catastrophe, no matter how dark the predicament, we can be sure in advance that the little fellow will find a way out.’’Ω≤ What is more, it is precisely one of the ‘‘sources’’ for Agamben’s conception of poetic transcendence that casts at least some doubt on the claim that the poetic syntax has always already been preserved. In his ‘‘Bremen Speech’’ from 1958, Celan states: ‘‘Only one thing remained reachable, close and secure amid the losses: language. Yes, language. In spite of everything, it s/citing the camp

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remained secure against loss. But it had to go through its own lack of answers, through terrifying silence, through the thousand darknesses of murderous speech. It went through. It gave me no words for what was happening, but went through it. Went through it and could resurface, ‘enriched’ by it all.’’Ω≥ Celan’s poetry has to orient itself in murderous language, not simply dead language: it is presented not with the task of simply resurrecting dead signifiers, but rather with the infinitely more di≈cult task of keeping remembrance of ‘‘the thousand darknesses of murderous speech’’— and it can do so only if it remains bound to historical dates: ‘‘For the poem does not stand outside time. True, it claims the infinite and tries to reach across time—but across, not above.’’Ω∂ Furthermore, it is not at all clear that Celan’s ‘‘enriched’’ language refers to the continuity of language in an affirmative manner: ‘‘Indeed, rather than being positive, the continuity of language could be the opposite. For Celan, what might have been most harrowing is the fact that language did not let go, that language remained demanding to be used. Having to write, therefore, the inability not to write, might well have been the cruelest consequence not just of what language endured, but of what language forces onto the written subject.’’Ω∑ Poetry reaches across time toward its ‘‘outside,’’ and it does so in a double movement that separates it from and connects it with history. This means, however, that poetry is not safe from the disintegrating forces of Auschwitz. Auschwitz insinuates a caesura in poetry itself that exposes poetry to a risk that is historically conditioned, not a transcendental marker for some other history. A risk that poetry—and art in general—is no longer possible always or everywhere because, as Adorno writes, ‘‘after Auschwitz there is no word tinged from on high . . . that has any right unless it underwent transformation.’’Ω∏ That is, Auschwitz can neither be bypassed nor recuperated by or for poetry/art, especially since it is complicit with it and therefore not exempt from the ‘‘guilt context of the living.’’ Poetry’s aporia is captured succinctly in the following two passages from Adorno: ‘‘That this could happen in the midst of the traditions of philosophy, of art, and of the enlightened sciences says more than that those traditions and their spirit lacked the power—lacked the power to take hold of men and work a change on them. There is untruth in those fields themselves, in the autarky that is emphatically claimed for them. All post-Auschwitz culture, including its urgent critique, is garbage.’’Ωπ And: ‘‘The so-called artistic representation of naked bodily pain of those beaten to the ground with rifle butts contains . . . the potential to squeeze out pleasure. It is through the aesthetic principle of styliza96

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tion . . . that the unimaginable fate appears as if it had had some sense; it gets transfigured and something is removed from the horror; through this alone the victims are wronged.’’Ω∫ This is not to deny that material element in poetry that, in Adorno’s account, points toward a future that retains a moment of incompatibility with intransigent historical reality—but it does so only from a position within history that Adorno identifies as the historical position of autonomy of modernist poetry. And it is precisely this autonomy that marks the status of modernist poetry as semblance. That is, modernist poetry occupies an imagined space—hence its structural discontinuity with progressive history, its ‘‘semblance of nonsemblance,’’ takes on the form of a promise.ΩΩ While poetry in Adorno is firmly situated within this aporia that it—as Schein—can only bring to appearance but not leave behind, Agamben’s thinking of poetry seems to operate on the claim that this aporia can be exited by restoring to poetry its ‘‘original stature.’’ Consider the following passage concerning the ‘‘essence of art’’: In the same way, when we are before a work of art or a landscape bathed in the light of its own presence, we perceive a stop in time, as though we were suddenly thrown into a more original time. There is a stop, an interruption in the incessant flow of instants that, coming from the future, sinks into the past, and this interruption, this stop, is precisely what gives and reveals the particular status, the mode of presence proper to the work of art or the landscape we have before our eyes. We are as though held, arrested before something, but this being arrested is also a beingoutside, an ek-stasis in a more original dimension.∞≠≠ This sublime encounter with and experience of art exhibits art’s epochmaking capacity, its ‘‘originating’’ power capable of reinstating man in his original temporal dimension, in his historicity. In short, art allows for the relinking of man with his past and future. However, art’s recovery of the past, its transmission of the past, cannot be accomplished by means of a simple immediate return to and invocation of art’s ‘‘original stature,’’ since the conditions of transmissibility can no longer be taken for granted. In order to account for the discontinuity in transmission, Agamben gives a brief sketch of the historical fate of the transmission of the past. While traditional cultural systems could rely on an identity between the content of their tradition and their modes of transmission, modern culture is marked by a gap between its mode of transmission s/citing the camp

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and its object of transmission, through which the object of transmission, separated from transmission itself, is accumulated in such a way that it can no longer provide the reference points for a present to found the relationship between past and future. It is at this point of interruption that the relationship between art and history has to be recast in terms of the relationship between aesthetics and art. This relationship is articulated by Agamben by means of an interlacing of Benjamin’s ‘‘angel of history’’ and Dürer’s ‘‘angel of art’’: ‘‘The storm of progress that has gotten in that angel’s wings has subsided here, and the angel of art appears immersed in an atemporal dimension, as though something, interrupting the continuum of history, had frozen the surrounding reality in a kind of messianic arrest. . . . The past that the angel of history is no longer able to comprehend reconstitutes its form in front of the angel of art.’’∞≠∞ Aesthetics is thus able to reconstitute the past—but it does so from the perspective of the day of ‘‘aesthetic Last Judgment.’’ Its redemptive force transmits the past, but it does so only in the form of an alienated, allegorical image of the past: that is, in the form of the intransmissibility of the past. Caught between the linear and empty time of history and the atemporal, frozen moment of aesthetics, man cannot appropriate his historicity. After all, ‘‘aesthetics is . . . unable to think of art according to its proper stature, and so long as man is prisoner of an aesthetic perspective, the essence of art remains closed to him.’’∞≠≤ Nonetheless art remains the locus for (Agamben’s) thinking (of ) historicity because it somehow continues to operate historically, despite its removal to the periphery called aesthetics. But why is it that art should continue to have the power to provoke a thinking that transcends aesthetics and recalls a past (future) mode of original historical existence? It is because art is situated at the limit of the aesthetic itinerary. Aesthetics has not only approached a kind of completion; this completion marks at the same time a turning point: ‘‘And if it is true that the fundamental architectural problem becomes visible only in the house ravaged by fire, then perhaps we are today in a privileged position to understand the authentic significance of the Western aesthetic project.’’∞≠≥ This privileged position from which art reveals a surpassing of aesthetics is e√ected by the rhetorical figure of an extreme position revealing its opposite: the moment of (aesthetics) danger is where the saving power (of art) grows. But that is not all. It is at this turning point that art gives back to man ‘‘the very space in which he can take the original measure of his dwelling in the 98

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present and recover each time the meaning of his action.’’∞≠∂ Agamben locates this Umkehr in Kafka’s reversal of Benjamin’s image of the ‘‘angel of history’’: ‘‘The angel has already arrived in Paradise.’’∞≠∑ Hence what is announced in Kafka’s writing is a replacement of the idea of history as empty continuum with the image of a history in which the state of emergency—the perpetual day of the Last Judgment—has becomes history’s rule. And must one not discern a parallel movement in Agamben’s biopolitical reading of Auschwitz? Auschwitz signifies the essential completion of biopolitics, a totality in which the pall of bare life is about to encompass all in a ‘‘catastrophe.’’∞≠∏ It marks the point at which politics has been totally transformed into biopolitics, so much so that a di√erentiation ‘‘between our biological body and our political body’’ seems no longer possible.∞≠π Yet this very moment of catastrophe contains in itself the revelation of a mutation of the existing situation, which is somehow also its redemption: ‘‘In the state of exception become the rule, the life of homo sacer, which was the correlate of sovereign power, turns into an existence over which power no longer seems to have any hold.’’∞≠∫ Agamben’s examination of aesthetics and biopolitics presents then two streams of argument that coincide in this moment of catastrophic turning. While his essential reading of aesthetics in terms of its epochal situation reveals a turning through which art makes possible an exit from the ‘‘swamp of aesthetics’’ and opens up again the taking place of ‘‘the fundamental event of the human condition,’’∞≠Ω his essential reading of biopolitics in terms of its epochal situation posits Auschwitz as the turning ‘‘where bare life must itself instead be transformed into the site for the constitution and installation of a form of life that is wholly exhausted in bare life and a bios that is only its own zo¯e.’’∞∞≠ This coincidence is also what binds together the task of testimony—to recover ‘‘the taking place of a language as the event of subjectivity’’∞∞∞ —and poetry’s task: to restore ‘‘to the poetic status of man on earth its original dimension.’’∞∞≤ In the moment of catastrophe, what disrupts progressive history in its aesthetic and biopolitical completion and sets in motion another kind of history is poetic testimony, which for Agamben always already figures as the site of ‘‘man’s original historicity.’’ If poetic testimony authorizes history in such an essential sense, then it can continue to restore and recover itself, as if it had not been sundered by Auschwitz. Since Auschwitz has been kept at bay somehow by poetry, poetry can continue with its tradition without having to acknowledge that its forms have been sustained by and have sustained the s/citing the camp

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very tradition whose repetition Auschwitz has put into question to the point of refusing that tradition. Instead of being the presence whose determining e√ect has inscribed indelibly the mark and memorial of the historical impossibility ‘‘to write poetry today,’’∞∞≥ Auschwitz is somehow (re-)turned into a testimonial for poetic testimony’s uninterrupted transcendental orientation: that is, for its continuance as the transcendental and original source for (historical) meaning. notes ˇ zek, Did Somebody Say Totalitarianism? (London: Verso, 2001), 66–67. 1 Slavoj Ziˇ 2 Georg Kovacs, ‘‘On Heidegger’s Silence,’’ Heidegger Studies 5 (1989): 143. 3 William Vaughan, ‘‘Heidegger’s Silence,’’ quoted in George Leaman, ‘‘Strategies of Deception: The Composition of Heidegger’s Silence,’’ in Martin Heidegger and the Holocaust, ed. Alan Milchman and Alan Rosenberg (Atlantic Highlands, N.J.: Humanities Press, 1996), 57. 4 Philippe Lacoue-Labarthe, Heidegger, Art, Politics, trans. Chris Turner (Oxford: Blackwell, 1990), 107. 5 Berel Lang, ‘‘Is It Possible to Misrepresent the Holocaust?’’ History and Theory 34, no. 1 (1995): 88. 6 Berel Lang, Act and Idea in the Nazi Genocide (Chicago: University of Chicago Press, 1990), 116. 7 Lang, Act and Idea, 156. 8 Lang, Act and Idea, 156. 9 Walter Benjamin, Illuminations, ed. Hannah Arendt, trans. Harry Zohn (New York: Schocken Books, 1968), 256. 10 Emmanuel Levinas, Totality and Infinity, trans. Alphonso Lingis (Pittsburgh: Duquesne University Press, 1969), 288. 11 Levinas, Totality and Infinity, 203. 12 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Stanford: Stanford University Press, 1998), 3. 13 Michel Foucault, The History of Sexuality, Volume 1: An Introduction, trans. Robert Hurley (London: Penguin, 1990), 143. 14 Agamben, Homo Sacer, 6. 15 Agamben, Homo Sacer, 8. 16 Agamben, Homo Sacer, 18. 17 Agamben, Homo Sacer, 71. Here one might find a first instance of the problematic relationship between (Agamben’s) etymologizing and history. For Agamben’s procedure here is rather controversial—that is, he is primarily interested in seek100

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ing out places of origin at the cost of historical contextualization. For a critique of this approach, see Peter Fitzpatrick, Modernism and the Ground of Law (Cambridge: Cambridge University Press, 2001). Fitzpatrick’s text is the best reconstruction and critique of Homo Sacer that I was able to find. The central points of my brief reconstruction of Agamben’s main arguments are indebted to this text. 18 Agamben, Homo Sacer, 82. 19 Agamben, Homo Sacer, 110. 20 Agamben, Homo Sacer, 20. 21 Agamben, Homo Sacer, 170. 22 Agamben, Homo Sacer, 171. 23 Agamben, Homo Sacer, 9–10. 24 Theodor W. Adorno, Critical Models: Interventions and Catchwords, ed. and trans. Henry W. Pickford (New York: Columbia University Press, 1998), 90. 25 Agamben, Homo Sacer, 181. 26 Agamben, Homo Sacer, 182. 27 Agamben, Homo Sacer, 185. 28 Agamben, Homo Sacer, 24. 29 Agamben, Homo Sacer, 25. 30 Giorgio Agamben, Potentialities: Collected Essays in Philosophy, ed. and trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1999), 42. 31 Shoshana Felman and Dori Laub, Testimony: Crises of Witnessing in Literature, Psychoanalysis, and History (New York: Routledge, 1992), 3. 32 Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive, trans. Daniel Heller-Roazen (New York: Zone Books, 1999), 13. This is the only description that Agamben gives us concerning the genre of his text. We will come back to that. 33 Agamben, Remnants of Auschwitz, 31. 34 Agamben, Remnants of Auschwitz, 21. 35 Agamben, Remnants of Auschwitz, 33. 36 Agamben, Remnants of Auschwitz, 33–34. 37 Agamben, Remnants of Auschwitz, 34. 38 Agamben, Remnants of Auschwitz, 38. 39 Agamben, Remnants of Auschwitz, 39. 40 Agamben, Remnants of Auschwitz, 55. 41 Zˇ iˇzek, Did Somebody Say Totalitarianism? 77. 42 Agamben, Remnants of Auschwitz, 55. 43 Agamben, Remnants of Auschwitz, 54. 44 Agamben, Remnants of Auschwitz, 54. s/citing the camp

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45 Agamben, Remnants of Auschwitz, 88. 46 Agamben, Remnants of Auschwitz, 94. 47 Agamben, Remnants of Auschwitz, 97. 48 Zˇ iˇzek, Did Somebody Say Totalitarianism? 68–88. ˇ zek, Did Somebody Say Totalitarianism? 81. 49 Ziˇ ˇ zek, Did Somebody Say Totalitarianism? 85. 50 Ziˇ 51 Zˇ iˇzek, Did Somebody Say Totalitarianism? 86. 52 Agamben, Remnants of Auschwitz, 104. 53 Agamben, Remnants of Auschwitz, 105. 54 Agamben, Remnants of Auschwitz, 106. 55 Agamben, Remnants of Auschwitz, 106. 56 Agamben, Remnants of Auschwitz, 114. 57 Agamben, Remnants of Auschwitz, 117. 58 Agamben, Remnants of Auschwitz, 120. 59 Agamben, Remnants of Auschwitz, 129. 60 Agamben, Remnants of Auschwitz, 130. 61 Agamben, Remnants of Auschwitz, 133. 62 Agamben, Remnants of Auschwitz, 133. 63 Agamben, Remnants of Auschwitz, 145. 64 Agamben, Remnants of Auschwitz, 145. 65 Agamben, Remnants of Auschwitz, 146. 66 Agamben, Remnants of Auschwitz, 147. 67 Agamben, Remnants of Auschwitz, 148. 68 It is in this context that Agamben points, again, to the other strategy—something of a double of the Nazi strategy—that confines the Muselmann in the biopolitical prison: namely the quasi-theological prohibition against probing into the ‘‘origins’’ of Auschwitz by turning Auschwitz into an indecipherable enigma, into the mystery of the supposed ‘‘unsayability’’ of Auschwitz (see Agamben, Remnants of Auschwitz, 157). 69 Agamben, Remnants of Auschwitz, 150. 70 Agamben, Remnants of Auschwitz, 164. 71 Agamben, Remnants of Auschwitz, 101. 72 Saul Friedlander, Memory, History, and the Extermination of the Jews in Europe (Bloomington: Indiana University Press, 1993), 132. 73 This is how Thomas Wall, in Radical Passivity: Levinas, Blanchot, and Agamben (Albany: suny Press, 1999), recommends that one read Agamben’s texts: ‘‘It is important to read each section or panel superimposed on the others or as if each simultaneously occupied the same space’’ (121). What seems to be omitted in this 102

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approach is precisely what is of interest here: the links between the di√erent sections and panels. 74 Maurice Blanchot, Le Livre à Venir (Paris: Gallimard, 1959), 320. 75 These remarks allude of course to some points made by Adorno in his The Jargon of Authenticity. These allusions do not want to make the claim that Agamben’s text reproduces a kind of jargon—after all, most of the features that, according to Adorno, characterize jargon are simply lacking in Agamben: for instance, the arrogance of the philosopher to simply create new, viable words in order to express a new truth cannot be found in Agamben. The question remains, however, as to the function of etymology in his texts. Following a lead given by Adorno, one could look at what happens to the foreign words in his text once they are turned into basic words. My suspicion is that, rather than attending to the historical, social, and political sedimentations in them, Agamben’s foreign words, by means of a procedure that is perhaps the exact counterpart of Heidegger’s replacement of the Latinate vocabulary of modern ontology with German compounds, absorb history, the social, and politics in a quasi-organic way, thereby reifying them. In short, they are in danger of losing their foreign and strange character, their historical index. This loss is, for Adorno, not only a forgetting of the nonorganic materiality of language, but also of su√ering, insofar as foreign words are also a remainder of su√ering. For Adorno on foreign words, see Shierry Weber Nicholson, Exact Imagination, Late Work: On Adorno’s Aesthetics (Cambridge, Mass.: mit Press, 1997), 84–89; and Eric L. Krakauer, The Disposition of the Subject: Reading Adorno’s Dialectic of Technology (Evanston, Ill.: Northwestern University Press, 1998), 150–55. 76 This hint can be found in Jay Bernstein’s Adorno: Disenchantment and Ethics (Cambridge: Cambridge University Press, 2001), 387–89. His long footnote on Agamben attempts to trace some of the similarities and di√erences between Agamben’s negative theodicy of Auschwitz and Adorno’s own negative theodicy of Auschwitz. My own argument is deeply indebted to Bernstein’s brilliant insights—it is, in fact, their repetition and extension. 77 Agamben, Remnants of Auschwitz, 77. 78 See Martin Heidegger, Kant and the Problem of Metaphysics, trans. Richard Taft (Bloomington: Indiana University Press, 1990). 79 Michael Hardt and Antonio Negri argue even that Agamben’s conception ultimately leads into an anthropology. See their Empire (Cambridge, Mass.: mit Press, 2000), 421. 80 Does this ontological state of the subject—somewhere Agamben writes that ‘‘we are all virtually homines sacri—not participate in a displacement of the historical s/citing the camp

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condition of violence and su√ering that is thus a≈rmed and eternalized? And does this mean that the critique of biopolitics is made to disappear through this ontological gesture? Although I cannot develop this point here, it would be interesting to examine the curious appearance of sadomasochism in Agamben’s ontology of the subject. We have already pointed out the displacement that allows Agamben to pass from the Muselmann/survivor to desubjectification/ subjectification as infrastructure of subjectivity. But is there not another, even more troubling displacement at work in his discussion of shame as the ontological structure of subjectivity? Can one really read the scene with the ‘‘student from Bologna’’ and his executioner in terms of a sadomasochism where the masochist subject and the sadist subject enter a zone of indistinction and coincide? Is then Levi’s ‘‘gray zone,’’ where for Agamben victim and perpetrator become virtually indistinguishable, ultimately the zone of sadomasochism? But this would mean ignoring completely the asymmetry already at work between masochism and ˇ zek states: ‘‘The sadist and his victim never form a complementary sadism. As Ziˇ ‘sado-masochist’ couple. . . . In sadism we encounter direct negation, violent destruction and tormenting, whereas in masochism negation assumes the form of disavowal’’ (The Metastases of Enjoyment: Six Essays on Women and Causality [London: Verso, 1994], 91). That is, sadism and masochism follow completely different forms of logic—the logic of institution and violence versus the logic of contract and suspended violence—that must not be confused. 81 Agamben, Remnants of Auschwitz, 65. 82 Agamben, Infancy and History: Essays on the Destruction of Experience, trans. Liz Heron (London: Verso, 1993), 50, 49. 83 Agamben, Infancy and History, 51. 84 Agamben, Remnants of Auschwitz, 159. 85 See Agamben, Remnants of Auschwitz, 160–61; Agamben’s reflections on Pascoli literally repeat what he had already elaborated on in his The End of the Poem: Studies in Poetics, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1999), 62–75. 86 Agamben, Remnants of Auschwitz, 161. 87 Agamben, Remnants of Auschwitz, 161. 88 Are there any other exemplary witnesses? I could not find any in Agamben’s text except for poets. 89 See his The End of the Poem, 93. 90 Agamben, The End of the Poem, 91. ˇ zek, Did Somebody Say Totalitarianism? 84. 91 Ziˇ ˇ zek, Did Somebody Say Totalitarianism? 85. 92 Ziˇ 104

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93 Paul Celan, Collected Prose, trans. R. Waltrop (Manchester: Carcanel Press, 1986), 34. 94 Celan, Collected Prose, 34. See also Theo Buck, Muttersprache, Mördersprache. CelanStudien I (Aachen: Rimbaud, 1993). 95 Andrew Benjamin, Present Hope: Philosophy, Architecture, Judaism (London: Routledge, 1997), 145. 96 Theodor W. Adorno, Negative Dialectics, trans. E. B. Ashton (London: Routledge, 1973), 365. 97 Adorno, Negative Dialectics, 365. 98 Adorno, Noten zur Literatur (Frankfurt am Main: Suhrkamp, 1974), 423 (my translation). 99 For an elaboration on Adorno’s notion of promise as the ‘‘promise of nonsemblance’’ and an attempt to read art’s promise of nonsemblance as a thematization of the promise already hidden in historical reality, see Jay Bernstein, Adorno: Disenchantment and Ethics, 435–36. 100 This passage is taken from Agamben’s reading of Hölderlin’s notion of rhythm that can be found in The Man without Content, trans. G. Albert (Stanford: Stanford University Press, 1999), 99. This text repeats Heidegger’s program of the overcoming of aesthetics toward a more ‘‘original’’ understanding of art. Since it is not possible here to trace Agamben’s argument in detail, some crude markers have to su≈ce. Following Heidegger’s path in ‘‘The Origins of Work of Art’’ (in Poetry, Language, Thought, trans. A. Hofstadter [London: Harper and Row, 1971]) and in Nietzsche, vol. 1: The Will to Power as Art (trans. David Farrell Krell [London: Routledge and Kegan Paul, 1981]), Agamben diagnoses a fatal rupture marking art as well as man’s relation to the world. The emergence of aesthetics is the symptom for this rupture, for the disruption of the unity between art and the experience of art. This rupture has multiple consequences: for aesthetics separates not only the artist from the artwork, but also the artist from the spectator and the spectator from the artwork (see 35). The spectator no longer participates in the experience of the artwork, but is forced to fall back on criteria solely provided by aesthetics. Art becomes an object for the judgment of taste—taste, however, implies both alienation from the work of art and self-alienation. In order to allow for a ‘‘more original, that is, more initial, way to think art’’ (51), the realm of aesthetics (and with it the realm of technics) has to be exited so that ‘‘the poetic status of man on earth’’ can be restored in ‘‘its original dimension’’ (67). This exit reveals itself as a return to Aristotle’s distinction between poiesis and praxis where poiesis stands in for the relation of totality that cannot be s/citing the camp

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thought by aesthetics. It is here that Agamben’s interpretation of Hölderlin’s notion of rhythm (see 94 √.) in terms of the work of art as ‘‘opening to man his authentic temporal dimension, as opening for him the space of his belonging to the world’’ (101) comes into play. 101 Agamben, The Man without Content, 109–10. 102 Agamben, The Man without Content, 102. 103 Agamben, The Man without Content, 6. 104 Agamben, The Man without Content, 114. 105 Agamben, The Man without Content, 112. 106 Agamben, Homo Sacer, 12. 107 Agamben, Homo Sacer, 171. 108 Agamben, Homo Sacer, 153. 109 Agamben, The Man without Content, 113. 110 Agamben, Homo Sacer, 188. 111 Agamben, Remnants of Auschwitz, 164. 112 Agamben, The Man without Content, 67. 113 Theodor W. Adorno, Prisms, trans. S. and S. Weber (Cambridge, Mass.: mit Press, 1984), 34.

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a n d r e a s k a ly va s

the sovereign weaver Beyond the Camp Sovereigns still exist! Sovereigns? From their long lateral auditory line ceaselessly they have to listen ceaselessly to attenuated signs from the outside Powdery shadow darkens them their beautiful watery home is surrounded. —Henri Michaux, Darkness Moves

At a moment when, amidst the emergence and consolidation of new transnational, global institutions, the concept of sovereignty has been declared obsolete, Giorgio Agamben seeks to remind us of its lingering presence. Sovereign power, he argues, remains a constitutive, even paradigmatic, feature of modern politics. But even though we are living under its shadow, it continues to evade our understanding. The existing concepts of inherited political thought are inadequate to grasp its obscure and indeterminate nature.∞ It has proven to be resistant to theoretical clarification and conceptual systematization. Both legal and extralegal, neither public nor private, evoked as the foundation of constitutional constructions and yet considered external to them, productive and repressive at the same time, moving restlessly between the norm and the exception, appearing in institutional forms only to vanish in the realm of the extra-institutional, sovereign power defies fixed categories of thought. In a 1992 essay, Agamben declared that the ‘‘concepts of sovereignty and constituent power which are at the core of our political traditions have to be abandoned or, at least, to be thought all over again . . . and those who continue to use these concepts uncritically literally do not know what they are talking about.’’≤ Homo Sacer is his own answer to the challenge to rethink critically the concept of sovereignty. It is an ambitious attempt to clarify this concept, breaking through its secrets to reveal its hidden location and true foundation. But this text is not only an e√ort to reexamine the nature of 107

sovereignty. It is also an attempt to assess its theoretical implications and to study its impact on modern politics. It is not, therefore, simply a return to sovereignty: Agamben does not aspire to revive previously established discourses of sovereign power. His approach is anything but conventional, and is far from being nostalgic or even apologetic. Indeed, Agamben’s originality lies in the unique way he gazes at the past of sovereignty in order to comprehend its present. This originality, however, does not eclipse his considerable debt to other authors who have grappled with the paradoxes of sovereignty. Carl Schmitt, Walter Benjamin, Hannah Arendt, and Michel Foucault emerge as Agamben’s most vital interlocutors. With a highly selective and trenchant reading of their works, he moves beyond their conclusions to advance some provocative new propositions of his own. By creatively combining and further developing Schmitt’s definition of the sovereign decision, Foucault’s notion of biopower, and Arendt’s analyses of totalitarianism and the status of rightless and stateless people, Agamben probes the murky interstices of the norm and the exception, exploring that gray zone where the classical distinctions between bios and zo¯e, good life and natural life, nomos and physis, first originated only to be subsequently blurred, broken, and finally e√aced.≥ It is in this zone of indistinction that he finds the original manifestation and the true dwelling of sovereignty.∂ The foundation of sovereign power, Agamben argues, consists of a double indistinction.∑ On the one hand, sovereignty exceeds the terrain of the juridical, as Schmitt was keen to show, to embrace the extralegal moment of discretion.∏ Its true realm of operation, and here Agamben further expands Arendt’s and Benjamin’s critical dialogue with Schmitt, is a state of exception that has become the rule.π Sovereignty, in other words, finds itself in a state of permanent emergency where norm and fact coexist. Or, as he puts it using categories of early modern political thought, the sovereign emerges at the nodal point where the natural state coincides with the political state. On the other hand, the sovereign decision is always about what Agamben calls sacred life, which is a life that might be killed though not sacrificed because it is neither truly political nor solely biological. Sacred life is a hybrid of political and biological life: zo¯e politicized but not included in the political community, or rather, included through its exclusion. Hence the real subject of sovereign power is neither the civic life of the citizen nor its opposite, namely, the pre-political, natural life. Instead, the sacred life is 108 andreas kalyvas

neither fully included nor totally excluded, neither inside nor outside politics, but simply suspended, tragically trapped in the realm of indistinction between the oikos and the polis, the natural and the social, the private and the public.∫ And yet it is precisely this suspension that brings it into the orbit of sovereign power and subdues it to the violence of its decision.Ω One of the most intriguing aspects of Agamben’s approach is his innovative and bold reconceptualization of sovereignty, which I am inclined to call ‘‘bio-sovereignty.’’∞≠ The bio-sovereign does not simply exercise external control over its subjects. Nor does it limit itself to the juridical regulation of social relations. Its powers are not confined to mere repression and coercion, and it does not rule solely through legal prohibitions. It is also a productive, positing sovereign since its powers go deep, so to speak, beyond the legal sphere and juridical instruments to touch and a√ect the very constitution of life.∞∞ It rules over brains and bodies, politicizing and policing human nature, producing, administering, and managing life itself, and ultimately deciding on its value or nonvalue.∞≤ This politicization of biological life subjugates the body to the direct and absolute rule of bio-sovereign power. Given this ominous description of sovereignty, it comes as no surprise that Agamben’s bio-sovereign finally finds its proper place in the concentration camp. The latter becomes the definitive institutional location of the former. There is an elective a≈nity, a homology, between the sovereign and the camp. They both operate in the indeterminate space of a stable exception, in a permanent state of emergency, where bare life becomes the direct concern of bio-sovereign politics and where the classical distinction between political and biological life is wholly e√aced. In the concentration camp, bio-sovereign politics fulfills its radical potentials, becoming, according to Agamben, the paradigmatic form—‘‘the hidden matrix’’—of political modernity.∞≥ Agamben’s historical and conceptual trajectory of the bio-sovereign, from its timid birth in the ancient city to its culmination in the modern concentration camp, di√ers from those of his three main interlocutors. For instance, he rejects Arendt’s interpretation of sovereignty as a post-classical concept alien to the ancient Greek political tradition. For Arendt, sovereign power instead grew out of the Judeo-Christian theological notion of the divine will, and survived, though in an inverted form, the transformations brought about in the modern world.∞∂ It is a claim, of course, she had e√ectively appropriated from Schmitt’s political theology, which identified the sovereign conthe sovereign weaver

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stituent will as a secularized theological concept but turned upside-down, converting the transcendental God into the worldly founding lawgiver.∞∑ Agamben, by relocating the origins of sovereignty further back in history in ancient Greece and Rome, challenges both Arendt’s and Schmitt’s lineages of sovereignty and questions their secularization thesis.∞∏ This disagreement is not trivial. It expresses deeper theoretical di√erences. Whereas Arendt and Schmitt underscore the inherent relationship between sovereignty and will, Agamben dispenses with the question of the will, about which he is rather uninterested, to focus on a distinct set of issues involving the relationship between political power and life.∞π Unlike Arendt, whose main concern was to rethink political freedom, by extricating it once and for all from the Christian theological remnants of the will, Agamben explores the biopolitical nature of sovereign power that Arendt had ignored. This investigation also di√ers radically from Schmitt’s e√ort to develop a pure theory of democratic legitimacy grounded in the popular constituent subject.∞∫ Agamben certainly shares with Arendt and Schmitt a common anxiety about what they all perceive as the eclipse of politics. His study of the historical and conceptual trajectory of sovereignty is motivated by an attempt to illuminate the philosophical-political foundations of this eclipse. But whereas Arendt locates the loss of the political in Plato’s hostility to the city and in the Judeo-Christian celebration of the vita contemplativa and Schmitt attributes it to the liberal subordination of politics to economic, legal, and moral considerations, Agamben, by contrast, situates the loss of politics in the ancient city, where the rift between bios and zo¯e first occurred. This biopolitical fracture represents the unsettling legacy that ancient political philosophy bequeathed to the moderns and that haunts the history of modern politics. Thus political modernity might be defined as the continuous struggle to heal, repair, or even transcend this fundamental fissure. The problem of where to locate the beginnings of politics is one of a set of problems Agamben and his three interlocutors seem to diverge about. There are, for instance, di√erent, and at times contrasting, conceptions of history. Where Arendt discerns discontinuities and breaks, Agamben finds longterm temporal continuities.∞Ω Not only is Arendt’s notion of new beginnings absent from his narrative, also gone is her emphasis on radical ruptures, what she allegorically calls ‘‘miracles.’’≤≠ It is as if there is no room for alterity and the event in Agamben’s historical reconstruction of sovereign power; there is also no space for ontological creation and radical otherness.≤∞ Schmitt, it should be remembered, understood sovereignty in similar 110

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terms to Arendt. ‘‘The sovereign decision,’’ he claimed, ‘‘is an absolute beginning, and the beginning (understood as arxh) is nothing else than a sovereign decision.’’≤≤ By contrast, Agamben, by leaving out this aspect of sovereignty from his own definition, focuses on how the modern is deduced from the ancient and the present from the past. He proposes a theory of history that does not seem to bring forth anything new. This is an odd representation of historical time, given Agamben’s repudiation in an earlier text of ‘‘the vulgar representation of time as a precise and homogeneous continuum’’ that has prevailed in Western thought.≤≥ It is even more perplexing because in this previous text he sought to redeem a di√erent conception of historical time, in which time is conceived as being incoherent, heterogeneous, sudden, and discontinuous.≤∂ Unfortunately, Homo Sacer returns to a representation of time—the time of sovereignty—as uniform, one-directional, and rectilinear. It is this focus on an uninterrupted historical and philosophical continuity, embodied in the survival of sovereignty over a period of twenty-five centuries that also distinguishes Agamben from Foucault. Foucault’s genealogical inquiries of the contingent, accidental, small, but not trivial, surprises of lost events and his notion of the episteme can hardly be accommodated in Agamben’s grand narrative.≤∑ And they are not. Agamben explicitly rejects Foucault’s thesis that political modernity represents a break with the past, marked, among other things, by the passage from the juridical model of a unitary and localizable sovereign power to di√use, transversal, and impersonal disciplinary relations of power.≤∏ Sovereign biopolitics, Agamben implies, has uninterruptedly accompanied the ancients and the moderns alike, remaining una√ected by critical events, such as the birth of the ancient-Greek democratic city, the institution of isonomia, the emergence of commercial capitalism, the modern discovery of rights, the invention of constitutionalism, the democratic revolutions of the late eighteenth century, and the entry of the laboring masses into politics.≤π All these phenomena, instead of signaling a break with sovereign biopolitics, have significantly contributed to its inexorable historical unfolding and to the further blurring of the distinction between the norm and the exception to the point where they are no longer distinguishable.≤∫ But how can we explain this absence of time? It surely has something to do with its representation as homogeneous and continuous. But why and how? For three reasons, I think. First, it might be related to a hidden teleological kernel that Agamben inserts into Western thought as he tries to trace the unbroken evolution of sovereign biopolitics from its modest and the sovereign weaver

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convoluted origins in the ancient city to its full materialization in the modern camp, where it meets its scandalous destiny. This homogeneous and linear history of sovereignty suggests that the horrific emergence of the concentration camp in the twentieth century was prefigured in the incipient days of the Occidental political tradition.≤Ω And even if, as Agamben says, the camp has replaced the city as the fundamental biopolitical paradigm of the West, it is only because the former radicalized and fulfilled the latter’s latent possibilities. Whereas in the classical world the distinction between bios and zo¯e was somehow blurred but still distinguishable, in Western modernity it was eliminated. Modernity, in other words, sought to repair and to eradicate ‘‘the biopolitical fracture’’ that occurred at least twenty-five centuries ago through a fundamental split between the biological and the social.≥≠ ‘‘Naked life,’’ Agamben asserts in his description of modern politics, ‘‘which was the hidden foundation of sovereignty, has meanwhile become the dominant form of life everywhere.’’≥∞ The dormant seed of the camp was always already present in ancient Greek politics and archaic Roman law, although in modern times it became more securely lodged within the city’s interior.≥≤ What was blurred is now fused.≥≥ Lacking from this highly abstract historical and conceptual reconstruction is an account of the reasons, forces, interests, struggles, movements, strategies, and actors that were and still are involved in the unfolding of bio-sovereign politics. By assimilating political relations to a single master concept, that of sovereignty, Agamben can no longer localize the contingency of political and social struggles. His approach, it must be said, assumes an almost totalistic, agentless history, and though it is concerned with politics and its eclipse, it is itself quite unpolitical. For example, while pointing to ‘‘the spaces, the liberties, and the rights, won by individuals in their conflicts with central powers,’’ he does not mention the specific content of these liberties and rights, their concrete protagonists, or even their broader political projects and visions. On the contrary, he adds that these conflicts ‘‘always simultaneously prepared a tacit but increasing inscription of individuals’ lives within the state order, thus o√ering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves.’’≥∂ The history of Western politics is a history of repeated failures. But why were these e√orts ‘‘always simultaneously’’ defeated at the very moment of their assertion? Agamben gives no explanation for the sovereign’s repeated victories and unstoppable march toward the camp, leaving the impression that the disastrous triumph of sovereign 112

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power might have been guided by the iron hand of historical necessity all the way to the camps. This brings me to a second possible reason. The absence of time might be attributed to Agamben’s alarming and rather fatalistic acknowledgment that ‘‘the ‘body’ is always already a biopolitical body and bare life, and nothing in it or in the economy of its pleasure seems to allow us to find solid ground on which to oppose the demands of sovereign power.’’≥∑ The biopolitical body, which cannot be escaped since it cannot be negated or even transformed, seems literally to hover outside time. The eternality of the biopolitical body defies historical time. Finally, this distressing absence of the experience of time might be the result of its suspension in the concentration camp. What is the exception turned into a rule if not the negation of its temporal singularity as an event? After all, the exception that remains a fleeting occurrence, an indeterminate accident, is a reminder of historical discontinuity and temporal heterogeneity. The camp, by fusing the exception and the rule into a permanent state of emergency, halts time. In the camp there is no room for unpredictable exceptions, precisely because they have become the norm. Time is nonexistent as a lived experience. If the camp is a limit zone beyond time, the sovereignty that inhabits its space is also situated outside time. It is frozen, congealed time. In Agamben’s political writings there is a critical reading of modern politics and what it has become—in its various democratic, totalitarian, and liberal manifestations—by failing to remain faithful to itself, that is, to remain political. In deciding to embrace the unpolitical, that is the biological body, modern Western politics has dissolved into the dark, limit zone of sovereignty and its institutional manifestation, the concentration camp.≥∏ Agamben’s return to sovereignty contains a warning about the decline of politics and the philosophical-ethical foundations that may have occasioned it. It is a conceptual return to sovereignty only in the sense that it departs normatively from it. It approximates it in order to disavow it. Homo Sacer hints at a future sovereignless politics, a politics-to-come, illustrated in his call for an ‘‘irrevocable exodus from any sovereignty.’’≥π Schmitt is turned upside down. More interestingly, by allowing a clearer vision of the modern horrors associated with sovereign power, Agamben aspires ‘‘to bring the political out of its concealment and, at the same time, return thought to its practical calling.’’≥∫ The way in which he envisions—or fails to envision—this new politics is the sovereign weaver

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another problem. Will it be a revival of traditional concepts, a retrieval of forgotten ones, or will it rely on completely new categories of thought and action? Or is it even relevant to pose the problem in these temporal, comparative terms? I think that for Agamben it does not really matter. Insofar as he starts from the standpoint of the originary biopolitical fracture and its inescapability, he remains within the horizons of the Occidental political tradition, ‘‘the political destiny of the West.’’≥Ω He does not aspire to transcend this tradition, but rather to reconstruct the link between bios and zo¯e in a way that will heal but not obliterate this fracture. As he mindfully declares, ‘‘I would not feel up to forgoing this indistinction of public and private, of biological body and body politic, of zo¯e and bios, for any reason whatsoever. It is here that I must find my space once again—here or nowhere else. Only a politics that starts from such an awareness can interest me.’’∂≠ After all, from a metapolitical point of view, this is what constitutes the genuine nature of Western politics, that is, the struggle to remedy this original fracture. The history of Western politics is invariably marked by the blurred distinction between the oikos and the polis. Even so, all previous e√orts to heal this split have failed—and with tragic consequences—because they misunderstood healing as overcoming.∂∞ Unfortunately, it is in his attempt to meet this challenge that Agamben is also the least convincing and the most obscure. Sometimes he alludes to a di√erent relationship between political and naked life and sometimes he hints at a politics beyond the category of naked life as such.∂≤ Thus, on the one hand, he recognizes that ‘‘just as the biopolitical body of the West cannot be simply given back to its natural life in the oikos, so it cannot be overcome in a passage to a new body—a technical body or a wholly political or glorious body—in which a di√erent economy of pleasures and vital functions would once and for all resolve the interlacement of zo¯e and bios. . . . This biological body that is bare life must instead itself be transformed into the site for the constitution and installation of a form of life that is wholly exhausted in bare life and a bios that is only its own zo¯e.’’∂≥ On the other hand, he maintains that it is this ‘‘form-of-life, that, abandoning naked life to ‘Man’ and to the ‘Citizen,’ who clothe it temporally and represent it with their ‘rights,’ must become the guiding concept and the unitary center of the coming politics.’’∂∂ This ambiguity surrounding his notion of form-of-life is not the only problem. Agamben’s gesture toward a coming politics presupposes a pro-

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foundly Manichean vision of the political world split between two reified entities: the state and humanity (the nonstate).∂∑ It is also informed by a rejection of political power as identical to the state-form.∂∏ He does not di√erentiate among various forms and modalities of political power and overlooks instances of mediation.∂π By disregarding the distinct aspects of political power, politics is relegated to a single, pejorative version of sovereign power and state authority. It evokes that hostility toward political power found in many antistatist discourses, of both the libertarian and anarchist variety. Moreover, Agamben’s critique of rights has its own obscure moments. While the coming community will have no need for rights, at the same time Agamben emphasizes that a constitutive fact of the concentration camps was that ‘‘every juridical protection had disappeared.’’∂∫ In fact, before entering the camps, the Jews were deprived of their citizenship rights by the Nuremberg laws.∂Ω For it to wield absolute, unmediated power, the camp had to rely on this legal dispossession and was dependent on the creation of rightless people. In a telling passage, Agamben argues that the National Socialist state, by divesting some groups of their rights, debased them into naked life. ‘‘Inasmuch as its inhabitants [i.e., of the camps] have been stripped of every political status and reduced completely to naked life,’’ he maintains, ‘‘the camp is also the most absolute biopolitical space that has ever been realized—a space in which power confronts nothing other than pure biological life without any mediation.’’∑≠ A few lines later, he acknowledges that ‘‘it would be more honest, and above all more useful, to investigate carefully how—that is, thanks to what juridical procedures and political devices—human beings could have been so completely deprived of their rights and prerogatives to the point that committing any act toward them would no longer appear as a crime (at this point, in fact, truly anything had become possible).’’∑∞ What these passages suggest is not only that the operation of the camp ‘‘requires’’ that individual rights and freedoms be dispensed with in order to fully marshal sovereign biopower against the detainees, but also that these rights constitute prerogatives that go beyond mere formality. Rights mediate between the individual and political power and thereby hinder the absolute deployment of biopolitics. If, however, the state of exception requires individuals to have been previously deprived of their rights, it is reasonable to infer that had these rights not been revoked, the camp might not have been possible.

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Unfortunately, this important dimension of rights, suggested by Agamben’s description of the camp, is never thematized or discussed in relation to his previous critique, according to which because rights politicize zo¯e they remain within the logic of sovereign biopolitics.∑≤ There are two lines of arguments that implicate rights, two readings that coexist uneasily in Agamben’s texts. While in the one, the camp has to divest its inhabitants of their rights in order to reduce them to naked life, in the other the granting of rights is one of the constitutive operations by which biopower is exercised over the naked life of its subjects. And if one adds to this Agamben’s assertion that the new politics will be ‘‘a nonstatal and nonjuridical politics,’’∑≥ his vision of the coming community, beyond rights and legal norms, comes dangerously close to one of an extralegal, permanent (though sovereignless) exception. Agamben’s elusive notion of the coming politics ultimately dissolves into an eschatological, utopian vision of social life, which will fulfill the historical telos, and thus will move beyond historical time.∑∂ That this vision is infused with strong theological and messianic overtones, so that it becomes a particular version of political theology, is one issue.∑∑ That it comes perilously close to the self-deluding Marxian utopia of a society ‘‘ordered exclusively for the full enjoyment of worldly life,’’∑∏ which will overcome Hume’s two ‘‘circumstances of justice’’ and remove once and for all the fact of domination and asymmetrical power relations from collective experience, poses another, more important problem.∑π Agamben’s vision demands an enormous leap of faith away from the realm of necessity and worldly reality. It is also a vision of a society without institutions and without a modern structure of rights and institutionalized liberties, which carve out autonomous spaces and adjudicate competing claims and interests among friends and enemies.∑∫ In a sense, Agamben uncritically accepts the terms of a liberal interpretation of rights as essentially negative and defensive in nature, and as erecting a protective, though ultimately impotent, wall against state incursions. Since Agamben perceives rights solely as an aspect of the sovereign state, once the latter is eliminated the former loses its legitimacy and reason for being. What he overlooks, however, is the fact that rights do not need to be exclusively defined in relation to the state.∑Ω They can be deployed as instruments of social coordination. What if ‘‘the happy life’’ and the ‘‘pleasures’’ of a group or a ‘‘nonsubjective singularity’’ di√er from or clash with ‘‘the happy life’’ of others? Or, is it that all will share a common understanding of what constitutes a ‘‘happy life’’? If this is the case, sub-

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stance will entirely subsume the form and negate legality, the good will consume the right, and a reluctant consensus will circumvent disagreements and di√erences. Agamben’s notion ‘‘of an inessential commonality’’ and of a coming community, besides its strong communitarian allusions, cannot accommodate everything.∏≠ It is either a celebration of plurality—but then it would need to confront the vexing question of how the peaceful coexistence among di√erent subjectivities can avoid degenerating into a war of all against all—or it is an appeal to solidarity, but in that case it has to show which limits are to be imposed on these subjectivities and what juridical forms such constraints would take. Agamben’s aversion to procedural or formal law, apparent in his elliptical but indicative denunciation of the rule of law, reflects this aporia. ‘‘Nothing is more dismal,’’ he argues, ‘‘than this unconditional being-in-force of juridical categories in a world in which they no longer mirror any comprehensive ethical content.’’∏∞ But if juridical categories were simply to mirror specific comprehensive ethical values, reducing the legal to the ethical, there is an obvious question that emerges: Whose ethical values are to be reflected in the legal order?∏≤ Again, it is di≈cult to comprehend on what grounds Agamben evokes simultaneously the notion of a plural community composed of various ‘‘pure singularities’’ and the legal codification of a comprehensive ethical value system.∏≥ Law as a formal medium of social integration and regulated interaction among various antagonistic and incommensurable particularities recedes before this idealized and unrealistic social vision, ultimately ceding its place to a fully reconciled, thus depoliticized, community. If one also considers Agamben’s rejection of the principle of political representation, which does not have to be formulated as bourgeois parliamentarism, his concept of ‘‘an inessential commonality’’ verges on the illusion of a spontaneous self-transparency and a smooth, almost natural, overcoming of social opacity and institutional and symbolic mediations. ‘‘The unrepresentable,’’ he maintains, ‘‘should exist and form a community without either presuppositions or conditions of belonging.’’∏∂ It seems to me that in Agamben’s vision of the coming community, however inessential and decentered it may sound, all traditional forms of intermediary links and mediations would disappear along with political power. Surprisingly enough, Agamben comes very close to advocating the interpenetration and fusion of the social and the political: the coming sovereignless community emerges as seamless, one with itself, with no hos-

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tilities and enmities and without institutionalized mechanisms of social coordination and will formation. Notwithstanding these ambiguities, Agamben’s study of sovereign power is a powerful indictment that not only cannot be ignored, it also provides a meaningful framework for addressing some of the most pressing problems of our own political world. After all, today the body is regulated by political, juridical, and administrative decisions, legislatures enact laws pertaining to human life and its reproduction, emergency measures are increasingly invoked to deal with alleged threats to state security, and the numbers of refugees and refugee camps are disturbingly proliferating at the margins of the West. But do these developments confirm Agamben’s claim that there is an intrinsic bond among sovereign power, biological life, and the camp? And is a sovereignless community an adequate and persuasive solution to these problems? I attempted to answer the second question in the previous section.∏∑ Regarding the first question, Agamben is certainly right to suggest that the concept of sovereignty needs to be radically rethought. But, unlike Agamben, I do not think it should be rejected. To insist on the significance of the concept of sovereignty, despite its paradoxes and transgressions, is to insist on its strongly egalitarian and democratic implications. For one thing, the notion of popular sovereignty constitutes an important improvement over premodern visions of the political community as consisting of unequal status groups and instituted privileges, and provides a powerful symbolic and institutional weapon for the excluded and dispossessed. It also materializes the normative value of political self-determination and collective autonomy. Moreover, I do not see a necessary link among sovereign power, the concentration camps, and bare life. The bio-sovereign does not exhaust the multiple forms and rich democratic potentials of sovereign politics. Moreover, Western political thought is more heterogeneous and resourceful than Agamben suggests. In what follows, I will allude to an alternative conception of sovereignty. The limits of the present discussion, however, allow me only a series of broadly sketched propositions, which will need careful elaboration elsewhere. For certain key elements of such alternative conceptualization of sovereignty, I now turn to Plato. Undoubtedly, it is an odd place to look. For if anyone has sought to collapse the distinctions between the political and the natural, polis and oikos it is certainly Plato. As Aristotle first noted, Plato’s 118 andreas kalyvas

vision of the perfect, just city reflects the structure of the household. It is an amplified replica, or simulacrum, of the paradigm of the ancient family unit.∏∏ The philosopher-king rules the subjects of the city like the patriarch rules over the subordinate members of his family. Another, more important problem is that Plato’s argument, even more than Aristotle’s, fits Agamben’s description of biopolitics rather well. The biological body was of primary interest to Plato. In all his political dialogues, he expressed a strong, at times obsessive concern for physical education, rearing, medicine, sexuality, and reproduction. His texts abound in bodily metaphors and one of his main preoccupations was with the extensive control that rulers exercise over the biological life of their subjects. Agamben’s terms and concepts are here very relevant. The politicization of zo¯e and the depoliticization of bios emerge as central components of Plato’s political philosophy. If Aristotle attempted to draw analytical and conceptual distinctions between these two forms of life, Plato sought to overcome them. In fact, the blurring and ultimate fusion of political and natural life seems to have found its theoretical share in Plato. Finally, there is another aspect that might qualify Plato’s politics as biosovereign politics: His ideal philosopher-ruler is above the law, located in the extralegal terrain of pure discretion and arbitrariness. Plato’s distrust of laws and the juridical dimension of the city, particularly evident in The Republic, has been too widely remarked upon to warrant any additional comment. But here I am not interested in The Republic.∏π I want to focus on another of Plato’s political dialogues: The Statesman.∏∫ For it promises a rather di√erent conception of sovereign power than that of The Republic. For my purposes, it is not relevant whether these changes signify a complete abandonment, a partial amending, or a simple addition to his previous propositions. Nor does it matter whether Plato’s description of the true statesman foreshadows the concept of the sovereign in the modern sense of the term. I am not claiming that he anticipates a theory of sovereignty or that his intention was to develop one. What I am claiming, rather, is that his discussion of the statesman and statesmanship contains elements of a di√erent sovereignty that breaks the nexus among political power, bare life, and the concentration camp. Most promising in the context of the present discussion are the changes Plato introduces in his definition of the political ruler and the nature of politics. In The Statesman, he moves away from the model of the politicization of life and biopower with some important consequences. To see this, we must look carefully at the dialogue itself. Reflecting on the nature of politics, rulership, and on the attributes of the statesman, the the sovereign weaver

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character of the stranger initially addresses the representation of the ruler as a shepherd who exercises his powers over human animals (440d). The ruler, the stranger says, is responsible for the breeding, rearing, and nurturing of the flocks of human animals (261c–d). He goes on to define the sovereignking as a herdsman of hornless, featherless bipeds (265d) and politics as the sovereign-royal art of their collective rearing, which, in turn, is part of the broader art of nurturing zo¯e (267d, 261e). To complete the picture of Plato’s allusions to a biopolitical model of politics, the stranger specifies sovereign power as a form of command over the life of human animals (261a–b). And this is not just any kind of command. Its orders are productive.∏Ω The stranger asks the young Socrates whether or not the purpose of the ruler’s action is ‘‘the production of something.’’ ‘‘Of course,’’ concurs young Socrates (261a, c–d). The stranger, seemingly satisfied with this quick accord, jumps to another question and avoids directly answering this one. Nevertheless, what emerges from the ensuing exchange is fairly suggestive of the nature of political rule, which consists of issuing commands for the sake of producing and reproducing the life of hornless and featherless human flocks (261d). As Seth Benardete has correctly noted in his commentaries on The Statesman, this version of ‘‘political science is nothing but eugenics.’’π≠ It is this image of the Platonic shepherd-king that informs Foucault’s notion of ‘‘pastoral power,’’ in many ways anticipating Agamben’s concept of bio-sovereignty.π∞ Pastoral power is a particular technology of political rationality that ensures, sustains, improves, supervises, and commands the lives of individuals and their bodies. It is, in Foucault’s terms, both an individualizing and a totalizing power.π≤ Although he observes the untimely theoretical formulation of this metaphor in Plato and traces its resurfacing in medieval political thought, Foucault securely locates pastoral power at the inception of the state and ties it to the notion of biopower as the paradigmatic form of modern politics. This intriguing elaboration of pastoral power comes extremely close to Agamben’s version of sovereignty in one additional way. Contrary to some earlier formulations, Foucault’s discussion of pastoral power represents a subtle revision of his well-known argument about a replacement of sovereignty by disciplinary power. Now, pastoral power emerges at the interstices of a triangle: ‘‘sovereignty-disciplinegovernment,’’ echoing Agamben’s approach.π≥ But Foucault’s reading of Plato is flawed because it takes pastoral power as ‘‘the central problem’’ of The Statesman.π∂ However, the detailed exchange on the sovereign herdsman takes an unusual turn in Plato’s dialogue that 120

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seems to elude Foucault’s attention. Suddenly, the stranger addresses a potential objection to the definition of the sovereign ruler as shepherd. This objection pertains to the problem of competition and rivalry. If rearing is the defining feature of political rule, anyone who attempts to rule as a herdsman faces the challenge and potential antagonism of those who might claim that their professions are equally indispensable for the rearing and reproduction of human animals. ‘‘These others,’’ the stranger argues, ‘‘would all contend that they are in charge of rearing humankind, and not the rearing of human herds only, but even that of the rulers themselves’’ (268a–b). He mentions as potential rivals to the bio-sovereign merchants, farmers, gymnastics teachers, and doctors. Thus, whereas for Agamben the sovereign decision on bare life suggests that ‘‘the physician and the sovereign seem to exchange roles,’’ for Plato this is hardly possible or desirable. It would threaten to tear sovereign power apart and would create confusion over the proper holder of this power.π∑ Hence, the notions of breeding and rearing miss the constitutive features of genuine sovereign-royal politics. In addition, whereas actual herdsmen attend to everything related to their flocks, such as birthing, feeding, rearing, butchering, as well as treating them when they fall ill, entertaining and soothing them, the political shepherd is unable to cover all these heteroclite aspects of herding. To illustrate the seriousness of this objection, the stranger invokes a myth about the age of Kronos, when gods used to rule the universe directly. In those times, gods governed over humans as shepherds rule over their flocks. But the gods abandoned ruling to retreat to their celestial heaven, and human beings were left on their own. This retreat of the gods signals the beginning of true political life and suggests that politics originated the very moment gods stopped ruling on earth. Politics is possible only on the terrain of immanence. On this terrain, however, no human can emulate the rule of the gods. Only a divine, superhuman figure can be a sovereign shepherd because the true shepherd rules over ontologically di√erent and inferior beings. No person can claim a similarly divine superiority because all humans are essentially equal in nature. This immutable fact of equality invalidates the herdsman as a model for secular political rulership. One important reason for the stranger’s rejection of the metaphor of the shepherd is that it entails a divine figure that is nowhere to be found among humans. This is the case because such a figure presupposes a theological, transcendental form of absolute ruling that cannot be reproduced in worldly reality. The bio-sovereign, one can infer from Plato’s dialogue, is profoundly inapprothe sovereign weaver

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priate for human communities. It stands with the existence of commanding gods and falls with their disappearance.π∏ In addition to this objection, the stranger unexpectedly mentions a second one that undermines his previous allusions to biopolitics. He startlingly argues that the earlier definition of politics as the art of feeding and rearing human herds was wrong (276e). The concern with biological life fails to capture the true content and nature of politics. Feeding and rearing do not describe the authentic character of political science. What in fact defines politics and di√erentiates it from other arts and crafts is the act of caring for human herds. With this shift in argumentation, the stranger moves slowly but steadily away from the paradigm of biopolitics and the politicization of biological life.ππ Caring becomes the key activity, replacing feeding and breeding. In fact, ‘‘there is no art in the case of human beings that deserves the name of feeding, and if there is such an art, it belongs much more to many others, than to the sovereign’’ (276b). Therefore, ‘‘no other art could advance a stronger claim than that of sovereignty to be the art of caring for the entire community and ruling over humankind’’ (276). This change reveals some broader modifications in Plato’s argument. ‘‘Caring’’ does not necessarily pertain to biological life and it does not require the reduction of human communities to flocks of animals. The stranger now uses a strikingly di√erent terminology. Caring designates as its object the human society as such. And this new definition meant that human communities could no longer be likened to animal herds.π∫ Continuous rivalry and conflicts over competing claims on political authority rule out any similarity between the activity of herding and that of political rule. Zo¯e recedes from the political concerns of the sovereign, as it cannot account for the conflictual (agonistic?) aspects of sovereignty. It does not constitute an object worthy of political science. Only mythical gods can assume such control over human biological life. Worldly politics, by contrast, can exercise only care. Gods are divine shepherds who rule over the lives of human animals while secular sovereigns are simply caretakers of human societies. Moreover, Plato introduces an important distinction between the sovereignking and the tyrant. Although The Republic had an analogous distinction though based on di√erent criteria, it is in The Statesman where the distinction depends on how they rule. While the tyrant rules through pure force, the sovereign rules by voluntary consent (276e). Obviously, animals do not consent but humans do. This reference to voluntary consent takes us another step further away from biopolitics and the paradigm of zo¯e. I will return to 122

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this point below when I discuss Plato’s reevaluation of the importance of laws for politics. Despite this second attempt to define the sovereign, the dialogue takes another abrupt turn. It is not properly progressing toward the discovery of the true nature of sovereign politics, and the depiction of the sovereign as a caretaker is suddenly dropped out of the discussion. No concrete reason is given for this abrupt shift, but it does seem that caring still bears some resemblance to divine rule. The concept of caring is too generic, undi√erentiated, and universal to properly illustrate political life. Now, the sovereign is neither a herdsman nor a caretaker. It is at this point that for Plato political science ceases to be eugenics.πΩ Significantly, excluding eugenics from politics clears the ground to restart the search for the genuine sovereign all over again. This exclusion of eugenics as an indispensable presupposition for a precise account of a political life that is nonbiopolitical highlights the existence of alternative forms of political authority and power that are absent in Agamben’s account of Western political thought. At this point, we begin to glimpse the first elements of a di√erent understanding of sovereign power. Genuine sovereignty resembles the activity of weaving: the sovereign is the one who weaves. This displacement of caring by weaving has important implications. Weaving, contrary to herding, relates to lifeless objects rather than to living beings, while at the same time it remains a human activity, rather than a divine one.∫≠ In addition, the weaver, unlike the shepherd or the caretaker, is part of the political community and exists within the city and its laws. Finally, as Arlene Saxonhouse has observed, with the paradigm of weaving, ‘‘politics in the Politicus is isolated from the masculine pursuit of war.’’∫∞ But how are all these new elements related to our discussion of sovereignty? Often, Plato’s commentators focus on the outcome of weaving, the production of cloaks, and decode the image of political life hidden in this paradigm as primarily defensive and protective.∫≤ Here, however, I would like to concentrate on Plato’s description of three key traits that constitute the broader activity of weaving. They illustrate what one might call the anatomy of sovereign power. To begin with, the weaver depends on a number of other, auxiliary arts. Weaving, though a ‘‘productive art,’’ is not self-su≈cient (280e, 281e). It relies on the products of several more elementary arts, which Plato calls ‘‘contributory or collaborative’’ because they merely provide the tools and the materials necessary for the productive arts—weaving being one of them (281e). Among these contributory or subservient arts, the stranger pays the sovereign weaver

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particular attention to carding and spinning. They are indispensable for the preparation of wool through the separation and sorting out of the threads. This moment of separation is crucial for the formation and selection of those threads the weaver subsequently will work with to produce the intended fabric. To better grasp this dimension of separation, we need to briefly turn to another dialogue of the same period, The Sophist, which provides a more detailed and comprehensive account of this art.∫≥ In this Platonic dialogue, the Eleatic stranger points to the twofold operation of weaving (226d). On the one hand, it separates the worse from the better in a process that he describes as ‘‘a sort of purification,’’ and, on the other, it separates the like from the like in order to form distinct threads out of wool or hair (226d). Quite interestingly, the Eleatic stranger introduces another subdivision between two forms of purification: purification of human bodies and purification of objects. Weaving belongs to this second category (226e–227a). In a word, the craft of separation can be read as a metaphor for the act of exclusion that removes from the process of wool-working any material that is not needed and thus prepares for the reverse activity of combination, which constitutes weaving—and statesmanship or sovereignty— as such.∫∂ This double process of separation suggests the next step, that of weaving itself, whose preeminent activity is to combine, connect, and bond the remaining threads. The weaver proceeds to interweave those threads that were selected from the previous sorting. In a word, weaving operates on the terrain of inclusion. Furthermore, but equally important, the end product of weaving, the fabric, is a totally new creation that brings into being a previously absent entity. Although it consists of preexisting materials, these have been interlaced in such a way that they take on a completely new form. As an original creation, the fabric cannot be reduced to its parts. What makes it an original creation is precisely the productive and syncretic process of weaving.∫∑ Weaving is an instituting activity because by mixing and intertwining threads a new object comes into being. There are two immediate questions that we now have to confront. The first is how the paradigm of weaving relates to the nature of politics and the second is what we can learn from weaving with respect to sovereign power. Plato’s dialogue provides, if only tentatively, answers to both questions. First, the stranger directly likens weaving and politics. Like weaving, politics is an art of combining di√erent elements into a unified fabric, the fabric of the polis, and like the weaver, the genuine sovereign-statesman fashions the 124

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multiple webs that constitute the political community (305e–306a). The weaver, in other words, creates unity out of plurality.∫∏ As the stranger argues, although weaving involves exclusion and purification, it also entails the blending and mixture of disparate elements. ‘‘The materials,’’ he insists, ‘‘may be alike or dissimilar, but science gathers them all together to create one form or value’’ (308c). Thus, contrary to Agamben’s claim that sovereign power and the concentration camp operate on the same terrain of exclusion, the Platonic sovereign-weaver operates on the opposite terrain of inclusion. And whereas the camps promotes a naturalized homogeneity and a fictional sameness based on the myth of a pre-political, biological race, in the city the Platonic sovereign-weaver creates actual bonds of unity among a great plurality of di√erences.∫π Hence, political weaving contains elements of both plurality and unity. The civic fabric is a multicolored one. It does not eliminate or exclude di√erences; it simply blends and mixes them. Moreover, what are blended are not bodies but professions, classes, laws, habits, and mores. Castoriadis has highlighted this unique aspect of The Statesman, by noting that in this dialogue Plato endorses the paradigm of mixture.∫∫ This remark is right insofar as it points to an important aspect of politics: the necessary relationship between di√erence and unity, plurality and accord. Not only is social unity artificial rather than natural, it is also the result of a political project that creates social bonds out of disparate elements. This constructive and instituting project reveals the true nature of politics and the artificiality of the political community.∫Ω Furthermore, these bonds are also deeply immanent. They are linked together with no external assistance or mechanisms but by internal articulations that illustrate the immanent character of earthly, secular politics. The products of weaving, the stranger asserts, are ‘‘made of materials fastened without extraneous matter’’ (279e). Similarly, the bonds of the polis do not rely on extra-social sources of authority. Stanley Rosen has nicely captured this immanent aspect of politics by fittingly arguing that for Plato ‘‘because there are no such transcendent bonds that protect human beings . . . we must spin our own bonds.’’Ω≠ Benardete in his commentaries takes this point one step further by remarking that ‘‘in the political sense, the Statesman is the only atheistic dialogue.’’Ω∞ Secondly, the paradigm of the weaver is surprisingly suggestive for a reconceptualization of sovereign power that could free it from Agamben’s bleak critique. The reason is that for Plato weaving is a metaphor for the highest form of political activity. It is supreme because it is directly related to the foundations of a political community and it is not subservient to any the sovereign weaver

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higher authority or command. It is a founding and instituting power that produces/weaves the common life. Weaving corresponds to the founding, constituent activity ‘‘that makes the web of the state’’ (310e). This creative and positing aspect of sovereignty does not come as a surprise. After all, the stranger had described weaving as a productive art that brings into being previously nonexistent entities (281e). Although some ambiguities remain as to the true nature of politics—which appears now to be both a theoretical as well as a practical-productive art—and with respect to Plato’s careless simultaneous use of art and science in categorizing weaving, there is no doubt that ultimately weaving emerges as the sovereign and constituting political activity (305e), which creates ‘‘the finest and best of all fabrics. It enfolds all who dwell in the city, slave and free. . . . Its sovereign-kingly weaver maintains his control and oversight over it, and it lacks nothing that makes for happiness so far as happiness is obtainable in a polis’’ (311c). In his most important constitutional text, Schmitt proposes a voluntaristic, decisionistic, and absolutist theory of the constituent sovereign popular will.Ω≤ In the moment of its genuine manifestation, the constituent power reverts back to a pure state of exception, which he describes, following Emmanuel Sieyès, as a normless state of nature.Ω≥ It is this radical dimension of an ex nihilo creation, which emanates from utter nothingness, that alarms Agamben, and correctly so. But his anxiety does not stem merely from the violence that he considers implicit in Schmitt’s formulation, although it should be noted that Schmitt did not link sovereignty to violence, and that this linkage is instead a later projection emerging out of Benjamin’s and Arendt’s readings of Schmitt. The main reason for Agamben’s discomfort with the constituent sovereign is that it fails to solve the paradox of sovereignty, which entails the ineradicable externality of the sovereign subject to the legal order. Indeed, Agamben builds on this paradox in order to locate sovereign power in the realm of an exception that has become the rule, that is, in the camp. In this essay I have tried to suggest that the constituent dimension of sovereignty can be preserved without accepting Agamben’s notion of biopolitics. By way of conclusion, I want now to indicate briefly how the concept of sovereignty can be defined without endorsing the idea of an absolute ex nihilo beginning that unavoidably resurrects the specter of an unruly and lawless pre-political natural state with all its dangerous implications. As I

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see it, Plato’s instituting weaver provides elements for reconceptualizing sovereignty as requiring relative but not absolute new beginnings. Based on the reading of Plato that I have proposed, sovereignty can be reinterpreted as an instituting activity that is capable of original political creations and is able to constitute a new political and legal order, but it relies on preestablished materials, activities, and relationships to do so. The sovereign weaver does not start from nothing, and weaving does not represent a radical break with the past. Nor does it have to operate within a social, cultural, and juridical tabula rasa. There are three reasons that make such an absolute rupture impossible. First, Plato refers to the contributory and subservient arts that antedate and enable the instituting and productive activity of weaving. I take this aspect of the art of weaving as a metaphor that indicates the minimal but necessary survival of the instituted reality within the instituting power.Ω∂ This survival, however, does not specify a relationship of causality or determinacy. For Plato, the ‘‘fabric’’ of the political community is not predetermined by or a direct outgrowth of the material used for its making. It cannot be reduced to its constitutive ingredients.Ω∑ Second, among the things mixed together in the process of weaving Plato mentions the laws.Ω∏ The web of politics is also a legal web. The political weaver who ignores the legal threads might fail to create strong and cohesive social bonds. In this sense, the weaver is always already within the realm of the juridical, however unshaped and unformed this might be during the moment of the originary weaving. It cannot be by mere coincidence that The Statesman signals Plato’s appreciation of the importance of laws. Contrary to The Republic, Plato now considers legality as an important criterion for the categorization of di√erent regime types and for the distinction between good and perverse regimes. Even if this recognition of the significance of written laws appears to be a concession and a compromise that applies only to the second-best constitutions, it is still an important concession, especially when one considers his previous neglect of the legal aspect of politics.Ωπ Finally, weaving has its own inherent rules that need to be followed in order for the process of interlacing to take place. Weaving is not an arbitrary or disorderly practice. It does not operate in a lawless state of nature. It might be a supreme and extraordinary-founding activity but it does not pertain to an emergency situation. It is an art that presupposes some very specific regulations and rules since it is bounded by its own principles of operation. The weaver cannot violate the codes of

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weaving, for weaving is not a discretionary art that allows the violation or transgression of the rules that define and govern it. Weaving, in a word, constrains the weaver. However suggestive Plato’s paradigm of weaving is for rescuing sovereign power from its critics, its relationship to democracy poses a series of vexing issues, the most important of which has been pointed out by Benardete: ‘‘The city is a whole whose parts the statesman knows how to weave together, but no weaver has ever been an element of his own web.’’Ω∫ Does this critical remark point to an insuperable obstacle for extracting a theory of democratic sovereignty? I do not think so. After all, weaving (unlike other Platonic metaphors) is an art that does not require particular talents or skills and thus can be more easily taught and practiced by a multiplicity of individuals than, let’s say, philosophical activity.ΩΩ Once we are able to enrich the paradigm of weaving so as to make room for speech, public deliberation, and reflexive autonomy, and to move it in the direction of a collective-popular practice, Plato’s weaver could become surprisingly pertinent to a new conceptualization of democratic sovereignty. However, to explore the democratic qualities of the metaphor of weaving would require going beyond the tasks of this essay, and, in fact, going beyond Plato and the ancients. notes I would like to thank Arlene Saxonhouse, Steven Bourke, Ann Kornhauser, and Neni Panourgia for their helpful comments and insightful suggestions. 1 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Stanford, Calif.: Stanford University Press, 1998), 187, and Means without End: Notes on Politics, trans. Vincenzo Binetti and Cesare Casarino (Minneapolis: University of Minnesota Press, 2000), 16. For a corresponding approach, which stresses the continuing presence of sovereignty, though in a mutated form, see Michael Hardt and Antonio Negri, Empire (Cambridge, Mass.: Harvard University Press, 2000). 2 Agamben, Means, 112, 110. 3 Agamben, Means, 138. 4 Agamben, Homo Sacer, 106, 109. 5 Agamben, Homo Sacer, 106. 6 Carl Schmitt, Political Theology: Four Chapters on Sovereignty, trans. George Schwab (Cambridge, Mass.: mit Press, 1985). 7 Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1975), 269–302, 460–79, and Walter Benjamin, ‘‘Theses on the Philosophy 128

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of History,’’ in Illuminations, ed. and trans. Hannah Arendt (New York: Schocken Books, 1968), 253–64. 8 Agamben, Means, 5–6. 9 Agamben, Homo Sacer, 85, 90. 10 For a similar approach that links sovereignty with biopolitics, see Hardt and Negri, Empire, 67–204. 11 Agamben, Homo Sacer, 6, 181. 12 Agamben, Homo Sacer, 83, 147. 13 Agamben, Means, 6, 37. 14 Hannah Arendt, On Revolution (London: Penguin, 1990), 155–65, 183, 189–94; Between Past and Future (London: Penguin, 1977), 127, 157–65; and ‘‘Willing,’’ in The Life of the Mind (New York: Harvest, 1978). 15 Schmitt, Political Theology, 36–52. 16 Agamben, Homo Sacer, 84–85. 17 ‘‘The puissance absolue et perpétuelle that defines state power, is not founded—in the last instance—on political will but rather on naked life.’’ Agamben, Means, 5. 18 Agamben, Homo Sacer, 42, and Schmitt, Verfassungslehre (Berlin: Duncker und Humblot, 1989), 87–91. For Schmitt’s struggle with the problem of democratic legitimacy, see my ‘‘Carl Schmitt and the Three Moments of Democracy,’’ Cardozo Law Review 21, no. 5–6 (May 2000): 1525–65. 19 Hannah Arendt, ‘‘The Concept of History: Ancient and Modern,’’ Between Past and Future, 41–90. 20 Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 246–47, and Between Past and Future, 168–71. Quite interestingly, Schmitt too understood the sovereign constituent decision as analogous to a miracle. Political Theology, 37. 21 Take for example his critique and dismissal of the constituent power, which is also a negation of the paradigm of creation, according to which what ‘‘is’’ can neither be reduced to an antecedent, determining cause nor be explained in terms of a previous functional referent or representation but instead it constitutes a completely new signification, a genuine, ontological positing of new figures and institutions, a radical surging forth of otherness and di√erence. For the most ambitious and exemplary e√ort to think creation, time, and politics, see Cornelius Castoriadis, ‘‘The Social-Historical,’’ The Imaginary Institution of Society, trans. Kathleen Blamey (Cambridge, Mass.: mit Press, 1987), 167–220, and ‘‘Time and Creation,’’ World in Fragments: Writings on Politics, Society, Psychoanalysis, and the Imagination, ed. and trans. David Ames Curtis (Stanford: Stanford University Press), 374–401. the sovereign weaver

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22 Carl Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens (Berlin: Duncker und Humblot, 1993), 23–24. 23 Giorgio Agamben, Infancy and History: Essays on the Destruction of Experience, trans. Liz Heron (London: Verso, 1993), 91. 24 Agamben, Infancy and History, 100–105. 25 Michel Foucault, ‘‘Nietzsche, Genealogy, History,’’ The Foucault Reader, ed. Paul Rabinow (New York: Pantheon Books, 1984), 76–100, and The Archeology of Knowledge, trans. A. M. Sheridan Smith (New York: Pantheon, 1972), 191. For Agamben’s critique, see Homo Sacer, 12, 5–6. 26 Michel Foucault, The History of Sexuality, Volume 1: An Introduction, trans. Robert Hurley (New York: Vintage Books, 1990), 85–98, and Power/Knowledge: Selected Interviews and Other Writings, 1972–1977, ed. Colin Gordon (New York: Pantheon Books, 1980), 88–108. 27 Agamben, Means, 15–26. 28 Agamben, Homo Sacer, 126–35. 29 Clearly, if this is so, we are facing once again the specter of Hegel. The sovereign—like Geist itself—driven, almost determined by a rigid biopolitical logic, moves gradually, steadily, inexorably, through internal tensions, in a predetermined direction. It moves from potentiality to actuality, achieving higher levels of synthesis and reconciliation, and reaching toward the ineluctable realization of its ultimate telos: the camp. 30 Agamben, Means, 32, 33. 31 Agamben, Means, 6. 32 Agamben, Homo Sacer, 176. 33 Agamben, Homo Sacer, 9, and Means, 137. 34 Agamben, Homo Sacer, 121. 35 Agamben, Homo Sacer, 187. 36 Agamben, Homo Sacer, 173. 37 Agamben, Means, 8, 11, and Homo Sacer, 11, 187–88. 38 Agamben, Homo Sacer, 5. 39 Agamben, Homo Sacer, 188. 40 Agamben, Means, 139. 41 Agamben, Means, 33–35, and Homo Sacer, 11, 188. 42 Sometimes both versions seem to be accommodated under the general rubric of form-of-life. Giorgio Agamben, ‘‘Form-of-Life,’’ in Radical Thought in Italy: A Potential Politics, ed. Paolo Virno and Michael Hardt (Minneapolis: University of Minnesota Press, 1996), 151–58. 43 Agamben, Homo Sacer, 188. 130

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44 Agamben, Means, 12, 113. 45 Agamben, Means, 88. 46 Agamben, Means, 4. 47 For example, besides state power, which indicates a centralized and hierarchical instance of authority, command, and control separated from the political community and instituted in order to continuously guarantee and reproduce this separation, there are what Cornelius Castoriadis has called ‘‘explicit power’’ and ‘‘the ground-power of the collective anonymous,’’ or ‘‘the power of Outis.’’ Whereas the first refers to the existence of stable and proceduralized instances capable of formulating explicitly sanctionable injunctions, the second denotes the radical instituting social power, parts of which can be appropriated by collectivities in their struggle to constitute themselves into autonomous political communities (and this act of appropriation does not need to be conflated with the concept of state sovereignty). This appropriation signals the beginnings of a genuinely democratic and autonomous politics. (Cornelius Castoriadis, Philosophy, Politics, Autonomy: Essays in Political Philosophy, ed. and trans. David Ames Curtis [New York: Oxford University Press, 1991], 156–57, 158–74). Although the notion of the anonymous collective appeared for the first time in The Imaginary Institution of Society (369), it was subsequently developed in Castoriadis’s seminal essay ‘‘Power, Politics, Autonomy,’’ Philosophy, Politics, Autonomy, 143–74. For the distinction among state power, explicit power, the power of outis, and radical instituting power, see Cornelius Castoriadis, ‘‘Radical Imagination and the Social Instituting Imaginary,’’ The Castoriadis Reader, ed. and trans. David Ames Curtis (Oxford: Blackwell Publishers, 1997), 320–37; ‘‘The Imaginary: Creation in the Social Historical Domain,’’ World in Fragments, 3–18; and ‘‘Imagination, imaginaire, réflexion,’’ Fait et à faire: Les carrefours du labyrinthe, vol. 5 (Paris: Le Seuil, 1997), 227–81. I have discussed these distinctions in my ‘‘The Radical Instituting Power and Democratic Theory,’’ Journal of the Hellenic Diaspora 24, no. 1 (December 1998), and ‘‘The Politics of Autonomy and the Challenge of Deliberation: Cornelius Castoriadis contra Jürgen Habermas,’’ Thesis Eleven 64 (February 2001). 48 Agamben, Means, 41. 49 Agamben, Means, 41. 50 Agamben, Means, 41. 51 Agamben, Means, 41. 52 Agamben, Homo Sacer, 131. 53 Agamben, Means, 112. 54 ‘‘To think the extinction of the state without the fulfillment of the historical telos is as impossible as to think a fulfillment of history in which the empty form of the sovereign weaver

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state sovereignty would continue to exist. . . . Only a thought capable of thinking the end of the state and the end of history at once and the same time, and of mobilizing one against the other, is equal to this task.’’ Agamben, Means, 110–11. 55 Agamben, Means, 85, 134–35. 56 Agamben, Means, 114. 57 On the two ‘‘circumstances’’ or ‘‘facts’’ of justice, see A Treatise of Human Nature, introduced by Ernest C. Mossner (London: Penguin Books, 1984), 536–52. 58 I follow here Jean Cohen’s and Andrew Arato’s argument developed in their Civil Society and Political Theory (Cambridge, Mass.: mit Press, 1992), 158. 59 They might also represent, as Claude Lefort has argued, symbolic forms of political empowerment. Claude Lefort, ‘‘Politics and Human Rights,’’ in The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism, ed. John B. Thompson (Cambridge, Mass.: mit Press, 1986), 239–72. 60 Agamben, The Coming Community, 18. 61 Agamben, Means, 134. 62 For the distinction between the ethical, the moral, and the legal, see Jürgen Habermas, Justification and Application: Remarks on Discourse Ethics, trans. Ciaran P. Cronin (Cambridge, Mass.: mit Press, 1993), 1–18, and Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, Mass.: mit Press, 1996). 63 Giorgio Agamben, The Coming Community, trans. Michael Hardt (Minneapolis: University of Minnesota Press, 1993), 10–11. 64 Agamben, Means, 89. 65 In both cases, Agamben’s new politics abandons the normative values of justice, political autonomy, equality, and democratic legitimacy. They are dismissed rather hastily as anachronistic and obsolete, in the name of a vague, unpolitical, even pre-theoretical notion of the ‘‘happy life.’’ 66 Aristotle, Politics, trans. Ernest Baker and revised by R. F. Stalley (Oxford: Oxford University Press, 1995), Book 2, chaps. 1–2, pp. 39–41. 67 In The Republic, Socrates equates the guardians with shepherds and the auxiliaries with dogs. See, Plato, The Republic, trans. Paul Shorey (Cambridge, Mass.: Harvard University Press, 1994), 440d, 403. 68 Plato, The Statesman, trans. Harold N. Fowler (Cambridge, Mass.: Harvard University Press, 1995). 69 For the productive dimension of command in Plato, see Stanley Rosen, Plato’s Statesman: The Web of Politics (New Haven: Yale University Press, 1995), 4. 70 Seth Benardete, The Being of the Beautiful: Plato’s Theaetetus, Sophist, and Statesman

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(Chicago: University of Chicago Press, 1984), part III, p. 82. For a similar point, see Joseph Cropsey, Plato’s World: Man’s Place in the Cosmos (Chicago: University of Chicago Press, 1995), 116, and Rosen, Plato’s Statesman, 67–68, 74. 71 Michel Foucault, ‘‘ ‘Omnes et Singulatim’: Toward a Critique of Political Reason,’’ Power: Essential Works of Foucault, 1954–1984, vol. 3, ed. James D. Faubion (New York: New Press, 1997), 301. 72 Michel Foucault, ‘‘The Subject and Power,’’ Power: Essential Works of Foucault, 1954– 1984, 332. 73 Michel Foucault, ‘‘Governmentality,’’ Power: Essential Works of Foucault, 1954–1984, 219. 74 Foucault, ‘‘ ‘Omnes et Singulatim’: Toward a Critique of Political Reason,’’ 305. 75 Agamben, Homo Sacer, 143. 76 Rosen, Plato’s Statesman, 63, 102. 77 Rosen, Plato’s Statesman, 87, 98. 78 Rosen, Plato’s Statesman, 38. 79 Benardete, The Being of the Beautiful, part III, p. 83. By contrast, Joseph Cropsey disagrees with this assessment. He considers eugenics to remain a crucial aspect in Plato’s political theory as it continues to be one of the tasks of the ruling weaver. Cropsey, Plato’s World, 143. 80 Cornelius Castoriadis, Sur Le politique de Platon (Paris: Le Seuil, 1999), 63. 81 Arlene Saxonhouse, ‘‘The Philosopher and the Female in the Political Thought of Plato,’’ Political Theory 4, no. 2: 208. Also, see Rosen, Plato’s Statesman, 103, 105–6, 141. Saxonhouse underscores the implications resulting from the relationship between weaving and the female. After all, she correctly notes, weaving was a woman’s craft that took place in the obscurity of the private sphere. This aspect of weaving is extremely significant, as it alludes to an overcoming of the hegemonic understanding in classical times of politics as an exclusively masculine activity. 82 For example, Benardete interprets the production of cloaks as an indication that Plato understood politics as a protective and defensive science against the regularities and contingencies of social life. Benardete, The Being of the Beautiful, part III, p. 108. Stanley Rosen and Cropsey share this interpretation. Rosen, Plato’s Statesman, viii, 4, 87, 101–3, 116, 152, 172, and Cropsey, Plato’s World, 122– 23. The same line of interpretation is also adopted by John Scheid and Jesper Svenbro in their exemplary study The Craft of Zeus: Myths of Weaving and Fabric, trans. Carol Volk (Cambridge, Mass.: Harvard University Press, 1996), 24–25. 83 Plato, The Sophist, trans. Harold N. Fowler (Cambridge, Mass.: Harvard University Press, 1987).

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84 Here it should be noted that while in The Statesman the separation of the better from the worst antecedes weaving, in The Sophist it is both prior and part of the process of weaving. Rosen has suggested that there are in fact two models of weaving in Plato’s work and not one. Plato’s Statesman, 109–18. 85 For the notion of syncretism, see Vassilis Lambropoulos, ‘‘Syncretism as Mixture and as Method,’’ Journal of Modern Greek Studies 19: 221–35. 86 To understand the implications that the paradigm of weaving introduces in Plato’s political philosophy, it is useful to remember that in The Republic he rejected democracy precisely because it resembled a multicolored coat (The Republic, 557c–d). I thank Arlene Saxonhouse for alerting me to this argument in The Republic. 87 Cropsey, Plato’s World, 139. 88 Castoriadis, Sur Le politique de Platon, 39, 52, 75. 89 Rosen, Plato’s Statesman, 151, 185. 90 Rosen, Plato’s Statesman, 8. 91 Seth Benardete, The Argument of the Action: Essays on Greek Poetry and Philosophy, ed. Ronna Burger and Michael Davis (Chicago: University of Chicago Press, 2000), 373. 92 Schmitt, Verfassungslehre, 75–87. 93 Schmitt, Verfassungslehre, 79, and Emmanuel Sieyès, Qu’est-ce le Tiers état? (Geneva: Librairie Droz, 1970), 182–83. 94 However, Schmitt himself has acknowledged that a total break is conceivable only when the creation of a new constitution is accompanied by a change of the subject of the constituent power, as for example from the king to the people. In all the other cases, it remains a ‘‘constitutional minimum’’ that indicates a form of continuity (Schmitt, Verfassungslehre, 92). This point resembles and anticipates Derrida’s notion of the ‘‘minimal reminder.’’ See Jacques Derrida, Limited Inc. (Evanston, Ill.: Northwestern University Press, 1988), 202. Even Schmitt mentions the survival of a constitutional minimum within the constituent power. 95 For this point, see Arendt, On Revolution, 204–14, and ‘‘Willing,’’ 195–217; and Cornelius Castoriadis, Figures du pensable: Les carrefours du labyrinthe, vol. 6 (Paris: Le Seuil, 1999), 135. 96 Rosen, Plato’s Statesman, 182. 97 For an illuminating discussion of the significance of the laws in The Statesman, see Cropsey, Plato’s World, 129–34, and Rosen, Plato’s Statesman, 139–83. 98 Benardete, The Being of the Beautiful, part III, p. 142. 99 For this point see Rosen, Plato’s Statesman, 126.

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a n s e l m h av e r k a m p Translated from the German by Kirk Wetters

anagr ammatic s of violence The Benjaminian Ground of Homo Sacer Die Barbarei steckt im Begri√ der Kultur selbst. [Barbarism hides in the concept of culture itself.] —Walter Benjamin, Das Passagen-Werk

To put it directly and without delay: Violence is not performance in Benjamin’s ‘‘Critique of Violence.’’ To the contrary, Benjamin’s thesis maintains the inequivalence of the two, and this inequivalence is the constant motor for the depiction of this thesis. Even as ‘‘pure violence,’’ which Benjamin also calls (even if not synonymously) ‘‘divine violence,’’ violence is at best—if at all—pre-performative (or ‘‘a√ormative’’) violence.∞ Violence may be recognized, certainly, in its execution. Thus the tyrant of the baroque Trauerspiel needs the ‘‘gesture by which his will is carried out’’ (Geste der Vollstreckung) as a theatrical proof of his might. This is the simultaneous proof of his impotence: the powerlessness of his power. This is because his power participates naturally—by way of the natural phenomena that are subjected to it—in the violence that it brings about, in the violence by which it is brought to a derivative and circuitous ‘‘manifestation.’’≤ But—and this is the point—the manifestation of violence does not come about as the manifestation of itself and for itself alone, but rather as the manifestation of the one who makes it, partakes of it, and bends it to his will, shaping it ‘‘completely’’ (as Benjamin says in his Trauerspielbuch) according to his own image. This is the ‘‘bastardization’’ brought about by the violent culmination. Something that holds true as well, moreover, not only for the tyrannical ruler, but also in the best legal management of law—because even the most tyrannical misuse of power maintains itself within a legal framework, which it cannot, in its own best interest, violate. Law-giving, the act of positing the law, even if conceived as completely primordial, is shown by Benjamin to be inextricably bound up—in the very same act—with the maintenance of violence. (This is the Ver-waltung of Gewalt, Ver- in the sense of Ver-brauch and Ver-derben.) Law-giving takes part in this violence, ‘‘bastardizing’’ it by this very participation that disfigures (ver-zerrt) every possible act of law-giving. 135

And even when the divine source of law is invoked—cited—this bastardization always reduces it to the mediocrity of a human means and medium (Menschen-Mittel-Maß).≥ In spite of all historical interest, the logic of violence’s manifestation does not come to exhibit itself historically, but rather and to the contrary, it is formative of history: History is its result and not the other way around. Violence is thus not the precondition for history’s negotiations, its narrative wrap-ups and political revisions. It was not the ‘‘critique’’ in Benjamin’s ‘‘Critique of Violence’’ (which since the 1960s has typically experienced perfunctory and reductive readings) that made the manifestation of violence into the critical object of a logic of representation, but instead the anagrammatic foundation underlying this critique (which, alternately conceived, may be seen as the result of an archeology). Anagrammatic forms, o√ering themselves to critique as the site of an archeological excavation, are the central object of philological method in the Saussurean sense.∂ Benjamin produced and thematized anagrammatic structures at the same time as Saussure, even if he was unaware of the latter’s posthumously published lectures; and Saussure’s studies on the anagram in particular were still a long way o√. But anagrams were simply in the air: Benjamin’s anagrammatics come about, however, without his explicitly noting the specific importance of the accompanying methodological reflections thereby necessitated—Benjamin fails to note, namely, the influence of these reflections upon other, equally fundamental themes such as that of violence beyond its overwhelming modes of manifestation. The ‘‘Critique of Violence’’ is not only what it says and makes representable in the Trauerspielbuch; it also contains, as an anagrammatics of violence, a theory of the relationship of language and violence, and, consequently, like a poetics, additionally o√ers a philological method for cultureproducing as well as culture-destroying violences. Thesis (Hypothesis): Benjamin’s ‘‘Critique of Violence’’ does not contain a theory of performance (even though he naturally cannot do without participating in such a performative). Benjamin’s ‘‘Critique of Violence’’ contains a theory of latency (even though, and congenially enough, it does so only latently). And in Benjamin’s so doing, in the exposition of this theory, a theory of performance also lets itself be laid out at the same time: Every theory of performance cannot do otherwise than to presuppose a theory of latency. Benjamin’s critique of the manifestation of violence, including the critique of its mythical forms of manifestation in the mythologizing circulation of law-establishing and law-maintaining violence, establishes a theory 136 anselm haverkamp

of latency as the latency of violence. It does so in the most classical sense of the latin latere, of the ‘‘threat lurking in what is hidden,’’ which Vergil found anagrammatically inscribed in Rome’s foundational scene, in the name of Latium: The god Saturn loves (maluit) Rome out of the hiddenness of his hideaway (Latium, an anagram without remainder), and out of this love he allows Rome to be delivered from its threat, thanks to the privilege granted by its god, and transported into the foundational security of the Roman Law. What poses the hidden threat, however, is violence, barely restrained, tamed only with an anagrammatical summons by its divine name.∑ Supplement (Prosthesis): Benjamin’s theory of latency is ana-grammatic— something that fully emerges only in later texts that follow the ‘‘Critique of Violence’’ (notably in Agamben’s reading of it, when he comes to formulate his own ‘‘logic of sovereignty’’ in Homo Sacer). Violence is anagrammatic to the extent that Benjamin sees it as manifesting itself anagrammatically, against the grain of the syntactical order of things, appearing instead ‘‘mythically’’ as law-establishing and law-maintaining violence. This means that Benjamin’s ‘‘Critique of Violence’’ is not only anarchistic (which it is as well, something that connects it with a whole series of contemporary names of reference), it is in a stronger sense anagrammatical—as the working o√ of exactly that ambivalence by which anagrammaticality allows the arch¯e in the quality of ‘‘names’’ to produce ongoing e√ects, allowing them to perish grammato-logically, torn—precise to the letter—limb from limb. I do not thus mean to imply that anagrammaticality is the antidote to the latency of the ‘‘political theology’’ for the sake of which Hannah Arendt wanted to put the ‘‘Critique of Violence’’ under quarantine. Anagrammaticality is rather the invisibly operative link in every ‘‘theory’’ of latency, a link—not missing, only hidden—that tames the anarchic ‘‘pure violence’’ of violence’s annihilating power with the art of anagrammatic inscription. So as not to be forced into a radical historicization of Benjamin, reconstructively hedging him into an anarchistic text-milieu of the preperformative ‘‘a√ormative’’ (whether he may have flirted with it or not)—and further avoiding the artistic blunting produced by the ludism of deconstructive gestures (though sharp and pointed examples can be found; here I am not in any case speaking of Derrida, who does neither: neither plays nor suspends)—I cast myself into aspects that are productive for political thought. Particularly impressive in this regard is Giorgio Agamben’s Homo Sacer, which I take to be the most important of all of the books influenced by the ‘‘Critique of Violence’’ or produced in its wake. Similarly to my synopanagrammatics of violence

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sis of the debates begun by Derrida’s Force de loi, and in a likewise implicit manner—without articulating every detail—the following essay will take Agamben’s points of contact with Benjamin as its point of reference, and Agamben as Benjamin’s most important exponent: In the light of the homo sacer (a Roman legal paradigm and screen memory of mythic proportions), Benjamin’s intuitions come to reveal their anagrammatic ground. Anagrammaticality serves doubly as the model for the situation established in the ‘‘Critique of Violence’’; it is the model for the latency of inscription as well as its problematic mode of manifestation. And beyond this, it is also the model for the conflict within an ambivalence as well as of the working out of this ambivalence in the resulting inscription of what remains as events (Ereignisse, traumata). It is thus not just a minor or secondary aspect in Agamben’s book, his insight—something that had remained indefinitely suspended not only in the ‘‘Critique of Violence’’ but also in Freud’s Totem and Taboo—that ‘‘ambivalence’’ is not an originary concept but is itself a product of specific elaborations. It is the elaboration, for example, of what Benjamin called, from the perspective of these elaborations, a ‘‘bastardization’’: Ambivalence is the elaborated projection of an enlightened anthropology (that of the nineteenth century) that was no longer able to take a direct view of religious contents or relations.∏ Just as the numinous aura of the name is erased but still readable, decipherable, in its anagrammatical Aufhebung, so also ‘‘pure violence’’ remains to be ‘‘read.’’ It remains decipherable in the amalgam of the mythical forms of its manifestation—even if it is only as a ‘‘quasi-transcendental’’ form, even if the ‘‘divine’’ aura of its taking place has crept away, revealed as the e√ect of a citation like that of all divine names. Anagrammatics are grounded upon this situation. The fact that Benjamin calls ‘‘pure violence’’ ‘‘divine violence’’ is a result of the inordinately violent e√ects of its manifestation. This equation already comes to the same conclusion that will later be reached in Benjamin’s media-analyses: namely, that ‘‘shock’’ is the final ‘‘aura,’’ the last moment and the only moment of recognizability that is left to modernity. We tarry unwillingly in this mysterium tremendum, as Derrida’s reading of Kierkegaard has taught us.π Benjamin does not hold us within this mysterium—Derrida taken in as little as Arendt—but neither does he spare us from it, when we take up the ‘‘critique of violence.’’ Retrospectively, but accompanied by the shock of recognition, we are able to decipher what Benjamin calls ‘‘not quite possible’’ (‘‘not equally possible,’’ ‘‘not possible right away,’’ nicht gleich möglich). He calls it ‘‘not quite 138 anselm haverkamp

possible’’—‘‘nor however of immediate urgency’’ (‘‘nor however equally urgent,’’ noch auch gleich dringend)—in two di√erent and di√ering meanings of the word gleich, in its temporal and potential significances. It is ‘‘not quite possible nor of immediate urgency’’ to determine ‘‘when pure violence was actual in particular ‘historical’ cases,’’ as Benjamin writes (final page). ‘‘Pure’’ violence inscribes itself in its emergence, which is, however, unable to be distinguished from the pure violence of nature, because it inscribes itself unrecognizably and ineluctably, never to be deciphered with certainty, just as unknowable and unrefusable as the divine name, which, ever invariant, is inscribed in the everyday language of communication. Like Freud’s ‘‘slips,’’ pure violence comes out in ‘‘profane illuminations.’’ Even justice itself may be done unrecognized within it, but when it is done (if ever)— according to Benjamin’s friend Erich Auerbach in a free interpretation of Pascal (who is, it should not be forgotten, the point of departure for Derrida’s reading in Force de Loi)—it is done not on account of the law ‘‘but rather out of mercy.’’∫ Thus (virtually) nothing can be learned from history, but its moments of recognizability might be weighed. There is not much more that happens in the ‘‘Critique of Violence.’’ It only continues to address (in the last sentence) the ‘‘insignium and seal’’ of pure violence. In the obstinate refusal of the syndrome of the enlightened mythologization of the law, Benjamin reflects upon the seal and insignium as the guarantee of pure violence’s legibility. For him it cannot be a question of grace in the sense of Pascal, but violence must instead be given a thoroughly profane illumination and is thus distinguished with the inextinguishable predication of ‘‘divinity’’—by naming it ‘‘divine violence’’ and thus calling this violence by its human, all-too-human name: God’s or the gods’ violence. This results in the abyssal irony that provides the model for all unmarked irony, the anagrammatic presentation of all gods that have vanished or been done away with. Benjamin’s ‘‘messianism,’’ which has been rather overburdened in recent years, is the equally ironic—that is, false— name for the future of history, just as ‘‘divine violence’’ is for the shock of violence’s uncontrollably structural terms, in which there is no readability, no trace of justice, meaning, or future. Derrida, the Pascal reader, does not follow Benjamin in this Nietzschean gesture, and instead chooses to bring out the ironic and anagrammatical self-reference of Walter Benjamin to himself as the one who gives the material its representation (der Sach- ‘‘Walter’’ Benjamin). Derrida’s reading thus underlines the mode of the text as an auto-deconstructive self-theatricalization. His contrapuntal deconstructive anagrammatics of violence

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constriction of the concept of ‘‘critique’’ in the ‘‘Critique of Violence’’ highlights the fundamental and ground-laying significance of the paradigm of violence, while underlining an extremely specific delimitation of the concept of critique.Ω The Homo Sacer paradigm underscores the subterranean pact—not only an-archic but more precisely ana-grammatic—between violence and law. This is made possible by Agamben’s identification of the figure of ‘‘deposition’’ (Entsetzung): He identifies it not as the the pre-performative, reflexively oriented, (de-)divination (Ver-göttlichung) of the trascendentalized or transcendentalizable order of violence, but as the annunciation of ‘‘something new’’ in this place—a place that has been the site of annihilating oversimplifications (enough of which are still hanging around, ever since the attempt was made to declare Benjamin’s ‘‘Critique’’ to be a prophecy of Auschwitz). Benjamin in fact speaks of this ‘‘novelty,’’ even if he means something di√erent by it than what has in the meantime interested Marcuse, who, after forty years, was the first one ready to use this text.∞≠ Agamben, however, like Benjamin, has something else in mind than the revolution, a revolution that was—and will be—unable to escape the mythical circulation of violence. To the contrary, Agamben means the zone in which the ‘‘actual’’ addressee of all violence is laid bare—the addressee who is given its contemporary concept in ‘‘bare life,’’ a concept that Benjamin also joined in attacking to the very end. According to Benjamin’s incisive critique, the concept of ‘‘bare life’’ itself continually participates, even in its very gesture, in the execution of violence. Fundamental here is the fact that ‘‘bare life,’’ just like the ambivalence to which it is indebted, is the result of a retrospective naming: It is nothing to which Dasein would ever be able to experience its bare reduction. That would have been Heidegger’s biologistic self-misunderstanding of the concept of Dasein (a misunderstanding that Hannah Arendt sought to alleviate through her emphasis on the importance of labor for Dasein).∞∞ For Agamben ‘‘bare life’’ is ‘‘what remains’’ (quel che resta) of the state of exception. ‘‘Bare life’’ is what remains of the unlimited application, not of the law, but of its own suspension inscribed within it.∞≤ Benjamin’s critique in the ‘‘Critique of Violence’’ takes as its object the ‘‘origin’’ (in precisely the same sense as in The Origin of the German Tragic Drama) of the ‘‘concept of the political.’’ This is, however, not the concept as it was meant by Carl Schmitt (the source of Arendt’s aggravation), but rather, and to the contrary, can be traced back to

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something prior to the friend-enemy constellation. Benjamin’s ‘‘concept of the political’’ goes against the naturalistic hypostasization that comes out of Schmitt’s misunderstanding of Hobbes: Benjamin proposes an origin out of the latency of violence. The extreme representatives of this originary constellation are, already in Benjamin, ‘‘divine’’—rather than ‘‘pure’’—violence and ‘‘bare life’’ (rather than the Dasein contested in it).∞≥ Derrida, however, underlines that it is the mythical quality of lawestablishing violence—the quality that allows it to generate myths in its wake—that in the end ‘‘bastardizes pure divine violence and law.’’∞∂ For Derrida the auto-deconstructive enigma of Benjamin’s essay persists in the gesture of the call to arms by which Benjamin mimes law’s ricorso. He rehearses it just as one rehearses the insurrection: ‘‘always anew,’’ as he writes in his closing words. The paradoxicality of this gesture is misleading relative to that which directly preceded it. That is, it is misleading with regard to the figuration of the mythical (as Vico would say), a figuration that Benjamin has just traced according to the ‘‘eternal forms’’ of its manifestation—which means the forms of ‘‘bastardization’’ through mixed metaphors (which traditionally tend, already in Quintilian’s aversion to them, toward the monstrosity, delusion, and chimera).∞∑ The biological metaphorics of ‘‘bastardization,’’ a part of the ‘‘bare life’’ that Benjamin emphatically avoids, contain the final trend of such a miscegenation, against which Benjamin o√ers defense: namely that of the fixation of bare life in scientific terminology. This point is decidedly reinforced as soon as Benjamin’s rather loaded examples are unpacked. Both the story of Niobe as well as of the company of the Korah (Rotte Korah) are examples of the mixing of ‘‘pure violence’’ with mythical violence, which Benjamin cites for the sake of the vain possibility of violence’s demythologization—and cites it more precisely (even though this is not explicitly marked) according to the contemporary state of its demythologization, that of Hermann Cohen’s neo-Kantianism in Religion of Reason (as I have shown elsewhere) and that of the anthropological critique of myth in Karl Bernhard Stark’s epoch-making study Niobe and the Niobites (which influenced Kerenyi’s concept of myth). Both examples show how the natural form of the apparition of pure violence is transformed into divine violence by subsequent mythological elaboration, thereby making it ‘‘identical with all legal violence.’’∞∏ Benjamin’s apparently greater reliance than the neo-Kantian Enlightenment philosophy on Ovid’s transformative work on the Niobe-myth will become the occasion of infinite analyses in ‘‘Fate and

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Character,’’ as well as finally in the distinction between tragedy and Trauerspiel.∞π In every case bloodshed is ‘‘the symbol of bare life.’’∞∫ Blood brings to expression the mythical compulsion toward the representation of violence’s manifestion in law, a law in which ‘‘the human being’’ is collapsed ‘‘with bare human life’’—something that is for Benjamin to be avoided ‘‘at all costs.’’∞Ω As the figure of the ancient Roman homo sacer is able to show, the zone of incarceration, isolation, and compartmentalization is the zone of the laying bare of sheer, minimal, biological life, as well as the biopolitical exploitation thereby supported. Agamben thus points out a latency (the homo sacer is just its screen memory) within the legal practice, going back to the very beginnings of Roman law, lying in every caesura in the cycle of violence’s mythical manifestations. In these interruptions a zone is created that is accessible to manipulation. This mode of intervention found its most terrifying form in the state of exception of the concentration camps, and it has since become omnipresent in refugee and detention camps. The most recent methods by which medicine gains jurisdiction over death—once again not without the groundwork having been laid by National Socialism—also achieve a generalizability of bare life that would have been previously unthinkable. This generality had been known for a long time in the legal administration of the carrying out of punishment, but this was only the prelude (publicly met with nothing more than a shrug of the shoulders), the logic of whose further genesis Foucault has made plausible in Discipline and Punish.≤≠ It has to do with a certain deficit. This is something that is meanwhile becoming clearer, not so much in opposition to Benjamin but beyond his own horizons (latent within his own time and before the threshold, still unreadable at the end of the First World War). This deficit has been made comprehensible, given a model through Derrida’s and Agamben’s opposition to Schmitt and Heidegger. Attuned to the biologistic mythologemes to which Benjamin was in his time hardly yet able to attend, the ‘‘bare life’’ against which he sought to defend has become the site of a critique that belongs to the ‘‘Critique of Violence’’ that Benjamin first traced. It is a critique of what Derrida has described as a trade secret of a ‘‘European responsibility’’—which has, however, long since ceased to be a merely European secret: It trades itself worldwide as the quintessence of democratic achievements, as the height of human possibilities in terms of law and justice.

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notes All translations into English in this essay are by Kirk Wetters. 1 Werner Hamacher, ‘‘A√ormative, Strike,’’ Cardozo Law Review 13 (1991): 1133–57. Cf. Anselm Haverkamp, Gewalt und Gerechtigkeit (Frankfurt am Main: Suhrkamp, 1994), 50 n. 63. 2 Walter Benjamin, Ursprung des deutschen Trauerspiels (1928), in Gesammelte Schriften, vol. 1 (Frankfurt: 1974), 249. See especially the section entitled ‘‘Theory of Sovereignty’’ and following, 245–53. 3 Walter Benjamin, Zur Kritik der Gewalt (1921), in Gesammelte Schriften, vol. 2 (Frankfurt am Main: Suhrkamp, 1972). 4 See exemplarily Giorgio Agamben, ‘‘Corn: From Anatomy to Poetics’’ (1996), The End of the Poem (Stanford: Stanford University Press, 1999), 23–42. 5 Frederick Ahl, ‘‘Ars est caelare artem (Art in Puns and Anagrams Engraved),’’ in On Puns: The Foundation of Letters, ed. Jonathan Culler (Oxford: Blackwell, 1988). See Anselm Haverkamp, Figura cryptica: Theorie der literarischen Latenz (Frankfurt am Main: Suhrkamp, 2002). 6 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Stanford: Stanford University Press, 1998), 75–80. 7 Jacques Derrida, Donner la mort (1992), final version (Paris: Galilée, 1999). See Mariele Nientied, Kierkegaard und Wittgenstein: ‘Hineintäuschen in das Wahre’ (Berlin: De Gruyter, 2003), 327√. 8 Erich Auerbach, ‘‘Über Pascals politische Theorie’’ (1957), in Gesammelte Aufsätze zur romanischen Philologie (Bern: Francke, 1967), 207. See also, though independent from Auerbach, Lutz Ellrich: ‘‘Zu einer pragmatischen Theorie der Rechtsgebung bei Montaigne und Pascal,’’ Archiv für Rechts- und Sozialphilosophie 74 (1988): 53. 9 See Rodolphe Gasché, ‘‘On Critique, Hypercriticism, and Deconstruction: The Case of Benjamin,’’ and Anselm Haverkamp, ‘‘How to Take It (and Do the Right Thing): Violence and the Mournful Mind in Benjamin’s Critique of Violence,’’ both in Cardozo Law Review 13 (1991). 10 Walter Benjamin, Zur Kritik der Gewalt und andere Aufsätze, with an afterword by Herbert Marcuse (Frankfurt am Main: Suhrkamp, 1965), 99. 11 See Hannah Arendt, The Human Condition (Chicago: University of Chicago Press 1958). 12 ‘‘What remains’’ is the leitmotiv of Agamben’s titles following Homo Sacre: Quel che resta di Auschwitz: L’archivio e il testimone (Homo Sacer III) (Turin: Bollati Boringhieri, 1998). Published in English minus the Heideggerian Hölderlin-allusion to ‘‘Was

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bleibet aber stiften die Dichter’’ (‘‘What remains the poets establish’’): Remnants of Auschwitz: The Witness and the Archive, trans. Daniel Heller-Roazen (New York: Zone Books, 1999). As well as: Il tempo che resta: Un commento alla Lettera ai Romani (Turin: Bollati Boringhieri, 2000). 13 The early ‘‘jargon of authenticity,’’ which Benjamin disparages along with ‘‘bare life,’’ even a√ects the ‘‘pure means’’ that the ‘‘Critique of Violence’’ takes up, giving them a transcendental turn. It was actually the young Plessner who, in the same year 1921 (but certainly hardly known to Benjamin), first made this concept the basis of a programmatic declaration, ‘‘Political Upbringing in Germany.’’ Here for the first time, a ‘‘politics of pure means’’ was espoused against a ‘‘politics of threat’’—that is, of latency and of the latent public violence in postwar Germany of the early 1920s. Hellmut Plessner, ‘‘Politische Erziehung in Deutschland,’’ in Die Zukunft 115, ed. Maximilian Harden (Berlin: Erich Reiss, 1921), 158. (I thank Christoph Menke for this tip.) 14 Jacques Derrida, ‘‘Force de loi / The Force of Law,’’ trans. Mary Quantance, Cardozo Law Review 11 (1990): 1033 √. Benjamin, ‘‘Kritik der Gewalt,’’ 203. See also Bettine Menke, ‘‘Benjamin vor dem Gesetz: Die Kritik der Gewalt in der Lektüre Derridas,’’ in Haverkamp, Gewalt und Gerechtigkeit, 217–75. 15 Cf. exemplarily Paul de Man, ‘‘Epistemology of Metaphor’’ (1979), in Aesthetic Ideology (Minneapolis: University of Minnesota Press, 1996), 41. The loci classici of this rhetorical motif are Quintilian and Augustin, as well as, at the conclusion of this series, de Man’s reading of Locke. 16 Benjamin, Zur Kritik, 199. 17 See for example Giorgio Agamben, ‘‘Walter Benjamin and the Demonic’’ (1982), in Potentialities, ed. and trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1999), 152. 18 Benjamin, Zur Kritik, 199. 19 Benjamin, Zur Kritik, 201. 20 See Anselm Haverkamp and Cornelia Vismann, ‘‘Habeas Corpus: The Law’s Desire to Have the Body,’’ in Violence, Identity, Self-Determination, ed. Hent de Vries and Samuel Weber (Stanford: Stanford University Press, 1997), 223–35, 233. Cited at Homo Sacer, 124.

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spacing a s the shared Heraclitus, Pindar, Agamben Proper names do no more, at least initially, than mark out a space of concern. Here, two of the oldest and most richly suggestive connotative proper names within the tradition of philosophical and legal thinking can be taken as defining a domain of activity, one in which elements of the work of Giorgio Agamben can be provisionally situated.∞ And yet, and this will be true of any domain, it is both constituted and maintained by a productive conflict. (Productive in the precise sense that were the conflict to be brought to an end, then what was maintained—the product—would have been eliminated in the process. The product is the maintaining.) The domain of the proper name, the domain opened up by its reiteration, and as such held in place by the continuity of its citation, is the conflict concerning the meaning that it is taken to establish. What Heraclitus and Pindar mean cannot be disassociated from the conflict concerning that meaning.≤ The conflict of interpretation has to do with the ontology of names, not with the relativity of meaning. The question, and it is the question that can be taken as permeating all that follows, is what is involved in allowing for the conflict to be maintained. In the end the argument concerning conflict and ontology— understood as yielding a philosophical formulation of the political—will hinge upon this allowing.≥

Opening A contemporary preoccupation with Plato’s Timaeus has brought to the fore a logic of production that is bound to the discussion in the dialogue of ∂ That production can be reformulated in terms of what ‘‘chora’’ (xvra). ´ could be described as the specific logic of chora. The argument is straightforward. The production of form can neither be marked by, let alone have the form of, that which gave rise to its inception. If this were not the case, then a regress of production would have to occur. Each inscription of an origin would itself give rise to a question of its origin. The logic of chora means that the nature of the distinction between production and what is 145

produced must be more than opposites. And yet, while complicated, what is at work here is the necessary impossibility of the inscription—in whatever form—of the founding moment within that which it founds. If what is at stake is the formation of law, then it cannot be that it is simple lawlessness that is outside and thus constitutive. It is rather that law’s production designates a state of violence that is not law’s absence but a state of original indi√erence. The question that has to endure is what occurs if this site of indi√erence—not indi√erence as such, but the place at which it can be situated—comes to be inscribed within the activity, and therefore the history, of law. Once this site is present, then what is held in place is, as a consequence, a radically di√erent conception both of production and then, by extension, of the ontological status of what has been produced. Allowing for the presence of this originating site cannot be accounted for as though all that was present was either an addition, or that which ornamented an already determined fixed presence. Once present within law, the site of indi√erence may be understood as that constitutive element that holds law in place. Moreover, it is present within the history of law as a potential whose actualization may be what causes law to di√erentiate itself from a classical tradition and take on a modern form. While this entails a conception of change that locates change as internal to law—and thus as flowing from its constitution as a complex—this is more than the Leibnizian claim that the principle of change is always internal.∑ What is at work is more sustained. There are two elements that need to be noted. The first is that rather than involving the logic of chora, which yields a site of indifference that is always ‘‘external’’ and thus which has to be a ‘‘third genre,’’ the inscription of the originating site becomes foundational. There is neither site, nor place, nor genre that is prior to nomos. (There is no ‘‘before the law,’’ other than the position in which the temporal priority of the ‘‘before’’ is replaced by a spatial one. As such, being before the law defines the situation of only ever being placed in relation to the law, a defining relation in which the definition is human sociality itself.)∏ The second is that ontological considerations come to be central. While its direction di√ers slightly, it should not be considered remarkable that Agamben takes up the distinction between potential and actual being as forming an integral part of his general argumentation.π As part of the engagement that will take place here, a reformulation of potential will need to be developed. As will be seen, it is a conception of potential necessitating what can be described as the ‘‘already-present’’ status of nomos. (Attributing this status to nomos pro146 andrew benjamin

vides the countermeasure to the preoccupation with an originary founding violence.)∫ One way of opening up some of the elements proper to the work of Giorgio Agamben is to situate his concern with sovereignty and law in relation to the setup staged by the logic of chora. If there is a challenge to such a conception of production and with it the account of the inception of law—not legality but ‘‘law’’ as a translation of nomosΩ —then it resides in Agamben’s complex interpretation of sovereignty and thus his specific discussion of modernity in terms of the relationship between sovereignty and the homo sacer. Part of that challenge involves his argument that nomos inscribes the state of exception as constitutive of any theory of sovereignty. While there will be a particularly modern form of sovereignty and therefore a possibility to write the history of sovereignty, it remains the case that another logic of production will have been found.∞≠ And yet even here a further cautionary move is necessary. Rather than simply reiterate the historical and philosophical account of the strategic role of the homo sacer within the history of thought, a di√erent approach is needed in order to bring out other elements that have to be connected to a historical sketch of nomos. Instead of simply accepting the account of nomos as it is presented in Agamben’s work, a detour via Heraclitus will be undertaken. What the detour will allow is a nuancing of the conception of nomos by the introduction of the ‘‘share’’ and thus the incorporation of the distinction between the public and the private into this further engagement with nomos. Part of the argument is that once attention is paid to the way in which nomos is articulated within Heraclitus and also within Pindar fragments 169a and 215a it is clear that the term is inextricably bound up with the concept of commonality. Moreover, commonality needs to be understood as a repositioning of the distinction between the public and the private. What this means is that there cannot be a concern with nomos tout court, as though other elements were not involved. In sum, what has to be shown is that nomos, and this will be true despite the texts in which the term is deployed, has a more complex economy than simply raising questions to do with sovereignty. Emphasizing nomos is not simply a way of approaching a central element of Agamben’s work. There is a more decisive reason. Agamben is concerned to develop a philosophical understanding of the present and thus to develop philosophical thinking on the nature of the time in which ‘‘we are . . . living.’’ Central to that task is thinking through the term nomos. There is an even more decisive reason that has to do with how, according to Agamben, spacing as the shared

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the modern version of nomos has been formed. He argues in Homo Sacer that the concentration camp not only works to define the present but more emphatically that the camp also defines the contemporary political space. He argues the following in relation to the camps: ‘‘What is a camp? What is its juridical-political structure that such events could take place there? This will lead us to regard the camp not as a historicized fact and an anomaly belonging to the past (even if still verifiable) but in some way as the hidden matrix and nomos of the political space in which we are still living’’ (167). What this means is that for Agamben the term nomos has come to acquire a greater significance than a marking out of the space or the site of law. Pursuing some of the detail of the history of nomos becomes even more important given that, in the above formulation, the nomos of the modern is bound up with the camp as the locus of human definition. Part of the contention here—a contention that will allow some type of encounter with Agamben’s thought to take place—is that at its inception nomos brings with it determinations that complicate its history. The history of nomos reveals the term never to have had a univocal determination. Not only is that history one that has to admit of complications; the presence of such complications will allow for the encounter with Agamben’s work. Moreover, in outlining another history of nomos it will be seen that the legacy that is provided by Greek philosophy is not to be found in its containing a potential that is yet to be realized or in its determining the nature of thinking that either does take place, or should take place, today. At its most stark the legacy is that the necessary equivocations concerning nomos mean that the distinction between the democratic and the autocratic is a potential within social formations in virtue of being social formations. The fact that a social formation can move from one positioning to another may have to do with the fact that both possibilities are already inscribed in commonality as the very condition for human collectivity.

Heraclitus Three fragments provide Heraclitus’s sustained treatment of nomos: 33, 44, 114. In addition, fragment 113 provides the context within which that treatment has to be interpreted.∞∞ In this context 114 can be taken as providing the frame of reference through which the other two are to be interpreted. The justification for the move is that what 114 brings into play is not only the centrality of nomos but a demonstration that nomos is already interarticulated 148 andrew benjamin

with the di√erent formulations of commonality that have played a significant role in other fragments. Fragment 1 defines the logos as that which orders thought. It is not just that what there is takes place katà tòn lógon; it is also the case that thinking will uncover the ordering principle proper to what there is. What is indicated thereby is how all things are to be thought, namely ‘‘according to their nature’’ (katà fúsin) (112). Once both these positions can be assumed, then thinking or understanding needs the context provided for them by fragments 33, 44, and 113 since they indicate how thought is itself to be understood.∞≤ This context is supplied by fragment 113. The claim of 113 is that junón e¯ sti pãsi tò fronéein, ‘‘thinking is shared by all.’’ What this means is that thinking or understanding what there is is fundamentally and inextricably bound up with the ‘‘shared.’’ Thinking and the shared, and hence logos, cannot be separated. They are interarticulated from the start. What this founding interarticulation entails is that any discussion of thinking is already a discussion of the shared. Commonality and thinking are, ab initio, interconnected. In 114 Heraclitus joins póliw and nómow (hereafter nomos), defining their relation in terms of the shared or the common. While 114 demands detailed consideration, the interconnection and the analogy allowing it to be presented are clear. The part of the fragment central to this concern reads as follows: jùn nóŒ légontaw i¯sxurízesyai xrh` t™ jun™ pántvn, o¡kvsper nómŒ póliw, kaì polu¯ i¯sxurotérvw. Speaking with understanding they must hold to what is shared by all, as a city holds to its law. In regard to this fragment the contention is that the first part not only links understanding and the logos but also more significantly that the share determines the link. Speaking ‘‘with understanding’’ (and speaking must be seen as involving a domain of action that moves beyond strict or literal speaking) occurs in relation to the recognition that things take place katà tòn lógon since that is what is ‘‘shared by all.’’ The joining of understanding and speaking captures that recognition.∞≥ At this point the analogy is staged. The same relation pertains between nomos and polis as that which characterizes the relation between understanding and speaking. What defines the relation in both instances is that nomos takes the place of that which is ‘‘shared by spacing as the shared

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all’’ (t™ jun™ pántvn). As has already been indicated, this formulation is also present in 113, where Heraclitus claims that thinking (tò fronéein) is ‘‘shared by all.’’ Prior to pursuing the content of the analogy, it is important that its structure be carefully delineated. ‘‘To speak with understanding’’ necessitates ‘‘holding fast to’’ that which is shared. The translation of i¯sxurízesyai by ‘‘holding fast to’’ is Kahn’s formulation. Marcovich translates the term as ‘‘rely on,’’ while Conche translates it as ‘‘tirent leur force.’’ Whereas each translation di√ers in terms of emphasis, what remains the case is that in every instance a strict connection is established between ‘‘speaking with understanding’’ and that which is ‘‘shared by all.’’ Again, the former is defined in relation to the latter. This is not as simple a claim as that thinking is what is done by the all, and that therefore there is an implicit conception of the human within the fragments. There is no simple identification of being human with thinking. Thinking is not explicable in terms of its being a cognitive activity. Or at least it is not straightforwardly a cognitive activity. Thinking opens up a relation to both the public realm and tradition. The decisive fragment here is 89: ‘‘The world of the waking is one and shared (¡ena kaì koinòn) but the sleeping turn aside each into his private (ƒidion) world.’’ While the fragment warrants a much longer commentary, it is su≈cient to note that what is significant is that the world is defined as what is shared, and here Plutarch has substituted his term koinvnía for the Heraclitean term junón, and what is shared is the public realm. (From the very start, therefore, the shared or the common is linked to an original spacing.) The move from simple cognition to the interconnection of the cognitive and the social marks the departure from an anthropocentric conception of the shared or the common. In other words, it is a departure from a conception of thinking that is defined in relation to human activity. (Activity of this nature becomes a consequence of that which occasions it.) Consistent with this move is the impossibility of reducing the common or the shared to an abstraction from that which is common to all thinkers; i.e., it is not an abstraction from all individuals. All of these elements define the realm of the individual. In contrast to the public world is the world of the individual and by extension any possible abstraction from the individual or the attribution of a putatively shared, and by definition abstract, conception of commonality to all individuals. Fundamental here is the nature of the contrast. Public and private do not constitute a simple opposition. Sleep provides a metaphor through which this position is expressed. Sleep designates not just the realm 150

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of the individual; more significantly it captures the enclosure of the individual in his or her private world, as though the individual turns from the world—from the shared—in sleep. The contrast staged in the fragment—it is a contrast that determines how the shared is to be understood—is therefore between the public and shared, on the one hand, and the individual and private on the other. The move from the latter to the former does not take place via a generalization of one into the other or the identification of abstract qualities that allow one to be incorporated in the other. The public domain is the domain of the shared. What this means, in the case of Heraclitus, is that the shared brings with it a complex opposition between the public and the private. That opposition determines how the relationship between the share and nomos, as formulated in 114, is to be understood. Given this setting, it is possible to take up the concerns of fragment 114. What ‘‘speaking with understanding’’ means is not the expression of private wisdom but those utterances that accord with the nature of things. The position from which speaking takes place is the realm of the public. It is thus that what is said—said publicly—can be judged. And what is judged is the extent to which what is said or done demonstrates that understanding. The shared functions as that which is presupposed in an utterance’s being public as well as providing the ground for any such judgment. While judgments accord with the nature of things, their possibility as judgments is the shared. The question of the comparison between speaking and acting on the one hand and the nomos on the other becomes even more acute given that the common or the shared provides the possibility for judgment and thus activity in the public domain. What does it mean to say that this situation is comparable to the way the polis holds to its nomos? Prior to answering that question the concerns of fragments 44 and 33 need to be identified since they provide the material necessary to understand the comparison. The fragments read as follows: The people (tòn d˜hmon) must fight for the law (upèr ˘ to˜u nómou) as for their city wall. It is law to obey the will of one (nómow kaì boulœ˜ peíyesyai e˘ nów). Fragment 33 deploys the structure of comparison, while 44 defines nomos in relation to the ‘‘one.’’ Again, it is clear that what is being staged in both of these fragments is a conception of commonality that exists in complete di√erentiation from the private and the idiosyncratic. While there may be a spacing as the shared

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direct reference to the city-state of Ephesus in the reference in 44 to the city wall (teíxeow), what is interesting are the possibilities that the ‘‘wall’’ opens up. Put at its most emphatic, it can be argued that the defense of the city wall is a defense of what it encloses. What it enclosed is the public sphere. The public is not pure externality as opposed to pure internality. Such an opposition would misunderstand the complex way in which public and private are juxtaposed in the fragments. The defense of the wall becomes the defense of the locus of judgment. Maintaining nomos is maintaining that which is the expression of judgment. Whether that expression has a formal character, as would be inscribed in either a constitution or a formulation of law, or whether it is linked to a more straightforward conception of judgment understood as normativity and thus as a translation of frónhsiw, is at this stage not the point. What matters is that the defense of the domain of judgment is comparable to a defense of the actualization of judgment, its conditions and formulations. What this raises is of course the question concerning the nature of that nomos. Fragments 113 and 44 define nomos in terms of a comparison, while 33 opens up the possibility of identifying with greater precision the nature of nomos. The latter fragment defines nomos as obeying the ‘‘council of one.’’ What is meant by this specific formulation is the question that has to be addressed. While it is possible to identify the ‘‘one’’ with one ruler, it is equally possible to identify the one with one ruling principle. As such the politics of the fragment are neither straightforwardly autocratic nor unequivocally democratic. It would be too quick, however, to look for the political expression of the fragment in terms of the possible ambivalence. To the extent that it brings a political element into play, it inheres in the ontological determinations at work within it. And what this entails is that a di√erent type of interpretation is needed. The ‘‘one’’ appears a number of times in the fragments. The most important occurrence is in 50, in which the response to the logos is to agree that ‘‘all things are one’’ (∫en pánta eßinai). While the ‘‘council of one’’ allows for other possibilities, it also allows for an interpretation in which ‘‘one’’ can be replaced by ‘‘the all.’’ What such a move opens up is a definition of nomos as bound up with the understanding that things take place according to principles. This position is reiterated throughout the fragments. It is there, for example, in the claim that things are to be ‘‘perceived according to their nature’’ (katà fúsin), or that ‘‘all things take place in accordance with the

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logos’’ (katà tòn lógon), or that the ‘‘all comes to pass in accordance with conflict’’ (kat´ ƒerin). What is involved here is a definition of the ‘‘all’’ in relation to a series of principles. Each term defines a sense of propriety. Externality delimits a sense of the proper as linked to the common. Equally, however, the common is there as the site of judgment understood as the domain of the public. Public being is as much common as the principles defining the nature of the things. In sum, this is the argument of 33 and 44 taken together. It is in terms of this interpretation that it is necessary to return to 114. It can now be argued that a city ‘‘holding to its nomos’’ involves a defense of the city wall understood as a defense of the location of judgment—the original spacing defining the public realm. Equally it involves a defense of the common against the idiosyncratic on the one hand, while on the other, implicitly at least, it has to resist a conception of commonality based on an abstraction from the individual. Part of the way in which the limit of abstraction can be understood is to recognize that the term individual is itself already an abstraction. In other words ‘‘commonality’’ cannot be abstracted from individuals—or be taken as an abstract quality of individuals—precisely because the term individual is itself abstract. As a term it has no specificity outside a further act of individuation in which the individual becomes that person. Refusing abstraction means allowing the fragments to have developed a conception of commonality that avoids any form of oscillation between the individual and the collective. As such it escapes the hold of what can be described as an anthropocentric view of commonality. Rather than taking either the abstract individual or the abstract collective as the ground of commonality, commonality becomes the share of a space. It is a space disclosed by the city wall. There is a twofold move occurring within the claim that a holding to the common is analogous to holding to the city wall. There is the move against the anthropocentric conception of the common. The second is that once the analysis is staged in terms of an allowing then the city wall becomes that which allows; it defines a space by yielding a space. The importance of the wall should not be overlooked. Walls, be they physically present or simply there as a line on a map, allow. That allowing, however, is far from straightforward. Walls delimit spaces. They occasion spacing and are the occasion of (and for) spacing. Equally, however, the wall or the frontier restricts, discriminates, and structures inside and outside in terms of the relation of

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self and other. Walls mark the ineliminability of alterity. Given that alterity is ineliminable—and thus has to be maintained—the question of maintaining alterity can be understood as the question of the di√erent ways of ‘‘holding’’ to the wall. Equally, if the analogy between wall and nomos is itself allowed, then the question of alterity will always concern how the content of nomos is to be understood and thus how and in what form it is to be maintained. As will be seen in the move to Pindar, there is no reason to think that a disclosed space is automatically a democratic space. Indeed, the argument has to be subtler than would be evidenced by such an assertion. It is vital that the procedural steps of the argument be stated. First, nomos is essential for human activity. Second, there can be no radical distinction between nomos and life. Third, what allows for the maintenance of nomos is the space disclosed by the city wall; what is disclosed is the space of judgment, the public realm. Fourth, walls necessarily involve relations of inside and outside and thus the relation between same and other. Fifth, what this disclosure entails is that the inescapability of questions of justice—which involve nothing more or less than a negotiation with (and within) this original setting— means that there is nothing other than the relationship between nomos and life. Even if that results in the position that justice may not have been done, it remains the case that justice becomes the way of understanding how those negotiations are to be understood.∞∂ Finally, these elements can be brought together once it is recognized that they define commonality. What there is in common is the space disclosed by the wall. What is shared is the inescapability of self/other relations. Holding to the wall, and holding to nomos, means nothing more or less than holding to the commonly disclosed space of judgment, i.e., the public realm.

Pindar Fragments 169a, 215a Pindar figures in Homo Sacer. Pindar also figures in Schmitt’s Der Nomos der Erde.∞∑ Here, rather than a direct concern with the way he figures, almost as a prelude to that concern, it is essential to pursue the presentation of nomos through two fragments. While it remains the case that 169a is cited by both Agamben and Schmitt, it is not possible to let that fragment function as an end in itself within the context of Pindar’s work as a whole.∞∏ Hence the question is what would have happened were fragment 215a also able to figure. The significant elements of each fragment read as follows:

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169a Nómow O˘ pántvn basileúw ynatvn ˜ te kaì ayanátvn ¯ a ƒ gei dikaivn ˜ tò biaiótaton upertátai ˘ xeirí. tekmaíromai ƒergoisin ∞Hrakléow. Law, the king of all, Of mortals and immortals, guides them as it justifies the utmost violence with a sovereign hand. I bring as a witness the deeds of Herakles. 215a a ƒ lla d´ a ƒ lloisin nómima, sfetéran d´ a¯ine˜i díkan andr ¯ vn ˜ ∫ekastow. Customs vary among men, and each man Praises his own way.∞π The contrast is between the singular designation of nomos as the ‘‘king of all’’ in 169a, and the plural formulation in 215a. In regard to 215a, it is precisely the inscription of a founding plurality that would be the necessary guide to any interpretation of the fragment. (As will be seen, Herodotus cites Pindar to this end [3.38.4].) What then of the di√erences staged by the fragments? As a beginning it should be noted that there is a way of turning the relativity of 215a into a formulation that accords with that interpretation of 169a, which attributes centrality to the gods. The argument would be that the reference to Apollo that occurs at the end of the fragment would allow a distinction to be drawn between human relativity on the one hand and, on the other, following the direction laid down by a god and thus following those inspired by a god. Relativity would have been excluded in the name of the singularity of divine leadership, or if not leadership per se then at least in the name of directions coming from a divine source. And yet even if the distinction between the human and the divine is allowed, it can still be argued that this only reinforces the relativity of nomos. The presence of that relativity would be that which stands in sharp contradistinction to the divine.

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Prior to taking up the argument deployed by Agamben in relation to 169a, it is essential to note the way in which nomos is formulated in relation to 215a. The key to the interpretation, as Agamben indicates, is found in the reference to Heracles. Nomos becomes the justification of violence. And yet the question is how this violence is to be understood. Is it pure violence? (Pure violence could be defined as that which occurs at the point of indistinction between law and violence.) If the opening of the fragment is all that is cited, then it looks as though o˘ nómow basileúw is the name for pure violence. Nomos allows violence—indeed it allows tò biaiótaton. And yet once the rest of the fragment is brought into consideration something else seems to occur. Violence is no longer pure but mediated by its incorporation into activities and thus into a circuit in which it is the articulation of a response. Law may justify violence but it is not pure violence. It is always contextual. An analogy would be that while there may be a justified war it would not follow that all wars—in virtue of being wars—were justified. The justification lay in that which provided the ground, namely a sovereign nomos. Moreover, precisely because nomos rules over both ‘‘mortals and immortals’’ (ynatvn ˜ te kaì ayanátvn), ¯ this means that it has priority—both temporally and in evaluative terms—over the actions of both humans and gods and as such is the place of justice, even that justice that may allow, at times, violence. Nomos can, once again, be understood as linked to a disclosed public space—the space of public life. The role of nomos, and thus the interpretation of the fragments, can be given a more emphatic register by focusing on the interpretive conflict between Pavese and Lloyd-Jones concerning the interpretation of 169a.∞∫ LloydJones argues against Pavese’s position that, in Lloyd-Jones’s formulation, ‘‘Law . . . in the person of Heracles, brings to justice the evil deeds of Diomedes.’’ For Lloyd-Jones the contrary is the case. His argument is that what is occurring is the ‘‘making just what is most violent.’’ That is why, overall, Lloyd-Jones can conclude that Heracles did not act justly. For Pindar, however, he did—as ‘‘in attacking these common enemies of gods and men, Heracles was carrying out the will of Zeus and helping to enforce the order of the universe.’’∞Ω It is not necessary to pursue the concluding point made by Lloyd-Jones that nomos ‘‘was identical with the will of Zeus’’ in order to appreciate the full force of the argument. What is involved is the claim that nomos defines order. What the relativity of 215a brings into consideration is a subtler claim, namely that while the content that may be given to any ordering system is marked by a type of relativity, the system as a system defines 156

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coherence and therefore is neither relative nor arbitrary. Nomos defines the coherence of the people. It is not di≈cult to see a link between this coherence and the more modern conception of tradition. However, in this instance the important point is that what provides coherence may allow specific acts of violence to be just. While Lloyd-Jones does not allow for the position, it can also be concluded from this setup that Zeus is subject to the law that he creates. This has important consequences insofar as it has a significant e√ect on positioning in relation to nomos. Once it can be argued that Zeus is subject to the law that he creates, this has the inescapable consequence that there cannot be a privileged position in relation to the law that yields an outside. Positions within the public realm, positions of life, are always defined in relation to nomos. As such, it is no longer possible to be outside the law or even before the law. Once the possibility of being before the law is defined either temporally or in terms of spatial distance, then such a positioning becomes impossible, precisely because it misunderstands the nature of nomos. Such a position conflates law with statute. Moreover, it opens up as a question of debate how the relationship between statute and nomos is to be understood.≤≠ The relativity of 215a points to the impossibility of understanding human activity outside a relation to the regulative. What this means is the growing impossibility of e√ecting an easy separation between law and life. The distinction between law and life would be based on the identification of law with statute and thus the insistence that the responses to law were simple obligation or duty. Once it can be argued that there is a type of reciprocity between law and life (and here law would need to be understood as nomos), then a di√erent set of responses is set in place. Despite the di≈culties that it brings with it, it is worth looking at the claim made by Herodotus in relation to the inherent plurality of nomoi. Even though it is a lengthy passage (3. 38) it identifies the problems with great acuity.≤∞ If it were proposed to all nations to choose which seemed best of all customs (nómouw) each, after examination made, would place his own first. So well is each persuaded that its own are by far the best. It is not therefore to be supposed that any, save a madman, would turn such things to ridicule. I will give this one proof from among many from which it might be inferred that all men hold this belief about their customs: when Darius was king, he summoned the Greeks who were with him and asked them what price would persuade them to eat their father’s spacing as the shared

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dead bodies. They answered that there was no price for which they would do it. Then he summoned those Indians who are called Callatiae, who eat their parents, and asked them (the Greeks being present and understanding by interpretation what was said) what would make them willing to burn their fathers at death. The Indians cried aloud that he should not speak of so horrid an act. So firmly rooted are these beliefs; and it is, I think, correctly said in Pindar’s poem that nomos is King of all (nómon pántvn basiléa). The importance of the final line is that while it sanctions the identification of nomos with a divine presence, it still allows nomos to be identified with a regulative principle. While there is some suggestion that Herodotus has confused the two fragments and that 215a serves his purpose better than 169a, it is also possible to argue—and such an argument reiterates the atheological reading of nomos—that sovereignty does not demand a universal nomos but that nomos is sovereign even if (on the level of content) it cannot be generalized. The conclusion would be that Herodotus has in fact chosen the correct fragment. Sovereignty is not external to nomos but is its actualization. Hence what will need to be taken up is how the continuity of that actualization is to be understood. Indeed the force of the passage from Herodotus reinforces the argument concerning the impossibility of generalizing on the level of content but not the impossibility of generalizing the centrality of nomos. While it goes beyond the obvious concerns of the passage, it is nonetheless essential to note that his agreement with Pindar can be interpreted as an agreement that is precisely not concerned with the content of a given nomos, but with nomos understood as a transcendent presence. Moreover, it also reinforces the identification of nomos as that which discloses the space of human activity, i.e., life. Nomos becomes that which allows life. Reciprocally of course life is that which is allowed by nomos. Allowing is not the state occasioned by law, or even defined by law, if law is equated with statute. Allowing is an occasioning. What is allowed is the occurrence of life. Nomos is linked to the presence of a spacing. Moreover, it is a spacing that does not constitute life but is how the continuity of public life is to be understood. Nomos therefore is what is shared. Nomos as transcendent is what is in common. It is at this point, therefore, that the connection with Heraclitus emerges. What is at work within the connection is a reworking of nomos as that which is inextricably bound up with public life. In a real sense it can be taken as public life. If Pindar can be attributed a pluralized conception 158

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of nomos, then the connection with Heraclitus will involve the relationship between nomos and spacing. In other words, it will involve the relationship between nomos and the wall. The question that arose with Heraclitus arises at this point as well. Is there a conception of nomos that can be radically differentiated from life? What this amounts to asking is the possibility of a conception of nomos that can always be distinguished from its application. If the answer to that question is in the negative, then force and nomos can formally never be distinguished. While part of what this entails is that nomos is the continuity of its actualization, it is also true that actualization refers to the continuity of a position. Within it, however, a distinction can still be drawn between nomos—as the condition of, and for, this originary spacing, and thus nomos is not anterior to it—and the inescapable relativity of nomoi. This is the possibility that can be seen as arising from the interpretations of Heraclitus and Pindar o√ered thus far.

Agamben: The Inclusion of the Exception The argument of Homo Sacer is complex. Not only is the book concerned to rework a conception of sovereignty, the rewriting of sovereignty becomes another formulation both of the history of nomos and the history of the Western philosophical tradition. To the extent that the argument is accepted, what is accepted is, at the same time, a di√erent account of how modernity comes to be di√erentiated from the classical. Within the argument of Homo Sacer, the modern is the release of a possibility that marks the incorporation of some of philosophy’s founding oppositions. Prior to any engagement with that element of the text, a start will be made with the way Pindar figures in the overall argument. Opting for this way in is not an arbitrary point of departure. Agamben’s argument concerning the centrality of Pindar is unequivocal: ‘‘Pindar’s fragment on the nomos basileus contains the hidden paradigm guiding every successive definition of sovereignty: the sovereign is the point of indistinction between violence and law, the threshold on which violence passes over into law and law passes over into violence’’ (32). The questions that arise here are therefore those that concern how Agamben interprets the fragment and how he allows it to play such a determining role. In this explication the central point is to provide the detail of Agamben’s interpretation and use of Pindar. The opening move is that for Agamben Pindar ‘‘defines the sovereignty of the nomos by means of a justification for violence.’’ Nomos provides therefore both for the textual juxtaposition and spacing as the shared

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the conceptual unification of bía and díkh, violence and justice. Their union is brought about by nomos. The role played by nomos in Solon and Hesiod is mentioned to show that there is a more decisive turn in Pindar. Thus Agamben can conclude that Pindar is ‘‘the first great thinker of sovereignty—the sovereign nomos is the principle that, joining law and violence, threatens them with indistinction’’ (31). The next stage of Agamben’s argument involves two interrelated moves. The first is to show that Schmitt misunderstands the force of Pindar’s conception of nomos. And yet, and this is the point made by Agamben on behalf of Schmitt; Schmitt’s work provides the basis for its correct interpretation. The second is to show in what way a reiteration of Pindar’s positing of an indistinction between violence and justice, once articulated within a distinction between nómow and fúsiw (nomos and physis) at work in Plato, sets the scene for the contemporary construal of the relationship between nature and society. Schmitt attempted to rectify Hölderlin’s translation of nomos by Gesetz by arguing that, contrary to what such a translation entails, ‘‘nomos in the originary sense is, rather, pure immediacy of a juridical power not mediated by law’’ (32). What Schmitt misses in Hölderlin is that Hölderlin is attempting to ground law in something that is higher than law. Here there is an accord with the spirit of Schmitt’s undertaking, since Schmitt is also concerned to ground law in ‘‘nomos as a sovereign principle.’’ What Agamben sets in play is a distinction between law and nomos. Nomos will always be ‘‘higher.’’≤≤ Prior to any consideration of the justification for the move, it is essential to note the extent to which it informs Agamben’s interpretation of Plato, the point of departure for which is, of course, Plato’s citation of Pindar in the Gorgias. As significant, however, is the passage from the Protagoras that Agamben takes to be an ‘‘implicit citation’’ of Pindar. It is this latter interpretation that will be of concern here precisely because it stages a formulation of the distinction between nomos and physis that is reiterated in the Laws and informs subsequent discussions of the relationship between physis and nomos. The passage from the Protagoras is a position—taken to be Socratic— advanced by Hippias: ‘‘You people who are present, I maintain that you are all relatives and neighbours, and citizens by nature and not by law. The similar is related to the similar by nature, but the nomos the tyrant of men commits many acts of violence against nature.’’≤≥ The argumentation of this passage is reiterated in the Laws (690b–c). For Agamben, what concerns Plato in both instances is what he describes as the ‘‘coincidence of violence

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and law as constitutive of sovereignty.’’ What emerges from the passage is that while the distinction between nomos and physis can for Plato lead to the argument for the nonviolent nature of nomos, it can be turned around, as is the case with the Sophists, for whom the same opposition can be used to establish the ‘‘union of bia and diké’’ (35). The e√ect of this opposition is considerable. It underwrites the distinction in Hobbes between nature and the commonwealth and comes to have a determining e√ect on how sovereignty is understood. The next stage of the argument, though complex, is crucial. Agamben wants to argue that the opposition physis/nomos allows for sovereignty, though, it has to be noted, a very specific formulation of sovereignty. The full statement of this position is the following: Sovereignty thus presents itself as an incorporation of the state of nature in society, or, if one prefers, as a state of indistinction between nature and culture, between violence and law, and this very indistinction constitutes specifically sovereign violence. The state of nature is therefore not truly external to nomos but rather contains its virtuality. The state of nature (certainly in the modern era, but also in that of the Sophists) is the beingin-potentiality of the law, the law’s self-presupposition as ‘‘natural law.’’ (35–36) Part of what this positioning involves is the localization within the totality of the ‘‘state of exception.’’ That state is the one in which, in being excluded from law, is able both to ground and suspend law. The indistinction between violence and justice (`sbía and díkh) is integral to nomos as its constituting act of suspension. This is what Agamben identifies as the ‘‘paradox of sovereignty.’’ Before tracing the way this argument becomes the basis for the interpretation of the homo sacer and more particularly the way it gives rise to a fundamental turn in the politics and philosophy of the body, it is essential to begin to question the basis of the interpretation of the Greek texts (by Agamben) presented thus far. There are a number of fundamental points that need to be examined. The first is the question of whether or not there is in Pindar a point of indistinction between violence and justice. Second nomos has a consistent semantic range such that it is possible to move between Pindar and Plato in order to argue that the Platonic distinction between physis and nomos can be used to understand the role of nomos in Pindar. Finally, though this is the position

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that is the most di≈cult to express, there is within the realm of the texts being analyzed the incorporation of the site and state of exception. While this looks to be a reiteration of the first point, what is being asked in this final question has to do with a particular cartography, one determined by an interpretation guided as much by the literal presence as by the symbolic presence of the city wall. What is central to all of these points is the relationship between law and life. In regard to the first, it is as though there is a moment in which law’s withdrawal allows for a life not constituted in relation to nomos. In regard to the second, it is as though life were a category that could be placed within the opposition between physis and nomos. And in regard to the third what is being questioned is the place of human life. The vitality of the pre-Socratic tradition is not its uniformity but the complexity staged by its distance from Plato and Aristotle. Though this distance is not great and even though pre-Socratic texts are continual sites of investigation and interpretation within the Platonic and Aristotelian corpus, it remains the case that the distance provides a site of deliberation. One group of texts cannot be readily assimilated to another. When in fragment 123 Heraclitus claims that fúsiw krúptesyai file˜i (Nature is accustomed to hiding itself ), this has to be interpreted not as a claim about nature—if nature is thought to exist in a simple opposition to nomos—but in regard to the nature of things. The fragment is suggesting that the nature of things in not being self-evident has to be discovered. What there is, in other words, is the subject of inquiry. (What is—is in the emphatic sense of what exists—is there to be discovered.) This position is reinforced by the claims of fragment 35 that wisdom is linked to those who are ‘‘inquirers into many things.’’ While the position is not identical to the claim made by Hippias in the Protagoras, the passage cited above continues by claiming that quarreling should not really occur among those thn ` mèn fúsin tvn ˜ pragmátvn e¯idénai (who knows the nature of things) (337D3). Hippias’s point is not the same as the one found in the Heraclitean fragment; nonetheless what both positions involve is a conception of physis that is linked to a founding propriety rather than one that stands over against nomos, let alone one that can be identified with nature, if nature is thought to have any relationship to Rousseau’s ‘‘state of nature.’’ What this opens up is the possibility that nomos and physis in Heraclitus identify regulative principles. They are not in strict opposition and as such would not allow a retroactive interpolation of the distinction between human and nature back into the initial formulation. This provides a setting in which to address the problem of the interpreta162

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tion of nomos (and other cognate terms). Once again this is not to claim that these terms have an identical usage in Heraclitus and Pindar. Moreover, the shift in terminology between the fragments from Pindar indicates the di≈culty of establishing a complete and all-encompassing interpretation. It appeared that the overriding interpretive problem bequeathed by the comparison of fragments 169a and 215a lay in the attempt to reconcile relativity and universality. The way through the problem involved the recognition that there wasn’t a conflict. Rather, there was the need to distinguish between a formal claim concerning the universality of nomos and the specific claim concerning the actual relativity of nomoi. As has already been intimated, there is an important link that can be established between Heraclitus and Pindar at this precise point. Both can be interpreted as having a conception of nomos that is bound up with the disclosure of the space of judgment. Public space is that which is fought for. The dramatic conclusion is that it is impossible to conceive of life other than in an originary relation to nomos. Indeed it is this link that necessitates that the connection Agamben establishes between his interpretation of Pindar and Plato and the homo sacer be examined. The homo sacer plays a pivotal role in Agamben’s reworking of the history of sovereignty. The structure of sovereignty as it is found in Pindar, for Agamben, allows for the indistinction between violence and law, though equally it must also allow for their distinction. It is in terms of this copresence that ‘‘bare life’’ is able to figure. The homo sacer is the life that is positioned within the sovereign sphere by the indistinction between law and violence. The homo sacer may be killed but not sacrificed and as such is, as ‘‘bare life,’’ always withdrawn from the province of law. The withdrawal becomes, in a certain sense, foundational. Prior to any questioning of the possibility of this ‘‘bare life’’ further elements need to be adduced. The extension that is to be attributed to the homo sacer needs to be noted: ‘‘The life caught in the sovereign ban is the life that is originally sacred—that is, that may be killed but not sacrificed—and, in this sense, the production of bare life is the originary act of sovereignty. The sacredness of life, which is invoked today as an absolutely fundamental right in opposition to sovereign power, in fact originally expresses both life’s subjection to a power over death and life’s irreparable exposure in the relation of abandonment’’ (83). It is not di≈cult to see how the posited indistinction between violence and justice that arose in the context of Pindar’s fragment generates that position that has to bear this founding indistinction. In being withdrawn from law the homo sacer becomes the subject of pure violence. In the Greek context it spacing as the shared

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is essential to distinguish the homo sacer from the metoikos. The latter is the outsider or foreigner. In regard to the latter, there were a series of established conventions. The homo sacer occupies a more extreme position. That such a position exists flows, for Agamben, from the argument that starts with Pindar. The position is given greater philosophical weight by the reference to Nancy’s conception of ‘‘L’être abandonné.’’≤∂ For Nancy the human predicament—the ontological state of human being—is the state of being abandoned to a law. We are a-ban-doned—given over to the law. Once it is added that this being in abandonment is articulated with the state of distinction/indistinction between law and violence, then the being of abandonment has to be rethought. Hence Agamben argues, ‘‘Only if it is possible to think the being of abandonment beyond every idea of law . . . will we have moved out of the paradox of sovereignty towards a politics freed from every ban’’ (59). For Nancy this position is impossible. There is only abandoning to the law. Agamben, citing Heidegger, argues for a conception of abandonment allowing for an ‘‘experience freed from every idea of law and destiny’’ (60). At issue here is not just the ontological constitution of being human but the possibility of a freedom that is defined as ‘‘beyond every idea of law.’’ What this means is beyond the ‘‘paradox of sovereignty.’’ If this is the challenge that Agamben’s work establishes, it is also the limit. It is not as though the question is whether it is possible to think beyond the confines of law. Rather, the question that has to be addressed concerns the possibility of there being a conception of human being that is not defined in relation to nomos (not the relativity of nomoi, though that will also be the case, but nomos as a transcendent condition of the spacing that yields the locus of judgment). While it may be the case that the refusal of participation is a position, it is not the position of ‘‘bare life,’’ but rather the privation of autonomy. The struggle to attain autonomy, while not an end itself, is the struggle to overcome a specific formulation of alterity, in order to allow for a di√erent conception. The ineliminability of alterity and thus the need to think the possibility of a conception of alterity that involves reconciliation to irreconcilability is that which is staged by the city wall.≤∑ It is not ‘‘bare life.’’ In order to address the question of the possibility of ‘‘bare life,’’ which is, of course, the same question as the possibility of a founding point of indistinction between bia and dikh, and in the guise of a conclusion, it is necessary to respond to the provocation of the claim that the camp is ‘‘the ‘Nomos’ of the Modern.’’ The language that surrounds the presence of the camps, what was under164 andrew benjamin

taken within them, and the nature of the legacy is marked by a profound sense of incredulity. Part of the legacy is how to understand. It is not as though Agamben is looking for simple explanations. Rather, what explanation there is demands that the camp be positioned within the history of sovereignty. Two elements guide the analysis. The first is that the camp is not an anomaly. It becomes the extreme form of the possibility announced in the founding indistinction between violence and justice that marks the origin of sovereignty. In a sense, therefore, it is the ultimate version of the founding truth of sovereignty. The second point is that in being the limit condition it delimits the center. What has to be pursued, therefore, is the way the argument is developed. Integral to that development is the moment at which the Jew became the homo sacer. There are two moments that are fundamental for Agamben. The first is the use of Schutzhaft. This was an element of Prussian law that allowed certain individuals to be arrested without having committed any ‘‘criminal behavior.’’ There was thus a potential to distinguish between ‘‘citizens’’ without that having to be an actual law that was broken. From the start, therefore, a form of fragility marked citizenship. The second element that plays a fundamental role was the fact that German political history was marked by use of the ‘‘state of exception.’’ In other words, the suspending of the constitution for the sake of the constitution was such an integral part of the legal history of the period that there was nothing exceptional about the suspension of the constitution by the National Socialists. It was suspended without the expression Ausnahmezustand (‘‘state of exception’’) being used. The state of exception could not be seen as external. What this means is that ‘‘Schutzhaft is now separated from the state of exception on which it is based and is left in force in the normal situation. The camp is the space that is opened when the state of exception begins to become the rule’’ (168–69). While the camp becomes the place that is removed from the rule of law and is thus not a place where law pertains, it is equally not outside. It has been internalized. That accounts for why it is possible to argue that the ‘‘camp is the structure in which the state of exception . . . is realized normally’’ (170). Those inside the camp had been stripped of the status of being the subjects of right. As such, however, the position in the camp reflected the position outside the camp. In both instances right had vanished. The camp, for Agamben, can become the nomos of the modern insofar as the camp is the regulator of bare life. In regard to the inhabitants of the camps, he writes the following: ‘‘Insofar as its inhabitants were stripped of every political status and wholly reduced to bare life, spacing as the shared

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the camp was also the most absolute political space to have been realized, in which power confronts nothing but pure life without any mediation’’ (170). The most significant formulation here is ‘‘pure life without any mediation.’’ On one level it is possible to see some force in the argument that an account of what occurred within the wars in the former Yugoslavia, as well as the camps in Nazi Germany and other examples, involves ‘‘an order without localization (the state of exception in which law is suspended)’’ (175) to which there ‘‘corresponds a localization without order (the camp as a permanent space of exception)’’ (175). Moreover, it is also necessary to argue that the so-called ethnic wars of recent years are not a regression to a tribal past but are bound up with the crisis of the nation state. That crisis is simply that the ground of nation has vanished, and, as it is being reinvented, acts of reinvention are marked by violence. Even in accepting such arguments, the key question is the extent to which they occur and are enacted against or in relation to ‘‘bare life.’’ There is a similar question concerning life in the camps. While it may have been possible to see the inhabitants in the camp as the enactment of ‘‘bare life,’’ the question that remains concerns the di√ering ways in which survivors wrote or talked of their own lives. The di≈culty would be generalizing. Even in moving away from the camps of the Nazi period, the problem of ‘‘bare life’’ remains. Is it possible to argue, for example, that whatever took place in Srebrenica took place in relation to ‘‘life without mediation’’? Or was the opposite the case? Is it not possible to argue that the extreme forms of nationalism necessitate that continual even if mythic attribution of identities and histories in order that an ‘‘ethnic cleansing’’ has the force that it intends? It is almost as though what the modern period demands is that the fracturing of the Enlightenment subject means that any one subject is always more than bare life. The Bosnian is killed for being a Muslim; at Omagh, men, women, and children were killed for being Protestant. The examples proliferate. Those who are subject to violence had no presence other than as the particular being in question. They were not killed ‘‘as,’’ but for actually being what they were. While it should be admitted immediately that this attribution of an identity has an essentializing e√ect in turning, for example, all Muslims into versions of the Same, it remains the case that what is defined, and thus attacked, in each case is life that is already mediated in advance. What this means is that, while there may be points at which there is an indistinction between violence and law, such moments are utterly specific. While Agamben is right to argue that such victims may have been 166 andrew benjamin

stripped of a political status, it is only partially true. The stripping that allowed them to be murdered was highly politicized. And in responses to the predicament of Nazi Germany and, again, of the former Yugoslavia the refusal of law and thus law’s protection can always be challenged, at the time or retrospectively, within the larger field of international law. Moreover, it is possible to see that if the nation state is in crisis and this leads to the growing impossibility of national law and thus nationally defined and determined conceptions of sovereignty to have force, then the response is to not argue for a position that is freed from the hold of law but rather to redefine the locus of law. There would need to be a move beyond national and international understood as a simple opposition. When Pindar writes that nomos is king and yet that all people have their own specific nomoi, this should not lead to a mute philosophical or political acceptance of normativity for its own sake. What Pindar is stating is the twofold recognition of the inescapability of nomos, on the one hand—a nomos in relation to which some violent acts will be just—and, on the other, the contestable nature of nomoi. Nomos should never be too quickly conflated with law, let alone with specific statutes. There is a tendency for Agamben to move with great rapidity between the two. If there is a residual truth about the nature of nomos, then it emerges from fragment 44 of Heraclitus. However, the ambivalence of the city wall must be maintained. The wall may disclose a space of terror in which ‘‘strangers’’ or ‘‘foreigners’’ are denied the same status as those who claim it as their own. The city wall may disclose a space of judgment in which there is a productive openness that in being maintained becomes the public realm. In the first instance the relativity of nomos allows for the judgment of such a space. The presence of any form of ethnic cleansing within the city wall would be premised on the refusal of the inherent plurality that a city wall discloses by virtue of being a wall. Hence the nature of nomos would not be understood. The second refers to that possibility for democracy that is inherent in the complex connection between life and nomos. It is not realized within attempting a synthetic act of unity such that what the wall discloses is the Same. Rather, such a potential is realized when what becomes a≈rmed is the inherent plurality within the space disclosed by the wall. Allowing for the democratic, therefore, is to recognize that there could never be ‘‘bare life’’ except as an aftere√ect, and it is an aftere√ect that can always be challenged. The challenge should not stem from a residual humanism, which is after all no more than the attempt to found a politics on the Same, but from the complex consequences that spacing as the shared

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flow from the acceptance that a ‘‘people must fight for the nomos as for their city wall.’’ What the wall allows is what is shared. notes 1 Agamben’s philosophical writings have developed over a period of time. In this essay concentration will be focused on his 1995 work Homo Sacer: Il potere sovrano e la nuda vita (Turin: Giuilo Einaudi). All references will be to the English translation by Daniel Heller-Roazen, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998). Page numbers will be included in the text. For a sustained critical engagement with Homo Sacer as a whole, see Peter Fitzpatrick, ‘‘Bare Sovereignty: Homo Sacer and the Insistence of Law,’’ Theory and Event 5 (2001): 2. 2 I have attempted to develop the relationship between naming and conflict in The Plural Event (London: Routledge, 1993). See in particular pp. 61–82 and 184–92. It should be added in addition that the discussion of Pindar is linked to the way in which Pindar is deployed in Agamben and Schmitt. No claim is being made concerning a synoptic interpretation of his work as a whole. 3 While the argument cannot be developed in detail, it is nonetheless essential to distinguish between di√erent conceptions of conflict. It is possible, in drawing on a pre-Socratic tradition, to see an important link between justice and conflict. Conflict becomes the maintaining of di√erence. Maintaining by accepting both the ubiquity of conflict and its ineliminability means that justice has both a transcendental ground as well as the pragmatic dimension of agreement. 4 One of the key texts here is of course Jacques Derrida, Khora (Paris: Galilée, 1993). Derrida returned to the problematic of chora in his ‘‘Avances,’’ in Le tombeau du Dieu Artisan, ed. Serge Margel (Paris: Les Editions de Minuit, 1995). Another important contributor to the area is John Sallis, Chorology: On Beginning in Plato’s ‘‘Timaeus’’ (Bloomington: Indiana University Press, 2000). 5 The reference here is of course to the Monadology §12. See G. W. Leibniz, Die philosophischen Schriften, ed. Halle C. Gerhardt (1875–1890; repr. Georg Olms Verlag, 1978), vol. 6, p. 608. 6 One of the most sustained encounters with the question of positioning in relation to the law is to be found in Kafka’s celebrated ‘‘parable’’ ‘‘Vor dem Gesetz’’ (‘‘Before the Law’’). Of the many issues raised by the parable, perhaps one of the most insistent has to do with the status of the ‘‘before.’’ The temptation is to see the ‘‘before’’ as constructing a relation that is always anterior to law and thus law as defined by externality. While it cannot be argued for in this context, it can nonetheless be suggested that the force of the parable is to reposition the ques168 andrew benjamin

tion of the law such that it is never a question of ever being before it. This defines the complex position of the subject’s relation to the law. In sum, it is an already present and thus already given relatedness. See Franz Kafka, ‘‘Vor dem Gesets,’’ in Erzählungen, Gesammelte Werke, ed. Max Brod (Frankfurt: Fischer Verlag, 1983), 120–21. One of the most important commentaries on the particular parable is Jacques Derrida, ‘‘Préjugés, devant la loi,’’ in La faculté de juger, ed. Jean-François Lyotard (Paris: Editions de minuit, 1985). 7 To this end see Leland Deladurantaye, ‘‘Agamben’s Potential,’’ Diacritics 30, no. 2 (2000). 8 This conception of violence is linked to the logic of sacrifice that can be found in, for example, the writings of Georges Bataille. For a sustained critique of this logic and the violence it envisages, see Jean-Luc Nancy, ‘‘L’insacrifiable,’’ in Une pensée finie (Paris: Editions Galilée, 1990). 9 One of the problems that will continue to return is the translation of nomos. Even though there is a range of possible translations, they oscillate between di√ering conceptions of law and custom. And yet even opting for any one single translation is not su≈cient since the meaning of nomos in Pindar will di√er from the meaning in Solon, Hesiod, Heraclitus, etc. The word nomos has been retained therefore. Since part of the argument is that nomos allows for a certain distancing of the separation between law and life—where law is understood as statute—it is essential to retain a formulation in which such a separation is not presupposed from the start. 10 The question of sovereignty would become far more complex if the arguments advanced by Foucault in Il faut defender société (Paris: Gallimard, 1997) had been taken up. Foucault’s argument is that sovereignty as a category loses its hold in the modern period. What becomes important is the move from sovereignty as a general theory of the nation or a people, to a conception of power and the establishing of subject positions that produces a theory of the heterogeneous rather than of unitary forms. 11 As it provides the easiest point of access, the Diels numbering system has been used. The translation by Kahn (The Art and Thought of Heraclitus [Cambridge: Cambridge University Press, 1979]) has been the main point of departure. Other editions that have been consulted include the following: M. Marcovich, Heraclitus: Greek Text with a Short Commentary (Merida, Venezuela: Los Andes University Press, 1967); M. Conche, Héraclite: Fragments (Paris: Presses Universitaires de France, 1986). 12 The term principle will be used throughout this section on Heraclitus. What it attempts to identify is a methodological procedure in Heraclitus. Throughout the spacing as the shared

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fragments there are di√ering arguments concerning how things are to be understood or perceived, etc. The formulation usually used involves a construction beginning with the preposition kata. For example, things occur kata ton logon; things are to be understood kata fusin. Without trying to define what is meant by either logos or fusis —and there are other examples—it can still be suggested that they name regulative principles. What occurs is not the result of chance. While ordering principles cannot be identified and explicated, it remains the case that they are there. The shorthand ‘‘principle’’ is used in order to cover this state of a√airs. 13 There is an important philosophical point that emerges here concerning intentionality. The argument concerns the extent to which living according to a series of norms and thus in living accepting them has to be understood as intentional. 14 Integral to the formulation of Jewish identity in Leviticus (19:33–34) is the recognition that the stranger should be treated as if he or she were already at home. While the temptation is to interpret the passage in terms of a universal humanism, the force of the position is more complex. The stranger has to be acknowledged both as a stranger and as at home. It is clearly the case that there is the possibility of positing a final home in which the condition of alterity would no longer prevail. Or, as is also allowed by the passage, there is the recognition that alterity is an inevitable mark of human being. 15 Carl Schmitt, Der Nomos der Erde (Berlin: Duncker und Humblot, 1960), 42–45. 16 References are to the Loeb Classical Library Edition, ed. and trans. William H. Race (Cambridge, 1997). 17 For the sake of convenience the translation used by Agamben has been deployed. It is clear that once the debate concerning the meaning of the garment is pursued with rigor, then the translation will vary accordingly. This will become clear in the brief discussion of Pavese and Lloyd-Jones that follows. 18 See H. Lloyd-Jones, ‘‘Pindar 169,’’ Harvard Studies in Classical Philology 76 (1972): 154–65; C. O. Pavese, ‘‘On Pindar fr. 169,’’ Harvard Studies in Classical Philology 95 (1993): 143–55. 19 Lloyd-Jones, ‘‘Pindar 169,’’ 58. 20 It is not di≈cult to see the contemporary relevance of this setup. In response to the continual arrival of refugees in Australian territorial waters, the government is responding by towing the boats back into international waters. Once the boats land, the refugees are subject to the law. In this instance the law allows for their care. If they are in international waters, they are not subject to Australian law. They would seem to be outside the law. However, in international waters they are subject to international law and specifically laws to do with the sea. In regard to 170

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those laws, Australia could be in breach of their demands in relation to its treatment of refugees. The conflict, on the level of statute, is between national and international law. Moreover, if there are inadequacies, then it has to do with reach and the detail of the particular laws involved. If the identification of nomos with statute were resisted, then part of the argument against the Australian government’s treatment of refugees would have to do with an argument within a given nation-state concerning how refugees should be treated. It is not surprising that the current Liberal government that has resisted any form of reconciliation with its own indigenous people would also refuse to welcome the refugees. Once the argument is extended in this way, it rapidly emerges that the question of the refugee is equally the question of how the other within is to be treated. This is part of the argument that holds, on the one hand, to the ineliminable presence of division and defines, on the other, justice as the way those divisions are negotiated. For an informative collection of essays on the topic of reconciliation in the Australian context, see Michelle Grattan, ed., Essays on Australian Reconciliation (Melbourne: Black Inc.). Djon Mundine advances one of the most important arguments in the book; it concerns the need to see the relationship between reconciliation and cultural and economic practices. There is also the recognition of some of the di≈culties inherent in the word reconciliation. The argument could be extended to cover issues that pertain to the refugee as well: ‘‘The dictionary meaning of reconciliation is listed as: to make friendly after estrangement, to purify after a desecration, to heal, to harmonise, to make compatible, but also to make acquiescent or contentedly submissive. Although, like the rest of Australia, indigenous people would like to reach a form of healing, this can only be meaningful with action; it must be pragmatic and economic as well as symbolic and spiritual. A number of concurrent strategies need to be pursued—remedial, economic, educational’’ (Australian Recognition, 194). 21 Reference here is made to the Loeb Classical Library edition of Herodotus (Herodotus Books III–IV, trans. A. D. Godley [Cambridge, Mass.: Harvard University Press, 1938]). The translation of the final line has been altered for reasons of accuracy and consistency. While it cannot be pursued in this context, it is interesting to note that Herodotus defines madness as the ridiculing of the nomos. While on the one hand that is to argue for a simple acceptance of norms, it allows, on the other hand, for the subtler response in which madness would be understood as the refusal of nomos as a universal regulative principle while leaving open the question of the acceptability of all nomoi at any given point in time. Madness would be as much the embrace of the demonic as it would be the prescriptions of methodological individualism. spacing as the shared

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22 While it cannot be argued in detail in this context, it is worth noting that it is possible to extricate Hölderlin from this position. His own translation of this particular Pindar fragment is accompanied by his own commentary that can be read as a repudiation of the interpretations o√ered by both Agamben and Schmitt. Once, in the language of the commentary, Hölderlin identifies the law as that which is ‘‘strictly mediate’’ (strenge Mittelbarkeit), he refuses to law any exteriority. That is why he says of the ‘‘king’’ (basileuw) that it is ‘‘only the sign for the highest ground of knowledge (den höchsten Erkentinißgrund) and not for the highest power (nict für die höchste Macht). In sum, neither externality nor exteriority is ever a possibility. Nomos is always already situated. That situation is what gives it its power. 23 For an interesting discussion of the Protagoras, see Michel Narcy, ‘‘Quels modèles, quelle politique, quels Grecs?’’ in Nos Grecs et leurs modernes, ed. B. Cassin (Paris: Editions de Seuil, 1992), 110–13. In Narcy’s summation of the position, he writes that citizenship (la citoyenneté) is defined by ‘‘la soumission à la loi’’ (111). While it is clearly a question of how this law (loi) is understood, the crucial question concerns what ‘‘soumission’’ entails. The problem inherent in the move from nomos to statute can be dramatized by that question. 24 The text by Nancy quoted by Agamben is ‘‘L’être abandoné,’’ in L’impératif catégorique (Paris: Flammarion, 1983). 25 The formulation ‘‘reconciliation to irreconcilability’’ plays a fundamental role in the project of which this essay forms a part. It is intended to mark out the twofold move that accepts on the one hand the ineliminability of alterity, while, on the other, allowing for the possibility that alterity may enjoin tolerance rather than violence. The condition for tolerance is the relinquishing of a certain conception of mastery. There is, paradoxically, enormous strength in the weakness that accepts di√erence. Such an acceptance would be the reconciliation to irreconcilability.

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cutting the br anches for akiba Agamben’s Critique of Derrida It is surprising to find that the first English-language anthology devoted solely to Giorgio Agamben’s work should fall under the publisher’s rubric of ‘‘political theory’’ or ‘‘political philosophy.’’ This is not so much because of the large and scintillating body of work in philology, literary criticism, and ‘‘first philosophy’’ that Agamben composed before coming to focus on issues of the political per se. Rather, it is because he himself so frequently says, in Homo Sacer and elsewhere, that politics is nothing but philosophy: ‘‘philosophy’’ (sometimes ‘‘intellectuality’’ or ‘‘thought’’) is politics’ proper name.∞ When philosophy takes politics as its object, it finds only itself; and politics as such—to use one of Agamben’s privileged qualifiers—accordingly disappears from the scene of the political. My overarching thesis is that Agamben, for all the acuity of his philosophical interpretations of and insights into contemporary political phenomena, ultimately loves philosophy a little too much, too much, at least, for the good of his political philosophy and his politics (and perhaps for the good of the rest of his philosophy as well). My approach to these ironies in this essay is oblique, and passes by way of Agamben’s critique of Jacques Derrida’s work. Rather than taking on the di√erence between Agamben’s and Derrida’s concepts of the political directly (something that I have attempted in much greater detail elsewhere),≤ here I focus more narrowly on the express terms of Agamben’s critical commentary. I have taken this approach even though most of this commentary addresses Derrida and deconstruction at the level of first philosophy rather than in terms of politics per se. By way of justification, if one is necessary, it ought to be said that Agamben makes it clear in Homo Sacer and elsewhere that his political philosophy is perfectly continuous with his other philosophy, and with his fundamental ontology in particular. Although most of the attention garnered by Homo Sacer has focused on its biopolitical theses, these, it seems to me, are entirely derivative (if not quite epiphenomenal) of the first-philosophical discussion that constitutes the first section of the

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book—an example of the dependence of his politics on his philosophy that I attempt to call into question here. Moreover, Agamben’s critique of Derrida has long provided a springboard for his own a≈rmative philosophical theses, and in Homo Sacer it reappears again, at the crucial juncture in his argument in which the analogy (which is more than just an analogy) between the structures of ‘‘abandonment’’ shared by law and language converges with the fundamental critique of law’s ‘‘being in force without significance’’ as the original form of the ‘‘state of exception.’’≥ Indeed, it emerges precisely at the moment in which biopolitical modernity, confronting its final crisis, must choose between an inauthentic and an authentic politics, the point at which ‘‘two di√erent interpretations’’ of the ‘‘essential character of the state of exception’’ o√er themselves: the interpretation that sees in the exception ‘‘the Nothing of Revelation,’’ ‘‘the maintenance of the pure form of law beyond its own content—a being in force without significance,’’ with which Agamben aligns Derrida and deconstruction (the language is Gershom Scholem’s and comes from his correspondence with Benjamin), and Walter Benjamin’s interpretation, in which even this ‘‘pure form of law’’ is nullified and law becomes ‘‘indistinguishable from the life over which it ought to rule.’’∂ Since Agamben also makes it clear that the choice between these two interpretations is at the same time a choice between which of two purported Messiahs to follow (and the Messiah, it should not be forgotten, is that figure whose ‘‘arrival signifies the fulfillment and the complete consummation of the Law’’),∑ the stakes of his debate with Derrida for his political thought ought to be clear. Without saying so in quite so many words (although he comes very close elsewhere),∏ Agamben’s virtual charge here is the harshest that can be leveled: that Derrida, or rather deconstruction (there is nothing personal in any of this),π is the false Messiah.∫ My goals in this essay are, first, to render intelligible as a unified critique the sometimes inconsistent-appearing things that Agamben has written about Derrida over the past twenty years; second, to briefly indicate the implications of the philosophical di√erences revealed by this critique for their respective concepts of the political (again, something that I attempt in much greater detail elsewhere);Ω third, to suggest what Agamben’s critique might teach us about the relationship of philosophy to politics and ethics; and finally, to try to bring these airy abstractions down to earth by demonstrating their political traction in one of the arenas in which Agamben’s

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analysis of sovereignty and bare life would seem to have the greatest force, the American law of capital punishment. Agamben states his fundamental objection to deconstruction with admirable clarity in an early book on Hegel and Heidegger, Language and Death: The Place of Negativity. There, while acknowledging the ‘‘acuteness’’ of Derrida’s critique of metaphysics and honoring Derrida as ‘‘the thinker who has identified with the greatest rigor . . . the original status of the gramma and of meaning in our culture,’’ he nevertheless goes on to say that Derrida ‘‘believed he had opened a way to surpassing metaphysics, while in truth he merely brought the fundamental problem of metaphysics to light.’’∞≠ What then is this ‘‘fundamental problem of metaphysics’’ that Derrida has exposed without yet overcoming? In a condensed passage, Agamben turns Derrida’s grammatology on its head: [M]etaphysics is not simply the primacy of the voice over the gramma. If metaphysics is that reflection that places the voice as origin, it is also true that this voice is, from the beginning, conceived as removed. . . . To identify the horizon of metaphysics simply in that supremacy of the phone and then to believe in one’s power to overcome this horizon through the gramma, is to conceive of metaphysics without its coexistent negativity. Metaphysics is always already grammatology and this is fundamentology in the sense that the gramma . . . functions as the negative ontological foundation.∞∞ Agamben’s charge against Derrida thus repeats Derrida’s similar charge against Heidegger—that he has remained within the metaphysical tradition that he thought to have identified and escaped. For Agamben, however, that tradition is not defined by the value placed on ‘‘presence,’’ as it is for Derrida, but on a form of ‘‘absence’’—the ‘‘negative ontological foundation’’ to which Agamben refers in this passage. Agamben’s countertraditional notion of metaphysics resting on a ‘‘negative ontological foundation’’ (although resting would seem to be precisely the wrong word for the relationship to a ‘‘negative foundation’’) is accompanied and clarified by an equally countertraditional history of metaphysics, one that resembles in form Heidegger’s history of the forgetting of Being but with di√erent players in di√erent roles. Chief among these changes is a shift from a history of metaphysics as the history of the occlusion of the Being of beings to that history as the history of the occlusion of the essence, or

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‘‘Idea,’’ of language by language itself.∞≤ As the terminology of the ‘‘Idea’’ suggests, Agamben’s story begins with Plato, whose theory of Ideas, in Agamben’s interpretation, culminated with the discussion of ‘‘the thing itself ’’ (to pragma auto) in the Seventh Letter. With the notion of to pragma auto, Plato had identified the very quiddity of the ‘‘thing’’ insofar as the thing only is in language. Only in its being-in-language, where it not only meets up with its infinity of uniquely identifying predicates but becomes subject to predication in general, is the thing as that thing. Agamben thus analyzes to pragma auto as the thing’s purely linguistic being, which is not itself a ‘‘thing’’ but the sayability of the thing, its pure taking-place in language. This pure taking-place is, on one hand, what is necessarily presupposed by every speech act (since the functioning of language necessarily presupposes the sayability of its terms), but on the other, by virtue of that same presupposition, is what is forgotten (or ‘‘abandoned,’’ in the parlance of Homo Sacer—included in language only by virtue of its exclusion)∞≥ in each speech act as well, since the sayability of the thing is not itself a thing and thus is not itself ‘‘sayable.’’ As a result, that upon which language and Being depend— their pure and final presupposition, the taking-place of entities in and as language, Agamben’s ‘‘Idea of language’’—is occluded by language itself.∞∂ The task thus assigned to philosophy is to allow language finally to ‘‘say,’’ or thematize, its own ultimate but unreachable presupposition, Plato’s arkh¯e anypothetos—as Agamben puts it, to ‘‘come with speech to help speech, so that, in speech, speech itself does not remain presupposed but instead comes to speech.’’∞∑ Moreover, this task ought to be eminently possible, according to Agamben, because ‘‘[l]anguage, which for human beings mediates all things, is itself immediate,’’ and ‘‘such an immediate mediation constitutes the sole possibility of reaching a principle freed of every presupposition, including self-presupposition’’—which is to say, of reaching the arkh¯e anypothetos.∞∏ It is the philosopher’s task—which Agamben will later define as politics itself—to bring this immediate mediacy as such to language. But philosophy, in Agamben’s view, has fallen away from this task— indeed, has been falling away from it since Aristotle. Leaving the details of Agamben’s ingenious argument for an endnote,∞π su≈ce it to say that he concludes that in Aristotle’s thought, which has had the decisive influence in this area down to the present day, the letter and the written ( gramma and graphomena) on one hand take on the pure ‘‘form of presupposition itself,’’ and on the other, become the ‘‘final interpreter, beyond which no herm¯eneia is possible,’’ and thus ‘‘the limit of all interpretation.’’∞∫ As a result, writing 176 adam thurschwell

becomes the negative ground of language and meaning—‘‘ground’’ insofar as it is the ‘‘final interpreter,’’ the very element of language beyond or behind which there is nowhere to go, and ‘‘negative’’ insofar as this ground refers not to itself as present, but as already in the unreachable past—that is, as presupposition. The privilege accorded to writing, in this view, thus permanently consigns ‘‘the thing itself ’’ (and its correlates, the entity’s being-such and being-thus) to an abyss of endless deferral. It is only against the background of this history of metaphysics that the full significance of the critique of Derrida comes into view. Referring to Derrida obliquely in an early essay (‘‘The Idea of Language’’), Agamben notes that ‘‘[i]t is hardly an accident, therefore, that an authoritative current of contemporary French thought posits language in the beginning and yet conceives of this dwelling in the arkh¯e according to the negative structure of writing and the gramma. . . . In other words, language, which is in the beginning, is the nullification and deferral of itself, and the signifier is nothing other than the irreducible cipher of this ungroundedness.’’∞Ω To the extent that the philosophical tradition (whether it has recognized this fact or not) has rested on a negative structure of writing and the gramma, Derrida’s ‘‘grammatology’’ cannot overcome it but only bring this tradition to fruition. But if Derrida is positioned as the one who fulfills and consummates the metaphysical tradition without surpassing it, what is Agamben’s position vis-à-vis Derrida and this tradition? That question is answered implicitly in Agamben’s one essay ostensibly devoted exclusively to Derrida’s thought, ‘‘Pardes: The Writing of Potentiality.’’≤≠ On first look, ‘‘Pardes’’ would seem to present di≈culties for the interpretation of Agamben’s critique that I have been arguing up to now (di≈culties that exceed the fact that the essay is oblique, abstract, and exotically erudite even by Agamben’s rather stringent standards). This is not because of the tone of praise with which he refers to Derrida throughout; as we have seen, Agamben’s critique is virtually always accompanied by paeans to the ‘‘acuteness’’ and ‘‘rigor’’ of Derrida’s thinking. Rather, it is because in this essay he seems to interpret Derrida as holding a philosophical position that is identical to his own—as saying precisely what he himself says. Whether that is in fact the case requires a closer look at the essay. ‘‘Pardes’’ opens by quoting a Talmudic mishnah that concerns, inter alia, certain limitations on the discussion and investigation of mystical and metaphysical knowledge (knowledge of ‘‘what is above; what is below; what is first; and what is after’’).≤∞ Without explanation or commentary, Agamben cutting the branches for akiba

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then immediately provides a related aggadah that concerns the same subject: a moral tale of the dangers of seeking mystical knowledge of the godhead, which describes the attempts of four rabbis—Ben Azzai, Ben Zoma, Akiba, and Elisha ben Abuya, known as ‘‘Aher’’ (‘‘the Other’’) after his apostasy—to obtain such knowledge. In its entirety, that story is as follows: Four rabbis entered Pardes: Ben Azzai, Ben Zoma, Aher, and Rabbi Akiba. Rabbi Akiba said, ‘‘When you reach the stones of pure marble, do not say: ‘Water! Water!’ For it has been said that he who says what is false will not be placed before My eyes.’’ Ben Azzai cast a glance and died. Of him Scripture says: precious to the eyes of the Lord is the death of his saints. Ben Zoma looked and went mad. Of him Scripture says: have you found honey? Eat as much as you can [other translations say ‘‘Eat as much as is su≈cient,’’ which makes more sense of this scriptural lesson—AT], otherwise you will be full and you will vomit. Aher cut the branches. Rabbi Akiba left unharmed.≤≤ As its title suggests, Agamben’s essay can be read as an extended philosophical-talmudic commentary on this aggadah. In good talmudic fashion, Agamben begins by relating earlier interpretations and commentaries. In the Cabalistic tradition, he tells us, ‘‘pardes,’’ which means ‘‘garden’’ or ‘‘Paradise’’ in its literal translation, signifies ‘‘supreme knowledge.’’ In particular, it signifies the Shechinah, the mystical ‘‘presence of God’’ that is the highest of the ten Sefiroth, or divine emanations, in the Cabalistic account of divinity. ‘‘The entry of the four rabbis into Pardes,’’ Agamben thus explains, ‘‘is therefore a figure for access to supreme knowledge, and the aggadah contains a parable on the mortal risks inherent in this access.’’ Specifically with respect to the role of Aher, the Other— with whom Agamben identifies Derrida in this tale—the Cabala provides a highly suggestive interpretation: it identifies ‘‘cutting the branches’’ (a phrase often translated as ‘‘mutilating the shoots’’) with ‘‘the gravest sin that can be committed on the road to knowledge,’’ the ‘‘ ‘isolation of the Shechinah’ [or] separation of the Shechinah from the other Sefiroth.’’ ‘‘Cutting the branches’’ is, moreover, associated in the Cabalistic literature with the sin of Adam, who chose the forbidden tree of knowledge and thus was separated from the tree of life. ‘‘[L]ike Adam, Aher, the ‘Other,’ represents humanity insofar as he isolates knowledge, which is nothing other than the fulfilled form of divine manifestation, from the other Sefiroth in which divinity shows itself, making knowledge into his own destiny and specific

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power.’’ And this isolation renders the Shechinah ‘‘maleficent’’—it ‘‘sucks the milk of evil,’’ in the vivid Cabalistic expression.≤≥ But Agamben o√ers another Cabalistic interpretation of this passage as well (taken from the Zohar) which casts the story—and the Aher/Derrida pairing—in another light. In this interpretation, each of the four rabbis represents a mode of interpretation—‘‘Ben Azzai, who enters and dies, is the literal sense; Ben Zoma is the talmudic sense; Aher is the allegorical sense; and Akiba, who enters and leaves unharmed, is the mystical sense.’’ From this perspective, Agamben suggests, we can see another ‘‘moral risk’’ in Aher’s cutting of the branches: ‘‘The risk is that speech, which is nothing other than the manifestation and the unconcealment of something, may be separated from what it reveals and acquire an autonomous consistency.’’ This is indeed the allegorical attitude, since in allegory any intrinsic or organic connection between sign and signified is self-consciously broken, leaving language in an arbitrary and ‘‘autonomous’’ relationship to reference and meaning. According to Agamben, it is in this autonomous realm of language as such, ‘‘separat[ed] . . . both from the voice and pronunciation and from its reference, with its semantic value indefinitely suspended’’ that Aher/the ‘‘Other’’/Derrida finds his home: ‘‘this is the dwelling of Aher, the ‘Other,’ in Paradise.’’≤∂ But this pure dwelling in human language as such is at the same time an ‘‘exile,’’ insofar as the experience sought in this dwelling, the experience of the Shechinah, the presence of God, is at the same time a separation from the manifestation of the divinity in its totality in the nine other Sefiroth—which is to say, from human life. I do not have the time or space to follow Agamben in detail on the rich road that leads from this striking introduction to his equally striking conclusion. Su≈ce it to say for my purposes that, after posing a question that echoes with his prior critiques of Derrida—‘‘why does [Derrida’s] attempt to name the name now take the form of ‘a writing without presence and without absence, without history, without cause, without arkh¯e, without telos, absolutely dislocating all dialectics, all theology, all teleology, all ontology?’ ’’≤∑ — he answers not by criticizing the privilege granted to writing, but by identifying Derrida’s écriture (or more precisely, his notion of the ‘‘trace’’) with the supreme exemplar of writing in his own thought, one to which Agamben returns constantly—the figure of an ‘‘absolute writing that no one writes: a potential to be written, which is written by its own potential not to be written, a tabula rasa that su√ers its own receptivity and can therefore not not-

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write itself.’’ ‘‘The trace,’’ Agamben tells us, ‘‘is nothing other than the most rigorous attempt to reconsider—against the primacy of actuality and form— the Aristotelian paradox of potentiality, the gesture of the scribe who dips his pen in thought and writes solely with his potentiality (not to write).’’≤∏ Thus, in a daring move, Agamben attributes to Derrida the fundamental philosophical intention animating his own oeuvre of the past twenty years.≤π Two questions naturally present themselves. The first is, is he right about Derrida? One’s suspicions are aroused on this front by the essay’s concluding section, which equates the ‘‘trace’’ with ‘‘pure matter’’—and not only ‘‘pure matter,’’ but pure matter that is ‘‘the result of a process of materialization,’’ a ‘‘materialization’’ that is itself nothing other than thought’s experience of its own potentiality not to think.≤∫ The simultaneous echoes of the philosophy of substance and subjective idealism that resonate in these characterizations are more than su≈cient to give one pause, particularly when they are attributed to Derrida and deconstruction. The second question is, if he is right about Derrida—that is, that Derrida/Aher/the ‘‘Other’’ is the one who has ‘‘most rigorously attempted to reconsider . . . the Aristotelian paradox of potentiality’’—then who, or what, is Akiba, who ‘‘leaves Paradise unharmed’’? The latter question is more than a matter of talmudic game-playing; indeed, it is forced upon the reader by Agamben’s own text, which ends: ‘‘Thanks to Aher’s obstinate dwelling in the exile of the Shechinah, Rabbi Akiba can enter the Paradise of language and leave unharmed.’’≤Ω If Derrida has delved deepest into the fundamental problem of the relationship of potentiality to language (and a fortiori to politics as well, let us not forget)≥≠ and yet still lives in exile from supreme knowledge of the godhead, then who is it who has obtained such knowledge and yet (unlike Ben Azzai) not only lived, but (unlike Ben Zoma, who was driven mad by this knowledge) lived to tell the tale? The answer ultimately provided by Agamben’s discourse, of course, is Agamben himself, just because the position that he attributes to Derrida is not in fact Derrida’s at all, but his own. The parable of Agamben’s ‘‘Pardes’’ is thus ultimately entirely consistent with the lesson of his earlier critique of Derrida: that Derrida brought to light the ‘‘negative ontological foundation’’ of metaphysics more clearly than any thinker before him—and thus opened the possibility of identifying and surpassing it—without, however, surpassing it himself. In short, by ‘‘cutting the branches’’ of pardes, Derrida/Aher made a safe passage for Agamben/Akiba into the realm of divine knowledge. 180 adam thurschwell

Before turning to the question of what, if anything, these talmudisms and speculative philosophemes (‘‘negative ontological foundation,’’ etc.) have to do with politics in either the philosophical or practical sense, I will try to sharpen up the significance of this parable of metaphysical gardening. I do this not only because it is important in its own right to establish that Derrida’s position is in fact not at all what Agamben attributes to him, but also because it will provide one avenue into the even more important question of what Derrida’s position actually is—whether, as Agamben claims in his earlier critiques, he in fact endorses the notion of a ‘‘negative ontological foundation’’ of metaphysics, and if so, whether this endorsement constitutes a continuation rather than a rupture of the metaphysical tradition as a whole. Let me return then to Agamben’s understanding of Derrida’s ‘‘trace’’ in terms of a ‘‘pure matter’’ ‘‘materialized’’ by thought’s relationship to itself as pure potentiality. Agamben says that ‘‘[t]he potential to think, experiencing itself and being capable of itself as a potential not to think, makes itself into the trace of its own formlessness, a trace that no one has traced—pure matter.’’ I have already noted the simultaneous and paradoxical resonance of this description with two philosophical positions that are at polar extremes both from each other, and, at the same time, from deconstruction—that is, the philosophies of substance and subjective idealism. Indeed, combining all of these contraries into a single phrase, Agamben says of the trace that it is ‘‘truly something like the experience of an intelligible matter.’’≥∞ More important for my purposes, at the end of ‘‘Pardes,’’ Agamben equates this notion of the trace as a ‘‘materialized,’’ ‘‘intelligible matter’’ with the kh¯ora of Plato’s Timaeus. What is revealing about these descriptions of the kh¯ora/trace (even without, fortunately, entering into the debates over this much-debated Platonic term) is that, in an essay titled simply ‘‘Kh¯ora,’’ Derrida says precisely the opposite—or rather, as we will see shortly, almost precisely the opposite. To take only the clearest examples, he says flatly that ‘‘kh¯ora is neither sensible nor intelligible,’’≥≤ and identifies Aristotle’s treatment of kh¯ora as ‘‘matter’’ as a ‘‘problem’’ (whereas Agamben, for his part, endorses Aristotle’s understanding wholeheartedly).≥≥ The evidence could be multiplied (kh¯ora ‘‘is not, is above all not, is anything but a support or subject which would give place by receiving or conceiving, or letting itself be conceived’’—and therefore, presumably, letting itself be ‘‘materialized’’ by thought, either, etc.),≥∂ but the point ought to be clear that, whatever Derrida thinks kh¯ora is, he doesn’t think that it is ‘‘something like the experience of an intelligible matter.’’≥∑ cutting the branches for akiba

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What then does Derrida think kh¯ora is? By approaching this question, we may be able to turn Agamben’s critique itself on its head. First, and most essentially, Derrida thinks that it is not—he says that kh¯ora ‘‘does not have the characteristics of an existent, by which we mean an existent that would be receivable in the ontologic, that is, those of an intelligible or sensible existent.’’≥∏ But neither is kh¯ora the sheer opposite of the Being of beings (sensible or intelligible), either. Derrida says of kh¯ora that it would ‘‘perhaps not only be the abyss between the sensible and the intelligible, between being and nothingness, . . . nor even perhaps between being and the existent, . . . but between all these couples and another which would not even be their other.’’≥π Kh¯ora would thus not only receive and give space to the binary oppositions that define the ontological existence of beings (sensible/intelligible, essence/existence, potential/act, etc.), but would give space to that which falls without these binary oppositions entirely, so much so that it (I will use ‘‘it’’ although any pronoun will be misleading in this context) ‘‘would not even be their other.’’ Such a ‘‘beyond Being’’ complicates any conceptual schema or argument, and in particular renders any attempt to argue on behalf of ‘‘opposed positions’’ intended to mark clear places within that schema—as I have begun to do with Derrida and Agamben—suspect from the outset. By the same token, it complicates any attempt to philosophize about kh¯ora itself, since philosophy depends on a language of binary opposition for its logic and expression, even when (as it always should) it ends up struggling to surmount or surpass those binaries. As we have seen (and as I have attempted to show in greater detail in other work),≥∫ Agamben addresses this problem by remaining within an essentially ontological framework, albeit displacing that framework from the question of the Being of beings to the question of the linguistic being of beings, the ‘‘thing itself ’’ of language that (like Being in the late Heidegger) constitutes the being of beings in its very withdrawal. And thus his philosophy (including his political philosophy) remains dominated by traditional ontological categories—necessity, contingency, potentiality, and actuality—even in those moments (as in his accounts of the fundamental ethical meaning of the Nazi death camps) where ontology might appear to be utterly beside the point.≥Ω How then does Derrida handle this di≈culty in the relationship of philosophy to that which is so far beyond Being that it cannot even be described as ‘‘the other’’ of ontology and its binary oppositions? By giving it a name, a female name—kh¯ora. In his essay, in a passage that also distinguishes kh¯ora 182

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from the ‘‘ontologic’’ and therefore any proper existence as such, Derrida declines the usual usage of ‘‘the kh¯ora’’ in favor of one that treats the word as a proper, female name.∂≠ In a certain sense, this gesture is entirely true to— indeed almost repeats—Plato’s own struggle to name (the) kh¯ora, since he famously compares it/her to a nurse and mother (true to Derrida’s gesture, at a certain point in the English translation the translator begins to preserve the personal/impersonal ambiguity of the gendered French pronoun elle as ‘‘it/her’’). In another sense, however, it disrupts the entire tradition of Platonic interpretation, insofar as (the) kh¯ora has always been conceived as the least personal, most neutral ground—neither (or both) active and passive, giving and receiving, etc.—of Being and beings. By naming, and then opposing kh¯ora to the ‘‘ontologic’’ of ontology, Derrida asks, in fine, what if the truth of the Being of beings were a woman? And not just truth in general, but the truth (and the necessity)∂∞ of philosophy; and not just ‘‘a’’ woman in the sense of ‘‘any woman’’ or ‘‘some woman,’’ but a particular woman, a singular woman with her own proper name (‘‘kh¯ora’’)? Not, that is, the ‘‘other’’ (l’autre) of philosophy and its binary oppositions, but the personal Other (l’Autrui) of Levinasian ethics, or the alter ego of Husserlian phenomenology (the one being not analyzable in terms of the subject’s intentional stance). Or to be more precise yet, what if it/she were a figure that wavers indeterminately between l’autre and l’Autrui, between a ‘‘what’’ and a ‘‘who,’’ a figure with a proper name but without further determination or property of any kind,∂≤ so that these questions, in e√ect, would remain unanswerable in principle? We are already much closer to the political than it might appear: Such a figure would share a great deal with the specter of Derrida’s Specters of Marx, which similarly wavers indeterminately between ‘‘something and someone, anyone and anything, some thing [and] ‘this thing’ ’’ (and indeed, like the specter, would constitute the very ‘‘anachrony of being’’).∂≥ With a performative stroke—calling philosophy’s most formless, abstract, material, and therefore impersonal substratum, the kh¯ora, by name (‘‘kh¯ora’’)—Derrida implicates philosophy (qua ontology) in its ethical critique at (or rather before) its very origin, through a faith in language alone (the proper name as such, ‘‘separat[ed] . . . both from the voice and pronunciation and from its reference, with its semantic value indefinitely suspended,’’ as Agamben puts it in ‘‘Pardes’’).∂∂ By virtue of its dependence on the name, then, philosophy would always already also be not-philosophy; it would always stake its claim to truth and necessity too late, already tainted cutting the branches for akiba

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by an Otherness that it cannot subsume. Most important from the perspective of Agamben’s critique, this Otherness would come from language itself. Derrida’s essay begins, ‘‘kh¯ora reaches us, and as the name. And when a name comes, it immediately says more than the name: the other of the name and quite simply the other, whose irruption the name announces.’’∂∑ Thus, since it comes from language itself, this ‘‘immediate saying of the other’’ would be—to return now to the terms of Agamben’s critique—the only ‘‘immediate mediation’’∂∏ that could be brought to language by philosophy, or that the thought of the entity’s being-in-language could return to philosophy. And by the same token, far from constituting ‘‘the sole possibility of reaching a principle freed of every presupposition, including selfpresupposition,’’∂π this ‘‘immediate mediation’’ would only confirm that philosophy is indelibly presuppositional. Referring to Socrates’s continuing insistence in the Timaeus that the discussants begin again, return again to new and prior origins (in the form of earlier discussions, more basic premises, more original cosmogonic causes, and so on), Derrida says: ‘‘Let us take things up again from farther back, which can be translated thus: let us go back behind and below the assured discourse of philosophy, which proceeds by oppositions of principle and counts on the origin as a normal couple. We must go back toward a preorigin which deprives us of this assurance and requires at the same time an impure philosophical discourse, threatened, bastard, hybrid.’’∂∫ But why? Why must ‘‘we’’—that is, Socrates and we other philosophers and lovers of knowledge—go ever backward toward that preorigin (for example, kh¯ora)—that forever recedes and eludes our (philosophical) grasp, and that thus gives philosophy its bastardized, ‘‘presuppositional’’ form? Is it the love of knowledge that drives us onward? Or is it the love of kh¯ora it/herself—that is, that ‘‘metaphysical desire’’ for the Other (l’Autrui) identified by Levinas that exceeds the grasp of any knowledge?∂Ω Either way, this love is doomed—at least if one measures success in love by the capture of one’s object—but a great deal still turns on which of these questions determines one’s understanding of the philosophical project. If, like Derrida, one interprets philosophy’s desire for the origin (or rather for the preorigin) as love of the Other, then one will conclude with him that ‘‘[t]hese traits’’—philosophy’s ‘‘threatened, bastard, hybrid’’ status—‘‘are not negative.’’∑≠ Indeed, on this view they are what gives philosophy its original relationship to lived life itself, the Other of thought, the vita activa distinct from the vita contemplativa, even while stripping philosophy of any claim 184 adam thurschwell

to priority over that life. But if, like Agamben, one fails or declines to recognize the ethical (in the Levinasian sense) origin of philosophy’s presuppositional drive toward its own (pre)origins, then ‘‘these traits’’—philosophy’s preoriginary taint by its Other—will indeed appear as ‘‘negative,’’ as a failure of philosophy’s and thought’s own original project of obtaining supreme knowledge, of ‘‘entering the Garden and leaving unharmed.’’ And when die Sprache spricht, all one will hear is the saying of the ‘‘negative ontological foundation,’’ the abyss of a language ‘‘separat[ed] . . . both from the voice and pronunciation and from its reference, with its semantic value indefinitely suspended,’’ rather than the naming of the name that ‘‘immediately says more than the name: the other of the name and quite simply the other, whose irruption the name announces.’’ Philosophy, in the form of thought (‘‘thought thinking itself,’’ as Agamben regularly expresses it), will retain its priority over life, even while its relationship to lived life will appear as Agamben presents the relationship of sovereignty (which, it must be recalled, stands ontologically in the place of both metaphysics and language) to life in Homo Sacer, that is, as a parasitism in which law (philosophy) ‘‘nourishes itself on [life] and is a dead letter without it.’’∑∞ The implications of these two interpretations for political philosophy are significant. This is not only a matter of deciding between politics as romantic eschatology and politics as a grasping of practical opportunities for action in the here and now.∑≤ It is about what—or, in the abstract sense of the personal Other, ‘‘who’’—determines our politics. Is politics in its essence a matter of ontology or of ethics? The distinction between these interpretations is between one that takes fundamental ontology as first philosophy and one that takes ethics in the Levinasian sense as first philosophy—which is to say, paradoxically, nonphilosophy as first philosophy. That Agamben is deaf to Levinas’s claim of ethics as first philosophy is apparent wherever his thought comes in contact with it. To take one small but telling example, in a discussion arguing that Levinas’s ‘‘critique of ontology . . . really only brings to light the fundamental negative structure of metaphysics’’ (the same claim that he makes about Derrida), one reads with bemusement the concluding caveat that, ‘‘[h]owever, the accent that Levinas placed on ethics was not treated in the context of this seminar.’’∑≥ A clearer example of a failure to comprehend that ‘‘the accent that Levinas placed upon ethics’’ in fact constituted his ‘‘critique of ontology’’ can hardly be imagined. Similarly, Agamben’s claim in Remnants of Auschwitz that ‘‘[t]he gesture of assuming responsibility [in Levinas’s sense] cutting the branches for akiba

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is . . . genuinely juridical and not ethical’’ rests on the same failure to recognize in Levinasian ethics per se a critique of ontology.∑∂ How can one account for such an apparent failure of understanding in a thinker of Agamben’s brilliance? It ought to be said in this regard that Agamben is hardly alone in being deaf to the philosophical implications of Levinas’s discourse on the otherness of the Other. Whatever the characteristic that governs the distinction between those who find Levinas’s thought attractive and those who do not, philosophical astuteness does not appear to be it. Rather, it is precisely the fact that Levinas’s (and Derrida’s) properly philosophical point is essentially improper from the perspective of philosophy that renders it invisible; indeed, it renders Levinas’s thematization of philosophy as ethics indefensible, at least in the vocabulary of properly philosophical discourse. But since the Derridian/Levinasian point is precisely that there is no such thing as ‘‘properly philosophical discourse,’’ how is one to decide the issue between philosophy and its (ethical) other? The answer is that one cannot, at least in the definitive form of ‘‘answer’’ presupposed by philosophical knowledge. But that is not to say that no answer is available. If philosophy is indeed indelibly tainted by its Other, then traces of this Other ought to be found wherever philosophy makes its claims, and perhaps especially where it makes its strongest claims. Thus if one can detect in Agamben’s own thought traces of its ostensible Other in the form of a Levinasian ethics of responsibility—as I (and others, in different ways) have tried to suggest is possible∑∑ —then this provides some evidence (as Derrida points out, quoting Plato, outside the realm of philosophy proper one can no longer speak with certitude about what is necessary but only in ‘‘probable a≈rmations’’)∑∏ that philosophy’s ‘‘presuppositional’’ form is in fact ‘‘not negative,’’ but instead generative of the very philosophical discourse that then turns upon it and dismisses it as (philosophically) inadequate. At the same time, one must keep in mind Agamben’s essential identifications of philosophy and politics on one hand and Being and sovereignty on the other. More importantly, then (more importantly, at least, if the raison d’être of political philosophy is politics and not philosophy), if I am correct, traces of ethical priority and responsibility in the Levinasian-Derridian sense ought also to be discernible, however ambiguously, wherever sovereignty stakes its strongest claims to the ‘‘bare life’’ of homo sacer within the sphere of properly juridico-political discourse as well.∑π One such sphere is the American law of capital punishment. The prisoner 186 adam thurschwell

condemned to die is among Agamben’s prime examples of a contemporary homo sacer, and one might think that the legal process through which a person attains this status ought therefore to be distinguished by that ‘‘decision on the exception’’ that is the hallmark of sovereignty within Agamben’s schema. And indeed, the consensus view within the legal academy is that the ostensibly heightened procedural protections for capital defendants that the United States Supreme Court has imposed since reinstituting capital punishment in 1976 amount to little more than a smoke screen for the same, unfettered discretion to kill that characterized the administration of the death penalty before it was temporarily outlawed in 1972—a combination of extreme procedural and doctrinal complexity in theory and absolute arbitrariness in practice that could very aptly be described as a law that is ‘‘in force without significance’’ in precisely Agamben’s sense.∑∫ Yet, at the same time, there remain within the corpus of the Supreme Court’s capital jurisprudence doctrines that suggest a very di√erent understanding of capital punishment—an understanding that can only be called ‘‘ethical’’ (in Levinas’s sense) rather than legal. To cite the most obvious example, in Caldwell v. Mississippi,∑Ω the Supreme Court confronted a situation in which the prosecutor had told the capital sentencing jury that it was not ultimately responsible for the sentencing decision because its decision was subject to review by an appellate court. The prosecutor thus urged in e√ect that the jury could sentence the defendant to die in good conscience, resting in the knowledge that someone else—judges with technical expertise in this complex area of law that far outstripped the understanding of any lay juror— would correct their mistake if the jurors got it wrong. Citing ‘‘the truly awesome responsibility of decreeing death for a fellow human,’’∏≠ the Supreme Court reversed the death sentence and held that displacing the sentencing jury’s responsibility to determine for itself a capital defendant’s individual deserts to live or die onto the technical legalities of appellate reviewability violated the United States Constitution.∏∞ Caldwell is in one sense an astonishing case: a formal legal recognition of the inadequacy of formal law (the conceded technical-legal superiority of the appellate court) to answer the most fundamental question of life or death that the law must confront, combined with an insistence that the jurors shoulder a responsibility that resembles nothing so much as ethics in Levinas’s sense—a responsibility placed upon each one of them singularly and alone, to confront the singularity of the defendant’s life and weigh it against the heinousness of the crime, without the benefit of any normative cutting the branches for akiba

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guidance (in legal or any other form) whatsoever. Its holding is simultaneously inarguable (who could seriously propose that a capital sentencer who felt no ultimate responsibility for her decision was legitimate?) and inexplicable, or at least legally inexplicable, insofar as the case implicitly repudiates the e≈cacy of law alone to answer the ultimate question of sovereign power. To that extent it represents a recognition of an ethical responsibility to the Other presupposed even by law in its ultimate moment, inscribed at the heart of the sovereign’s discourse about its sovereign right to kill. Of course, there is also another reading of the case that brings it back into alignment with Agamben’s understanding of sovereignty. Just because Caldwell repudiates the e≈cacy of normative law to answer the question of the sovereign’s right to kill in a particular case, it can also be seen as rea≈rming the fundamental connection between the state of exception and the state’s power over the life of the person—that is, the doctrine of homo sacer. On this reading, Caldwell can be understood as saying that, at the limit, sovereignty cannot be constrained by normative law in any form, and necessarily makes its ultimate decision—‘‘on the human and the inhuman, on ‘making live’ or ‘letting die’ ’’∏≤ —in a state of exception. All that divides these two readings from each other is the paradoxical notion that law needs to presuppose a responsibility so singular that it cannot subsume it within its own general discourse without its instantly losing all of its legitimacy. Yet by the same token, this presupposition must remain permanently suspect, or even invisible, from the perspective of law and the rationality that otherwise subtends it. And thus nothing prevents the suspicious or the rational person—including especially those whose suspicion and insistence on rationality, reason, argumentative validity, etc., arise from the noblest of political motives—from dismissing this apparent need for law to cite a supra-legal and pre-legal responsibility as cynicism, pretense, and ideology. Who indeed could or would argue against the force of such an accusation, in the face of a capital jurisprudence that is undeniably and overwhelmingly characterized by just these attributes? What then are we to make of this fragile, virtually invisible supplement of ethical responsibility, so fragile that it can hardly be named, discussed, or characterized without losing its essential character, and thus remains, fundamentally, without ‘‘force’’ of any kind, whether legal, normative, or otherwise? Can any of this possibly matter, down on the ground where concrete political decisions and legal arguments have to be made? 188 adam thurschwell

In fact a great deal turns on how or whether one incorporates this fragile supplement—this ‘‘arkh¯e-origin’’ of the law, to use Derridian terminology— into one’s political and legal practice. At fundamental stake here is the question of whether the law must be viewed as politically irredeemable, and therefore something to be overcome in its entirety (be rendered ‘‘indistinguishable from the life over which it ought to rule,’’ in one of Agamben’s formulations),∏≥ or rather whether one will agree with Derrida that a legitimate political praxis need not ‘‘suspect the juridical idea in itself.’’∏∂ If the law itself incorporates its ethical Other, then there remain politically valid resources within the law to use against the law. To stay with the example of capital punishment, one will be able to believe in good faith that legal arguments aimed at the reform of capital punishment—that is, short of full abolition, aimed at making death sentences and executions more di≈cult to obtain and so on—is a legitimate political goal and not simply and necessarily a faulty political strategy that only serves to legitimate and entrench a politically illegitimate practice. The a√ective importance of this belief ought not be underestimated, since, for the practicing capital defense lawyer, abandoning it means in e√ect abandoning any good-faith belief in the legal arguments one musters to try to save the life of one’s client—never an e√ective attitude for a lawyer to adopt. But is there any reason to think that this attitude is anything more than self-willed naiveté, even if a strategically and professionally necessary one? Again, there is not, if ‘‘reason’’ requires something like the conclusive arguments of philosophy. Nevertheless, there are traces of an a≈rmative answer within the law itself. Caldwell is hardly the only case that speaks of the legal decision to kill in terms of ‘‘responsibility’’ or ‘‘morality’’ or terms that otherwise contravene an interpretation that sees the ‘‘pure form of law’’ in the state of exception.∏∑ The Supreme Court has even acknowledged—in a case overturning another death sentence—that ‘‘[f ]rom the point of view of society, the action of the sovereign in taking the life of one of its citizens di√ers dramatically from any other legitimate state action.’’∏∏ Like the language and holding of Caldwell, this quote represents a formal invitation to the creative capital defense lawyer to call the sovereign to ethical account even in the supreme moment of its sovereign prerogative, where normative law has otherwise been left far behind, as a matter of legal right. Of course, like the language of ‘‘responsibility’’ of Caldwell, this quote can also always be given another, more sinister and more Schmittian interpretation. No appeal to the ethical (in the Levinasian sense) can ever be authoritacutting the branches for akiba

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tive in a manner that will exclude its abuse, whether theoretical or practical; its characteristic form—indeed its ‘‘pure form’’—is to be both ‘‘without significance’’ and without ‘‘force.’’ It is for that reason that Agamben is quite right in identifying Derrida with a figure, Aher, the Other, who lives in ‘‘exile’’ from ‘‘supreme knowledge.’’ No knowledge can ever guarantee the e≈cacy of a genuinely ethical appeal (which is also why so much of Derrida’s political writing turns around the category of the ‘‘perhaps’’).∏π Rather, ‘‘supreme knowledge of the godhead’’ (or rather, its illusion) is reserved for those who believe that philosophy can exclude the Other from its domain— or in Agamben’s terminology, can eliminate its own presuppositional form by appropriating its final and ultimate presupposition. If the endless attempt to retrieve this final end appears as a failure from the perspective of philosophy, however, from the perspective of ethics it is the good itself—a sign of the alterity inscribed in the here-and-now of Being that allows for hope, and therefore motivates action. Or to put it another way, philosophy’s presuppositional form might even be—again, no guarantees outside of philosophy— the sign of a salutary independence of politics from its philosophical master. notes 1 Giorgio Agamben, Potentialities: Collected Essays in Philosophy, trans. Daniel HellerRoazen (Stanford: Stanford University Press, 1999), 85; see also Giorgio Agamben, Means without End: Notes on Politics, trans. Vincenzo Binetti and Cesare Casarino (Minneapolis: University of Minnesota Press, 2000), 11, 12. 2 See Adam Thurschwell, ‘‘Specters of Nietzsche: Potential Futures for the Concept of the Political in Agamben and Derrida’’ (abbreviated version), Cardozo Law Review 24 (2003): 1193, full version available at www.law.csuohio.edu/faculty/ thurschwell/nietzsche.pdf. 3 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Stanford: Stanford University Press, 1998), 49–50, 54. 4 Agamben, Homo Sacer, 53. 5 Agamben, Homo Sacer, 56. 6 In the essay ‘‘The Messiah and the Sovereign: The Problem of Law in Walter Benjamin,’’ from which this section of Homo Sacer is largely extracted, Agamben describes deconstruction as a ‘‘petrified or paralyzed messianism, that, like all messianisms, nullifies the law, but then maintains it as the Nothing of Revelation in a perpetual and interminable state of exception, the ‘state of exception’ in which we live’’ (in Potentialities, 171). 7 Indeed, as is discussed in the text infra, Agamben has devoted an admiring essay 190

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to Derrida’s work (Agamben, Potentialities, 208—19), as well as dedicating several essays and fragments to him. Potentialities, 27; Giorgio Agamben, Idea of Prose, trans. Michael Sullivan and Sam Whitsitt (New York: State University of New York Press, 1995), 103. Derrida, for his part, has included Agamben in a list of ‘‘friends.’’ Jacques Derrida, Politics of Friendship, trans. George Collins (London: Verso, 1997), 225, n. 10. 8 I have examined this charge elsewhere in a broader context (Thurschwell, ‘‘Specters’’), where I argue that the ultimate significance of Agamben’s critique lies in what it reveals about the two very di√erent conceptions of the ethical that undergird the two writers’ respective concepts of the political. Very schematically, I try to show there that Agamben’s political philosophy retains the Heideggerian understanding of ethics as ¯ethos, ‘‘dwelling’’ (albeit transposed ingeniously into the sphere of pure language, ‘‘language as such,’’ in place of Being), and, as a result, issues in a concept of the political whose structure is determined by the form of fundamental ontology, up to and including an insistent eschatological motif (for example, the necessity of ‘‘thinking the end of the state and the end of history together and . . . mobilizing the one against the other,’’ as he puts it in Homo Sacer, 60) whose closest model (albeit ‘‘still insu≈cient,’’ Agamben says) is Heidegger’s notion of Ereignis, the ‘‘final event or appropriation . . . in which what is appropriated is Being itself ’’ (Homo Sacer, 60). Derrida’s political writings of the past fifteen years, by contrast, depart not from Heidegger’s notion of ¯ethos as ‘‘dwelling,’’ but from Emmanuel Levinas’s ethics of responsibility—ethics not as authentic ‘‘dwelling’’ but rather as the impossible relationship with the Other who ‘‘disturbs the being at home with oneself [le chez soi]’’ (Emmanuel Levinas, Totality and Infinity: An Essay on Exteriority, trans. Alphonso Lingis [Pittsburgh: Duquesne University Press, 1969])—and result in a political stance that takes its bearings not from ontology, but from ‘‘hauntology’’ (the French hantologie being a characteristically Derridian pun on its homonym ontologie): a ‘‘logic of haunting [that] would not be merely larger and more powerful than an ontology or a thinking of Being . . . [but] would harbor within itself, but like circumscribed places or particular e√ects, eschatology and teleology themselves’’ (Jacques Derrida, Specters of Marx: The State of the Debt, the Work of Mourning, and the New International, trans. Peggy Kamuf [New York: Routledge, 1994]). What issues from Agamben’s philosophical framework is a messianic concept of the political that posits as its historical goal the end tout court of law and the state form (and indeed every authoritative historical tradition, if not history itself ). Derrida’s political ‘‘messianic without messianism,’’ by contrast, does not bring an end to law, the state, or (political) history, but cutting the branches for akiba

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comprises a structural openness inscribed in every historical moment of the (legal, political, etc.) tradition that opens onto what is beyond that tradition, and thus constitutes an ever-available opportunity for the tradition’s radical revision, whether in the form of new interpretations or new actions of a more material kind that transform the tradition’s institutions, practices, and so on. In short, rather than a messianic demand in the eschatological sense, Derrida’s political philosophy ‘‘issues in an identification of an existing crack or rupture in the edifice in question . . . , a flaw that represents, one might say, not a messianic future task so much as an opportunity for thought and for politics in the here-and-now’’ (Thurschwell, ‘‘Specters,’’ 73 [on-line version] and 1234 [print version]). The present essay to a certain extent supplements and presupposes this prior work. I should note that in subsequent work on the Pauline letters not addressed in my earlier paper, Agamben has insisted on a distinction between ‘‘eschatological time’’ and ‘‘messianic time,’’ between the ‘‘end of time’’ and what he calls the ‘‘time of the end’’ or the ‘‘time that remains’’ (‘‘il tempo che resta’’) (Giorgio Agamben, Il tempo che resta: un commento alla Lettera ai Romani [Turin: Bollati Boringhieri, 2000]; translated in part in Giorgio Agamben, ‘‘The Time That Is Left,’’ Epoché 7, no. 1 [2002]: 1–14). It seems to me that if brought to bear on the political writings, this elaboration and clarification of his earlier esoteric-theological work would significantly complicate and amend the political-eschatological drift that remains prevalent in Homo Sacer, and indeed would bring him very close to Derrida’s understanding of the political import of messianism. I cannot, alas, address this new work here, however. 9 Thurschwell, ‘‘Specters.’’ 10 Giorgio Agamben, Language and Death: The Place of Negativity, trans. Karen E. Pinkus and Michael Hardt (Minneapolis: University of Minnesota Press, 1991), 39. 11 Agamben, Language and Death, 39. 12 See Agamben, Potentialities, 39. 13 See Agamben, Homo Sacer, 50. 14 See Agamben, Potentialities, 47. 15 Agamben, Potentialities, 35. 16 Agamben, Potentialities, 47. 17 Agamben’s argument is that in philosophical thought since Aristotle, writing has, on one hand, been deemed to signify only in the form of an explicit reference to something that is past—as a record of a voice once spoken, a thought once formed, the motion of a hand that once moved across a paper, and so on. Thus since any given writing takes on meaning only by this attribution of a past ‘‘something’’ to it, writing itself is the preeminent signifier of ‘‘something else 192

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past,’’ that is, of presupposition. Yet, on the other hand and at the same time, writing—in the form of the letter—has also been interpreted as the immediate ‘‘stu√ ’’ of linguistic signification itself, not only in its own form (writing), but in the spoken voice as well, since the letter, in its immediacy as an articulated sound, also constitutes the individual phonematic element of the voice, insofar as the voice is itself construed to be made up of such articulated sounds. As the letter both signifies and constitutes the basic element of the voice, then, Agamben says that the letter ‘‘is the element of that which it is the sign.’’ As such, moreover, it becomes the privileged sign, the index sui, the self-demonstrating signifier that simultaneously ‘‘says’’ and ‘‘shows’’ itself. But what this privileged signifier says and shows is itself (as element) always in the past; ‘‘it shows itself, but only insofar as it was in the voice, that insofar as it already belongs to the past’’ (Agamben, Potentialities, 37). Agamben devotes an astonishing (and regrettably out of print in its English edition) book, Language and Death, to tracing the philosophical legacy and consequences of this interpretation of the voice, most notably in Hegel and Heidegger, as ‘‘always already past.’’ 18 Agamben, Potentialities, 37. 19 Agamben, Potentialities, 44. 20 Agamben, Potentialities, 205–19. 21 Agamben, Potentialities, 205. 22 Agamben, Potentialities, 205. 23 Agamben, Potentialities, 206. 24 Agamben, Potentialities, 207. 25 Agamben, Potentialities, 214. 26 Agamben, Potentialities, 216; for the parallel reference in Homo Sacer, see 45. 27 See in this regard, for example, the title and individual essays in Agamben’s Potentialities, as well as the critical role played by ‘‘potentiality’’ and ‘‘impotentiality’’ in his Homo Sacer, 39–48. 28 Agamben, Potentialities, 218. 29 Agamben, Potentialities, 219. 30 See Agamben, Homo Sacer, 46. 31 Agamben, Potentialities, 218. 32 Jacques Derrida, ‘‘Kh¯ora,’’ trans. Ian McLeod, in On the Name, ed. Thomas Dutoit (Stanford: Stanford University Press, 1995), 96. 33 Derrida, ‘‘Kh¯ora,’’ 127; see Agamben, Potentialities, 218. 34 Derrida, ‘‘Kh¯ora,’’ 95 (my emphasis). 35 Agamben, Potentialities, 218. 36 Derrida, ‘‘Kh¯ora,’’ 97. cutting the branches for akiba

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37 Derrida, ‘‘Kh¯ora,’’ 104 (emphasis original). 38 Thurschwell, ‘‘Specters.’’ 39 See, e.g., Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive (Homo Sacer III), trans. Daniel Heller-Roazen (New York: Zone Books, 1999), 146–48. 40 Derrida, ‘‘Kh¯ora,’’ 96–97. 41 See Derrida, ‘‘Kh¯ora,’’ 126. 42 Derrida, ‘‘Kh¯ora,’’ 99. 43 Derrida, Specters of Marx, 6; Derrida, ‘‘Kh¯ora,’’ 94; compare Specters of Marx, 22. 44 Agamben, Potentialities, 207. 45 Derrida, ‘‘Kh¯ora,’’ 89. 46 Agamben, Potentialities, 47. 47 Agamben, Potentialities, 47. 48 Derrida, ‘‘Kh¯ora,’’ 126. 49 Levinas, Totality and Infinity, 34. 50 Derrida, ‘‘Kh¯ora,’’ 126. 51 Agamben, Homo Sacer, 27. 52 See Thurschwell, ‘‘Specters,’’ note 8. 53 Agamben, Language and Death, 40. 54 Agamben, Remnants, 22. 55 See Thurschwell, ‘‘Specters,’’ 100–110; see also Peter Fitzpatrick, ‘‘Bare Sovereignty: Homo Sacer and the Insistence of Law,’’ in this volume (discussion of constitution of homo sacer by law), and Catherine Mills, ‘‘An Ethics of Bare Life: Agamben on Witnessing,’’ Borderlands 2, no. 1 (2003), which discusses traces of the Levinasian ethics of responsibility in Remnants of Auschwitz. 56 Derrida, ‘‘Kh¯ora,’’ 125. 57 And they remain discernible, it seems to me, in Agamben’s more recent work in the Homo Sacer vein as well. Here I can cite only one indication of such a trace, in his contribution to the present volume, ‘‘The State of Exception.’’ In this essay, Agamben demonstrates the topological contortions seemingly inherent in the very notion of the state of exception illustrated by Benjamin and Schmitt’s exchanges. At the same time—although I think this is less clearly the focus of his attention—he also demonstrates the paradoxical relationship of this paradoxical topology to the possibility of knowledge, philosophical or political. The state of exception can either be recognized and analyzed as the defining exercise of sovereign violence—in which case it cannot be located either within or without the legal order, but only as a threshold of sorts that is both and neither inside nor outside (Schmitt). Or, the ‘‘real state of exception’’ (the wirkliches Ausnahmezustand of the eighth of Benjamin’s ‘‘Theses on the Philosophy of History,’’ which may 194

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also be identified with the pure, divine violence, reine Gewalt, of his ‘‘Zur Kritik der Gewalt’’) can be definitively located outside of the locus of sovereign power (rechsetzende and rechtserhaltende Gewalt)—in which case, however, it is an undecidable question in any particular case whether what one is looking at is an occurrence of reine Gewalt or mere profane, sovereign violence (Benjamin). In either case (and the undecidables that Agamben documents in this essay extend beyond these schemas), what appears to be decisive is a bar on the possibility of a ‘‘supreme knowledge’’ that would allow one to determine either in the general or in the particular case the relationship of law to violence or politics to violence, and whether the end of politics ought to be the final and absolute overcoming of violence or the final and absolute manifestation of violence (as reine Gewalt). As a result of these multiple undecidabilities, Agamben can only conclude his essay with a series of questions going to the very heart of the concept of ‘‘the political’’ in the Western tradition—in particular, the persistent questions of the puzzling yet apparently inextricable linkage of the nomos with anomic violence, and ultimately of what it means to act politically at all. The urgency with which Agamben poses these questions seems to me entirely warranted, and his essay discloses in an exceptionally clear way the high stakes of the oblique debate between Benjamin and Schmitt. Yet, without disagreeing, I would put a di√erent gloss on his exposition. What if the key to the political did not lie, as Agamben here suggests, in finding answers to these concluding questions, but instead in that very urgency with which these questions impose themselves, an urgency—shall we call it responsibility?—which precedes and calls forth these questions in the first instance? What I have in mind is that ‘‘preoriginary pledge ( gage)’’ that Derrida identifies in Heidegger’s later texts on language, in which, reversing field from his consistent formulations in Being and Time through ‘‘The Question Concerning Technology,’’ Heidegger declares that ‘‘the authentic attitude of thinking is not a putting of questions—rather, it is a listening to the grant [Zusage], the promise of what is to be put in question’’ (Jacques Derrida, Of Spirit: Heidegger and the Question, trans. Geo√rey Bennington and Rachel Bowlby [Chicago: University of Chicago Press, 1989], 130; Martin Heidegger, ‘‘The Nature of Language,’’ in On the Way to Language, trans. Peter D. Hertz [New York: HarperCollins, 1971], 71). Those undecidabilities and perennially unanswered questions that Agamben so thoroughly documents would be the trace in language and in politics of what cannot be decided or answered in language or politics (and thus made the subject of philosophical or political knowledge), but which first calls us to respond—to speak, to act, to question. The essence of politics, in other words, would not lie in the answers called for by cutting the branches for akiba

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Agamben’s political questions and question of the political, but in the fact that these questions are themselves always already responses, and thus signs of a responsibility anterior to every (political) question. There is a political ideal of sorts implicit in this strange fact that whenever we speak, even to raise the most originary of questions, we are always already responding or acquiescing to an anterior call or demand. (See Derrida, Of Spirit, 129.) In his first essay on Levinas, Derrida alludes to this quasi-political quasiideal in the course of a meditation on—significantly for my purposes—the death or death-agony of philosophy, ‘‘the violent way that it opens history by opposing itself to nonphilosophy, which is its past and its concern’’ (Jacques Derrida, ‘‘Violence and Metaphysics: An Essay on the Thought of Emmanuel Levinas,’’ in Writing and Di√erence, trans. Alan Bass [Chicago: University of Chicago Press, 1978], 79). There he calls it the ‘‘community of the question about the possibility of the question,’’ the community constituted and maintained ‘‘within that fragile moment when the question is not yet determined enough for the hypocrisy of an answer to have already initiated itself beneath the mask of the question’’ (Derrida, Writing and Di√erence, 80). It is the fragile, ‘‘threatened’’—indeed, impossible in principle—possibility of such a community which, Derrida says, poses an ‘‘unbreachable responsibility’’ that ‘‘authorizes every ethical law in general’’: ‘‘unbreachable’’ because we know that despite its impossibility, this ‘‘impossible has already occurred.’’ There is in fact ‘‘a realized tradition of the question remaining a question’’ that testifies to the antecedent responsibility enclosed and dissimulated within the questioning language of philosophy (Derrida, Writing and Di√erence, 80). It seems to me that in an exemplary manner, by revealing the undecidable oppositions that structure our basic concepts of politics, by interrogating in an original way the relationship between the question of fundamental ontology and the question of the political, and above all by the urgency with which it pursues this thinking, Agamben’s work stands firmly in this ‘‘realized tradition,’’ even if the Levinasian notion of an always-anterior ethical responsibility at the heart of the political is otherwise anathema to its express thematics. 58 For the most comprehensive and articulate defense of this view, see Carol Steiker and Jordan Steiker, ‘‘Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment,’’ Harvard Law Review 105 (1995): 355. 59 472 U.S. 320 (1985). 60 Caldwell, 472 U.S. at 329–30. 61 Caldwell, 472 U.S. at 322; see also 328–29 (‘‘[I]t is constitutionally impermissible

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to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere’’). 62 Agamben, Remnants, 147. 63 Agamben, Homo Sacer, 53. 64 Derrida, Specters of Marx, 84. 65 Agamben, Homo Sacer, 51. 66 Gardner v. Florida, 430 U.S. 349, 357–58 (1977). 67 See generally Derrida, Politics of Friendship.

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linguistic survival and ethic alit y Biopolitics, Subjectification, and Testimony in Remnants of Auschwitz The question of an ethics pertaining to the survival of the subject in language has taken on a new prominence within contemporary theory with the publication of Giorgio Agamben’s Remnants of Auschwitz.∞ In this provocative text, Agamben engages with the subject’s constitution and survival within language as a specifically ethical problem and develops an ethics of testimony based on an unassumable yet unavoidable ‘‘nonresponsibility.’’ Agamben casts Remnants as an attempt to erect ‘‘signposts’’ for the exploration of a new ethical terrain ‘‘beyond culpability and guilt,’’ which he does through considering the aporetic structure of testimony. His privileged figure of the new horizon of ethics is the Muselmann of Nazi concentration camps, who, he argues, put into question the very ‘‘humanity of the human’’ and thus the ethical material of testimony. In taking the Muselmann as the limit-figure of the human and hence of ethics, Agamben argues that testimony arises in the disjuncture of the human and inhuman— the speaking being and living being respectively. This disjuncture is revealed in the simultaneous subjectification and desubjectification e√ected in the living being’s entering into the enunciative event of ‘‘I,’’ which in turn reveals that shame is the principal emotive tonality of the subject. Interestingly, it is the a√ect of shame that carries the imperative to bear witness—figured through something ‘‘like’’ an a√ective apostrophe, in which the subject is called to witness its own ruin. In this, bearing witness is cast as simultaneously unavoidable and unassumable: what Agamben is concerned with is the articulation of an ethical responsibility or ‘‘non-responsibility’’ that cannot be avoided by the subject, but cannot, even for that, be fully taken on by the subject. Thus, the unassumable responsibility of bearing witness ultimately appears central to the subject’s emergence in language, as what is ‘‘most intimate’’ to it. Despite the claim that testimony heralds a new terrain of ethicality, several problems emerge in the attempt to secure a sense of unassumable, unavoidable responsibility for the survival of the subject in language, which 198

in large part revolve around Agamben’s account of subjectification and linguistic survival. In particular, while an account of the relation that the subject bears to others seems intuitively central to an account of witnessing, this dimension of ethicality cannot be easily brought out in Agamben’s account. This is because he models ethicality as an auto-a√ective relation that does not easily yield an account of relations to others. Further, in casting the principal question of an ethics of witnessing as ‘‘what speaks,’’ Agamben e√ectively forecloses the relationality of ethics within his analysis. To bring out these problems, I juxtapose Agamben’s formulation of an ethics of witnessing with Adriana Cavarero’s account of a ‘‘relational ethics of contingency’’ established in the narratability of unique selves. Cavarero’s ethics are built around the problem of ‘‘who’’ speaks, which allows a form of ethicality that can be understood as exposing and responding to the specific lived life of a unique existent. I suggest then that Cavarero’s account of narratable selves may help to throw critical light on the philosophical exclusions enacted within Agamben’s text and highlight the particularity of the self as the motivator of ethicality over and against his concern with witnessing the inhuman in the human. In the first two sections, I develop an interpretation of two of Agamben’s central claims, the first of which is the association that he makes between testimony and the categories of bios and zo¯e, which are key terms in his account of biopower. The second is the account of subjectification and testimony that he develops, and particularly his figuration of shame as that which speaks in testimony. In the third section, I develop my critical claims from these interpretations, to show the way in which Agamben’s focus on ‘‘what speaks’’ results in important philosophical exclusions within his work. I use Cavarero’s account of narratability to bring these out and suggest that the ethics that she develops might o√er an important counterposition to Agamben. However, I should point out that this juxtaposition of Agamben and Cavarero raises more questions than I am able to fully deal with here. Rather than provide an exhaustive discussion of these questions, then, my aim here is simply to highlight some di≈culties in Agamben’s ethics of testimony and suggest possible directions for further critique.

Testimony as an Ethics of Survival Having argued in Homo Sacer that the concentration camp operates as the nomos of the earth,≤ the biopolitical space par excellence, Agamben in Remlinguistic survival and ethicality

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nants takes the condition of the camps as the starting point for a reconsideration of ethics in light of the biopolitical separation of bios and zo¯e, or political life and biological life respectively. Structured as a comment on Primo Levi’s essays on the status of the survivor and the ethics of bearing witness that he suggests, Remnants gives philosophical elaboration to the intuitions that illuminate Levi’s ethics. Agamben argues that ethics can no longer be thought through the fundamentally juridical categories of responsibility or dignity, but must instead be sought in a terrain before judgment, a terrain in which the conditions of judgment are suspended through the indistinction of the human and the inhuman. Locating the figure of the Muselmann at the zone of indistinction between the human and the inhuman, Agamben elaborates on Levi’s paradox that the Muselmann, the one who cannot speak, is the true witness of the camps.≥ Agamben’s reflection on this paradox yields an account of ethics as witnessing the collapse of the distinction between the human and inhuman in the biopolitical condition of contemporary politics (Remnants, 17).∂ One of the central concerns in Remnants, then, is whether there is in fact a ‘‘humanity of the human’’ over and above the claim to belong to a biological species, which would provide a secure anchorage point for an ethics appropriate to the dilemma presented by Auschwitz and the Muselmänner. To address this concern, Agamben argues against understanding the status of the Muselmann as a threshold state between life and death, and claims instead that the Muselmann is more correctly understood as the limit-figure of the human and inhuman. Rather than simply being a death camp, Auschwitz is the site of an extreme biopolitical experiment, wherein ‘‘the Jew is transformed into a Muselmann and the human into a non-human’’ (Remnants, 52). However, as the threshold between the human and the inhuman, the figure of the Muselmann does not simply mark the limit beyond which the human is no longer human. Agamben argues that such a stance would merely repeat the experiment of Auschwitz that places the Muselmann outside the limits of the human and the moral status that attends the categorization. Instead, the Muselmann indicates a more fundamental indistinction between the human and the inhuman, in which it becomes impossible to distinguish them from each other. The Muselmann is an indefinite being in whom (or indeed, in which) the distinction between humanity and non-humanity, as well as the moral categories that attend the distinction, are brought to crisis: Agamben characterizes the Muselmann as ‘‘the non-human who obstinately appears as

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human: he is the human that cannot be told apart from the inhuman’’ (Remnants, 56–69, 82). The question to be addressed, then, is how Agamben understands the distinction between the human and the inhuman. In this, he proposes that the human being exists as the nodal point for ‘‘currents of the human and inhuman.’’ He states that ‘‘human power borders on the inhuman; the human also endures the inhuman. . . . humans bear within themselves the mark of the inhuman. . . . their spirit contains at its very center the wound of non-spirit, non-human chaos atrociously consigned to its own being capable of everything’’ (Remnants, 77). Being human is fundamentally conditioned by an indefinite potentiality for being non-human, for being capable of everything and of enduring the inhuman. Being human is a question of enduring, of ‘‘bearing all that one could bear,’’ and surviving the inhuman capacity to bear everything. Thus, the distinction between the human and inhuman is itself constitutively unstable, since the inhuman is not only internal to the human being, but requires a certain endurance for the human being to remain human. This endurance takes the form of testimony. According to Agamben, testimony plays a constitutive role in the circulation of the human and inhuman, since remaining human is ultimately a question of bearing witness to the inhuman: ‘‘human beings are human insofar as they bear witness to the inhuman’’ (Remnants, 121). To endure the inhuman is to bear witness to it, and it is in this sense that Levi speaks of the Muselmann as the true witness, for the Muselmänner have endured the inhuman, borne more than they should ever have had to bear, and in doing so, remained fundamentally human. Correlatively, the survivors are human to the extent that they bear witness to an impossibility of bearing witness, that is, of being inhuman. Hence, testimony arises in the noncoincidental currents of the human and the inhuman, as the human being’s bearing witness to the inhuman. This means that the ethics of witnessing that Agamben develops can be understood as an ethics of survival, insofar as the human survives the inhuman in testimony. Agamben notes that the currents of human and inhuman that cross over within the human being indicate that ‘‘life bears with it a caesura that can transform all life into survival and all survival into life’’ (Remnants, 133). This clearly repeats the distinction between bios and zo¯e that Agamben argues is crucial to the operation of biopower in Homo Sacer. In that text, he argues that biopower operates through the disjuncture of bios and

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zo¯e, and the production of bare life as the excrescence of the failure of modern democracy to broach that disjuncture.∑ Similarly, in Remnants, Agamben states that ‘‘biopower’s supreme ambition is to produce, in a human body, the absolute separation of the living being and the speaking being, zo¯e and bios, the inhuman and the human—survival’’ (Remnants, 156). Against Foucault, Agamben suggests that the definitional formula of biopower is not ‘‘to make live or let die,’’∏ but rather, to make survive, that is, to produce bare life as life reduced to survival through the separation of the human from the inhuman, or the speaking being from the living being. Thus the Muselmänner that Agamben argues are the true witnesses of the camps are so because of the reduction of human existence to survival or bare life, produced as the biopolitical excrescence of the caesura of bios and zo¯e that fractures the human being. Given that testimony emerges in the interstices between the human and the inhuman, or the speaking being and the living being, the perceived value of testimony is that it presents an interminable opposition to the separation of human life and survival: ‘‘with its every word, testimony refutes precisely this isolation of survival from life’’ (Remnants, 156). Testimony bears witness to the inhuman in the human—or the empirical life in every human being—and thus prevents their separation and collapse in the production of bare life. To get a fuller sense of the implications of this, it is first necessary to look more closely at the account of subjectification that Agamben provides, to consider the relation of the living and speaking being and its mediation in subjectification.

Subjectification, Desubjectification, and Shame The fracturing of the human that Agamben is proposing is given further elaboration in his account of subjectification, which rests on a distinction between the human as a speaking being and as a living being—where the former of these correlates with the human and the latter with the inhuman in the human being.π Agamben’s account of subjectification, which he defines as the ‘‘production of consciousness in the event of discourse’’ (Remnants, 123), emerges through theorization of two existential modalities, the first a√ective and the second linguistic. The interrelation of these modalities in subjectification provides the key to understanding Agamben’s account of testimony. With regard to the first of these, in taking up Levi’s identification of the particular shame felt by survivors of the camps, Agamben argues that shame 202

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is the constitutive a√ective tonality of subjectivity. He rejects interpretations of the shame of the survivor in terms of guilt or innocence to argue that the experience of shame derives not from culpability but from the ontological situation of being consigned to something that one cannot assume. The starting point for this understanding of shame is Emmanuel Levinas’s claim that shame arises from ‘‘our being’s incapacity to move away and break from itself ’’ (Remnants, 104), evident in, for instance, the impossible desire to separate oneself from a particular presentation of oneself. Shame is not a consequence of an imperfection or lack from which we separate ourselves, but arises from the sheer impossibility of separating ourselves from ourselves. For example, the shame felt in nudity is not shame at a lack that one perceives in oneself, but a consequence of not being able to present oneself otherwise, of being exposed in a vision from which one seeks to hide. Extending on this, Agamben argues that shame arises from consignment to something that one cannot assume, but that this something is not external to ourselves but ‘‘originates in our own intimacy; it is what is most intimate in us’’ (Remnants, 105), that is, something from which we cannot separate ourselves, but which simultaneously, we cannot fully take on or adopt as ours. The dilemma this creates for the subject is one of simultaneous subjectification and desubjectification, wherein the subject is called to witness its own ruin. As Agamben puts it: ‘‘It is as if our consciousness collapsed, and seeking to flee in all directions, was simultaneously summoned by an irrefutable order to be present at its own defacement, at the expropriation of what is most its own. In shame, the subject thus has no other content than its own desubjectification; it becomes witness to its own disorder, its own oblivion as a subject’’ (Remnants, 106). The experience or a√ectivity of shame thus indicates a double movement, whereby subjectification is accompanied by desubjectification, understood as the destitution or ruin of the subject. However, this double movement is not simply an occasional turmoil for the subject, but instead indicates a fundamental characteristic of subjection itself. For if subjection or the position of being a subject is understood as the event of being simultaneously sovereign and subjected by another, then the double movement of shame is replicated in the event of subjection. But more fundamentally, the doubling of subjectification is the interminable condition of the subject insofar as subjectification is itself an event in language (Remnants, 107). Turning to the linguistic modality of subjectification, then, Agamben argues that the taking place of the subject in language is itself an occasion linguistic survival and ethicality

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for shame, a claim he develops through an analysis of pronouns and particularly the enunciative event of ‘‘I.’’ He argues that pronouns operate as grammatical shifters, or ‘‘indicators of enunciation,’’ that is, as linguistic signs that have no substantive reference outside of themselves, but which allow a speaker to appropriate and put language to use. Hence, terms such as ‘‘I’’ and ‘‘you’’ indicate an appropriation of language, without referring to a reality outside of discourse. Instead, their sole point of reference is to language itself, and particularly the very taking place of enunciation. ‘‘Enunciation . . . refers not to the text of what is stated, but to its taking place; the individual can put language into act only on condition of identifying himself with the very event of saying, and not with what is said in it’’ (Remnants, 116). Moreover, the pronoun reveals that the enunciative taking place of speech is riven by a double movement of subjectification and desubjectification, which structures the relation of the subject to the language in which it appears. Put simply, while the appropriation of language allows for the constitution of the subject in language, it also requires that the psychosomatic individual erase or desubjectify itself as an individual in its identification with the grammatical shifters or pronouns. That is, in order to become the subject of enunciation, the individual must e√ectively obviate itself as the agent of speech. This has the consequence that the assumption of the position of subject of enunciation does not so much allow access to the possibility of speaking as the impossibility of it. As Agamben suggests, this is partly because in becoming the subject of enunciation, the subject finds itself anticipated and preceded by a ‘‘glossolalic potentiality over which he has neither control nor mastery’’ (Remnants, 116). But more importantly, the enunciative event of ‘‘I’’ indicates that ‘‘the subject of enunciation is composed in discourse and exists in discourse alone. But, for this very reason, once the subject is in discourse, he can say nothing: he cannot speak’’ (Remnants, 116–17). Because the individual is always already distinct from the ‘‘I’’ that gives it a place within language, always other to the ‘‘I’’ of enunciation and further, because the event of enunciation is itself a pure event in language without reference outside language and thus without meaning, the ‘‘I-other’’ of enunciation is held in the impossibility of speech, of saying anything. In other words, it is only in the assumption of the grammatical position of ‘‘I’’ as the subject of enunciation that the individual enters into the possibility of speaking. However, because that ‘‘I’’ is always already distinct from the individual, it is not the individual who speaks—the individual 204

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remains silent. But at the same time, the ‘‘I’’ cannot be the subject of enunciation on its own, since as a grammatical shifter, it has no substantive content outside its indication of the event or taking place of enunciation. Consequently, what is at stake in the constitutive desubjectification in subjectification is nothing less than the traditional philosophical definition of the human as a speaking being, or the living being that has language: as ‘‘z¯oon logon ech¯on.’’ In particular, the nature of the having of language by a living being or the living being’s appropriation of language is brought into question and shown to be conditioned by a full expropriation. Agamben states that ‘‘the living individual appropriates language in a full expropriation alone, becoming a speaking being only on condition of falling silent’’ (Remnants, 129). Hence, the ‘‘I’’ marks the simultaneous appropriation and expropriation of the living being in language and their irreducible disjuncture. The crucial question that arises here, then, is what speaks? If it is not the living being desubjectified in speaking, nor the ‘‘I’’ that marks subjectification, then what, exactly, speaks? This question is in fact key to Agamben’s account of an ethics of witnessing, as it is precisely in responding to this question that he gives an account of testimony as witnessing the inhuman in the human being, where the caesura of life provides the condition of possibility of testimony and subjectivity is the ‘‘battleground’’ of biopolitics (Remnants, 156). As he puts it, ‘‘ ‘I’ signifies precisely the irreducible disjunction between vital functions and inner history, between the living being’s becoming a speaking being and the speaking being’s sensation of itself as living’’ (Remnants, 125). The enunciative event of ‘‘I’’ marks the assumption of the position of speaking being by the phenomenal or living individual; but rather than allowing the subject thereby constituted and the individual to coincide, the ‘‘I’’ indicates their fundamental irreducibility. Thus, subjectivity and consciousness are founded on ‘‘what is most precarious and fragile in the world: the event of speech’’ (Remnants, 122). But as a consequence of the impossibility of the psychosomatic individual ever fully appropriating the taking place of speech as the site of subjectification, ‘‘the fragile text of consciousness incessantly crumbles and erases itself, bringing to light the disjunction on which it is erected: the constitutive desubjectification in every subjectification’’ (Remnants, 123). Conversely, every desubjectification is attended by the process or event of subjectification, the assumption of the enunciative event of the ‘‘I’’ and the correlative constitution of consciousness in discourse. The double structure in operation here parallels the double movement of subjectification and desubjectification in shame, in that it linguistic survival and ethicality

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brings the necessary consignment of the individual to language as a speaking being and the simultaneous impossibility of assuming or taking up the event of speech to light. In this light, shame appears as the principal emotive tonality, or ‘‘hidden structure,’’ of subjectivity understood as the constitution of consciousness in the event of discourse, since ‘‘insofar as it consists solely in the event of enunciation, consciousness constitutively has the form of being consigned to something that cannot be assumed’’ (Remnants, 128). This deepens the sense in which shame can be understood as the principal emotive tonality of the subject, but more importantly at this point, it also indicates a fundamental relation between shame and testimony and the particularity of Agamben’s response to the question of what speaks. We have seen that the disjuncture between the human as living being and speaking being is the condition of possibility of testimony. Testimony arises in the intimate noncoincidence of the human and inhuman or the speaking being and the living being, the subject and non-subject. As Agamben states, ‘‘if there is no articulation between the living being and language, if the ‘I’ stands suspended in this disjunction, then there can be testimony’’ (Remnants, 130). Testimony marks the fracture of the human being in its own potentiality for being human or not-being human, since the ‘‘place of the human being is divided . . . the human being exists in the fracture between the living being and the speaking being, the inhuman and the human’’ (Remnants, 135). It is in this sense that testimony appears as the marker of remaining human as mentioned earlier, since testimony marks the trial by which the human being undergoes the double process of appropriation and expropriation in speaking, in which the human endures the inhuman and survives beyond its own expropriation or desubjectification. But, since the disjunctive relation of the inhuman and human constitutively has the form of shame, then it appears that there is an ‘‘intimate’’ relation between shame and testimony, such that shame and testimony are inseparable, though they are not co-equal or strictly identifiable. As Agamben puts it, the relation of the living and speaking being has the ‘‘form of shame,’’ and this ‘‘allows for’’ testimony, as that which cannot be assigned to a subject but which is nevertheless the subject’s only ‘‘dwelling place’’ (Remnants, 130). That is, while it is not possible to identify a subject of testimony, in which testimony appears as the strict assignment of the subject, testimony is nevertheless the only place that the subject properly appears—the subject is assigned to an existence in testimony but testimony is not the assignment of the subject.

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Testimony is that which is ‘‘most intimate’’ to the subject, but which the subject cannot take on as its own. As the principal tonality or sentiment of ethics, then, shame allows for testimony, but it is also more than this. Shame is e√ectively the mode by which the subject comes to ethical responsibility as it were, since the flush of shame is precisely what calls for testimony. As Agamben’s discussion of Robert Antelme’s story of the young student from Bologna flushing in the face of his own death suggests, ‘‘that flush is like a mute apostrophe flying through time to reach us, to bear witness to him’’ (Remnants, 104). There is substantial ambiguity in this statement, since the flush that survives the young man is like a mute apostrophe, though not necessarily an apostrophe in itself, and further because it is quite unclear who or what bears witness: is it the ‘‘us’’ reached by the flush, or the flush of shame itself that bears witness? Nevertheless, what is important here is that the flush of shame that arises when the student is called to confront his own death while unable to claim that death as his own survives beyond the student—it is, if you like, the remnant of his life, what remains between his presence and annihilation.∫ In remaining beyond the existent from which it arises, the flush of shame ‘‘allows for’’ testimony, in reaching us, mutely calling to us in a way similar to the unavoidable call of apostrophe. But it may also be testimony itself. If it is perhaps the flush itself that bears witness, then it would seem that bearing witness is itself a√ective. More importantly, though, this also means that it is the flush of shame that speaks in testimony—like an apostrophe, the flush of shame calls to us, and in doing so, bears witness to the inhuman in the human.Ω This throws further light on Agamben’s enigmatic suggestion that the task of bearing witness is to bring the impossibility of speaking to speech, not simply by speaking of it, but by making it appear in language itself, by listening ‘‘to what is unsaid’’ (Remnants, 14). We can now see that it is precisely the a√ective flush of shame that allows the impossibility of speaking to appear in speech, insofar as shame is the a√ective condition of the impossibility of speaking. This indicates that Agamben’s formulation of witnessing exceeds the limits of intelligibility, which, one might argue, hamper the conception of ethical responsibility possible for theorists working from the dynamic of (mis)recognition such as Butler.∞≠ For rather than emphasizing the unintelligibility of those beings not recognized as subjects, and hence their failure to appear as ‘‘ethical subjects’’ in both modalities of

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this phrase, the focus on a√ectivity suggests that ethicality cannot and indeed should not be constrained by the limits of discursive intelligibility. If this is the case, then Agamben’s formulation of an ethics of witnessing provides an important corrective to theories of recognition and the ethics of respect for di√erence that is often derived from such a stance. However, if the foregoing interpretation of Agamben’s theorization of subjectification and shame holds, then certain problems also begin to appear in Agamben’s account.

What Speaks? Who Speaks? To summarize the points made so far, we have seen that an ethics of witnessing can be understood as an ethics of survival insofar as what is borne witness to is zo¯e or the inhuman in every human being. Further, we have seen that testimony derives from the constitutive desubjectification in every subjectification such that there is no final full appropriation in the human being’s having language. In testimony, the human being is infinitely abandoned to its expropriation in language and the double structure of subjectification and desubjectification that attends becoming a speaking being. This, however, is not the travesty of ethics, but rather the condition of ethics. An ethics of witnessing is an ethics of bearing witness to the human being’s expropriation in language and the irreducible disjuncture of the human and inhuman that this reveals. In this, the fundamental tonality of ethics is shame, understood as the a√ectivity that attends the impossibility of taking on as our own what is most intimate to us. E√ectively, then, shame is cast as the condition of testimony itself, such that shame is the impossibility of speaking that speaks in testimony. In this section, I will consider the implications of these claims and draw out several problems within this characterization of subjectification and testimony. In particular, I suggest that if an ethics of witnessing is to give e√ect to a new ethical horizon as Agamben suggests, it must allow some articulation of the relationality of ethics. This is, however, a key lacuna within Agamben’s formulation, since his focus on the question of what speaks e√ectively erases this from his analytic field. To restore a sense of fundamental relationality to an ethics of linguistic survival, I turn to Adriana Cavarero’s account of the narratability of selves and the reliance on others that this entails. Cavarero’s work helps to both reveal certain problems in Agamben’s account and indicate a means of de208 catherine mills

veloping an ethics that allows for a sense of the fundamental dependence on others for the constitution and survival within language of the living being. Drawing on both Hannah Arendt and Luce Irigaray, her formulation of narratability shifts focus from ‘‘what’’ to ‘‘who,’’ and in doing so, highlights the exclusions e√ected within philosophical discourse. Cavarero hopes to shift focus to the unique story of a life, which defines but constantly eludes the self, and which subsequently gives rise to a desire for the story of oneself to be told by another. This also means that the material of ethical attention is neither bare nor natural life—the inhuman in Agamben’s formulation—but the specificity of a human life lived in the field of ‘‘contingency and unforeseeability,’’ which is the self of a unique, embodied, and constitutively exposed existent. In this, Cavarero’s work suggests new ways of thinking about ethicality and linguistic survival and also opens the path for a feminist critique of Agamben’s account of biopolitics, subjectification, and ethics. However, I cannot take up the task of fully developing either of these lines of thought here; I merely suggest possible directions for further critique and development. It is important to recognize at this point that while Agamben is primarily interested in the formulation of an ethics of witnessing in relation to the specific aporetic conditions of Auschwitz, the scope of his argument actually extends beyond these conditions to generate an account of ethicality per se. This is so because, as an exceptional space, the camps actually reveal the perceived biopolitical separation of human life from inhuman survival as ‘‘the nomos of the earth’’∞∞ in the modern world. In other words, the biopolitical experiment of reducing human life to survival is not limited to the camps, but is instead a characteristic aspect of contemporary existence.∞≤ Furthermore, following the account of subjectification and desubjectification given above, what should be apparent is that zo¯e is ultimately the irremediable condition of the subject, a condition that is exposed in the ‘‘experiment’’ of biopolitics that separates bios and zo¯e within the individual. Desubjectification in Agamben’s sense refers to the exposure of natural life in the expropriation that conditions the appropriation of language in subjectification. Consequently, if the task of witnessing is to bear witness to the impossibility of speaking and the exposure of zo¯e that this entails, then it follows that every subject is at least potentially a witness. To the extent that desubjectification is a constitutive condition of subjectification and the subject’s taking place in language, then the impossibility of fully entering into the enunciative place of the subject always calls to be witnessed. As Agamben suggests, ‘‘the linguistic survival and ethicality

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authority of the witness consists in his capacity to speak solely in the name of an incapacity to speak—that is, in his or her being a subject (Remnants, 158).’’ This means that it is only as a subject that the witness can claim any authority to speak of the incapacity to speak, but it also suggests that all subjects are potentially witnesses, insofar as what is borne witness to is the constitutive desubjectification in every subjectification. To take this a little further, one might say that bearing witness to the impossibility of speaking pertains to the subject as one of its definitional characteristics, as its own potentiality. As promising as this account of ethics at the scene of emergence of the subject is, this construal of subjectification also indicates a deep problem in Agamben’s account. In particular, this account of subjectification and desubjectification prevents recognition of a fundamental relationality within ethics. Given the formulation of shame as the form of the relation of the inhuman and human crossed over within the single existent, it is not clear that an ethics of witnessing extends beyond an auto-a√ective relation of the subject acting in relation to its own passivity. Indeed, Agamben casts shame as precisely a matter of auto-a√ectivity, wherein the ‘‘agent and patient [coincide] in one subject’’ (Remnants, 111). That auto-a√ection is central to Agamben’s ethics of testimony is also indicated by his suggestion noted earlier that testimony arises in the doubled processes of subjectification and desubjectification, wherein the subject is called to witness its own ruin in shame. Interestingly, this process of auto-a√ection is said to produce the self as its remainder. Though Agamben gives little indication of what one might understand by the ‘‘self ’’ in this context beyond indicating that the ‘‘self ’’ is conceptually distinct from the ‘‘subject,’’ this again highlights the centrality of auto-a√ection. For here, the constitution of self requires nothing other than the subject’s relation to itself in subjectification and desubjectification. But if Agamben can be read in this way, then it seems that he avoids precisely the problem that ‘‘bearing witness’’ would intuitively entail—that is, the relation of the living to the dead, or the relation of the subject to those who cannot appear in language as subjects themselves, since there is no living being who enters into language to constitute a subject in the sense that Agamben proposes. More generally, it seems to avoid the question of relationality within ethics, though such a question is again intuitively central to the problematic of bearing witness.∞≥ The di≈culty of accounting for ethical relationality in Agamben’s description of witnessing can be brought out further through considering the way in which he characterizes the status and e√ect of pronouns. We have 210

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seen that ‘‘I’’ indicates the taking place of enunciation itself, and thus marks the process of subjectification and desubjectification that the living being must endure in becoming a speaking being, in appropriating the language in which subjectivity is precariously constituted. What Agamben fails to take into account, though, is that the taking place of enunciation can itself be seen as always a matter of ‘‘being-with’’ others,∞∂ insofar as grammatical shifters do not simply indicate the double movement of subjectification and desubjectification, but also indicate the position of the subject in relation to others. That is, the living being’s entering into language through the designation of pronouns does not simply indicate the position of the individual vis-à-vis language, but also necessarily indicates the position of the individual in relation to other living and speaking beings. Pronouns such as ‘‘I’’— and ‘‘you’’—necessarily position the speaking subject in relation with those being addressed or identified. Moreover, these enunciative positions can only be acceded to in the presence of others, whether that other is another existent or living individual, or the projection of oneself as other in relation to oneself. The enunciative event of pronouns thus indicates the presence of others as a necessary accompaniment to the accession to speech as much as it does the desubjectification at the heart of every subjectification. However, the primary dependence of the subject on others for its existence that this indicates is, somewhat unfortunately, left almost completely undisclosed or at least unexplored by Agamben. To be sure, the question of relationality is not wholly excluded from Agamben’s analysis, and indeed it even seems to be implicitly presupposed in the figuration of apostrophe that Agamben relies upon. Without entering into debates on the rhetorical e√ects of apostrophe here, what can be said is that at minimum apostrophe appears to presuppose an other called to in the figurative turn of the text. Even so, it is not clear that Agamben can get from the relation of auto-a√ective shame to a full consideration of relationality through the figure of apostrophe alone. For there is a deeper problem here than merely reinstating ‘‘the other’’ into Agamben’s formulation as it stands, and the deeper problem pertains to the form of questioning that Agamben follows from the start. As I mentioned earlier, Agamben’s principal question is that of ‘‘what speaks?’’ That this question is central to Agamben’s analysis should be su≈ciently established by the foregoing analysis of subjectification and testimony. If not, the centrality of it is again indicated in his citation of Ingeborg Bachmann’s suggestion that the motivating question of poetry is ‘‘What is the ‘I,’ what could it be?’’∞∑ linguistic survival and ethicality

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Illustrating his thesis further through Fernando Pessoa’s practice of heteronymy, Agamben traces a response to this question in the auto-a√ective relation of shame that the subject bears to itself in witnessing its own ruin. For Agamben, heteronymy is a privileged example of the mutually conditioning circuits of subjectification and desubjectification, wherein the poet survives his own desubjectification to return ‘‘to a self who both is and is no longer the first subject’’ (Remnants, 119). Interestingly, this phrase suggests that one might in fact understand heteronymy as the production of oneself as another, in recognition, perhaps, of the possibility that one is never wholly oneself without another. But, instead, Agamben reads it as a privileged scene of auto-a√ective subjectification and desubjectification, in which ‘‘what speaks’’ is neither the individual that enters into the enunciative event of language, nor the ‘‘I’’ that stands silently in language itself as the space in which consciousness is constituted. Instead, ‘‘what speaks’’ is the remnant, the remainder of the division of the living and speaking being, that is, the flush of shame. Given this, it appears that the focus on the question of ‘‘what speaks’’ indicates a fundamental problem in giving account of the relations to others that an ethics of witnessing would seem to require. To address this problem, what is required is a recasting of the question of ethicality and linguistic survival from that of ‘‘what speaks,’’ to ‘‘who speaks.’’ Rather than the metaphysical focus on the expropriation of the human in speaking that constitutes subjectivity as an event of enunciation, I want to suggest that an ethics of witnessing requires focusing on the rather less ‘‘philosophical’’ question of who—that is, of the particularity of an existent exposed in its relation to others. Cavarero has highlighted the ethical importance of this question in her account of the narratability of selves. Drawing on the distinction between the ‘‘what’’ and the ‘‘who’’ outlined by Arendt and others,∞∏ Cavarero argues that focus on the question of ‘‘who’’ yields a ‘‘relational ethics of contingency’’ that avoids the exclusions e√ected in the focus of philosophical discourse on ‘‘what.’’ In this, Cavarero’s work provides an especially interesting point of comparison with Agamben, since she is, to a large extent, working from similar sources and terms of reference. However, the account of ethicality that she gives from these sources and terms is almost diametrically opposed to Agamben’s, since the key question for her account is not ‘‘what is this ‘I’?’’ but ‘‘who am I?’’ Further, what narratability attends to is not zo¯e, understood as the irremediable condition of the subject,

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but rather, bios, understood as the unique life that constitutes the self of the phenomenal or empirical individual. Cavarero’s point of departure for her elaboration of narratability is a story related by Karen Blixen, in which a man traces a pattern with his footsteps in snow during the night, recognizing the figure of a stork in this pattern the following morning. From this illustration, Cavarero argues that each individual existent is characterized by a unique life story, the telling of which reveals the self or identity of the individual. That the self relies on this narration for its realization provides the basis for an ethic founded on ‘‘the altruistic ontology of the human existent as finite,’’ in which the central principle is ‘‘the recognition that every human being has her unjudgable splendor in a personal identity that is irrefutably her story.’’∞π Before discussing further the ethical altruism that Cavarero is positing, two points must be made to bring out the specificity of her account of narrativity. The first point to note is that Cavarero is neither positing an interior identity of the individual nor suggesting that the self is constituted in its narration. Rather, from its earliest moment, the existent is constitutively exposed to others, and its identity only consists in that exposure. Following Jean-Luc Nancy, Cavarero argues that the ‘‘who’’ ‘‘is simply exposed; or better, finds herself always already exposed to another, and consists in this reciprocal exposition.’’∞∫ This means that the self is both wholly relational and external, insofar as it consists in exposition. Further, it is precisely because identity consists solely in the exposure of the existent to others that the self is narratable.∞Ω This means, then, that the self is not constituted in the story, for the self is not strictly narrated; rather, the self and the story that exposes the unity of an individual’s identity do not entirely coincide, though they are not wholly separable either. The text is not the self, yet narration is required to reveal the expository and unique identity of the individual. The important point, then, is that the self is narratable, that is, exposed to the gaze and storytelling of others, such that identity or selfhood is not an essence but a fragile contingency established in its co-appearance with and narration by another. This leads to the second point, which is that the pattern or unity of a life can be revealed only by others. For Cavarero, identity is strictly and necessarily relational, and because of this, she insists that one cannot tell one’s own story; in spite of the trick of autobiography, the who cannot be the author of its own story. Contrary to the departure point of the man who

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recognizes the pattern of his life in the dawn of the following day, the unity of one’s life can be revealed only in the narrations of another. Here ‘‘unity’’ does not refer to a simple unity revealed in the temporal succession and coherence of events, but to the ‘‘temporal configuration of an ipse,’’≤≠ that is, to the singular pattern of a life that endures throughout time. Thus unity itself refers to the unique and unsubstitutable self of a who, such that that uniqueness is also revealed in the pattern discerned in the contingent and unforeseeable configuration of human life. Furthermore, the fact that the self has a completely external and relational reality leads to a fundamental desire for narration, insofar as it is only in the narration of another that the uniqueness and unity of one’s life story is revealed to oneself. This desire amounts to a desire for unity, wherein one poses the question ‘‘who am I?’’ not to oneself in specular self-reflexivity, but to another in the hope of receiving the gift of a narration of one’s self in return.≤∞ However, it should be pointed out here that it is not necessary that one know the story of another or be able to relate it in order to recognize the narratability of selves or the desire for narration; the content of the story is supererogatory in relation to the recognition of the narratability of the self and the desire for narration. The recognition of the fact that one has a story is enough in itself to reveal the self as constitutively exposed and relational: even without knowing the text of the story of the other, ‘‘the who . . . already comes to us perceptibly as a narratable self with a unique story’’≤≤ and this is enough in itself to establish the dependency of the self on others. The account of narratable selves yields an ethics that Cavarero provisionally calls a ‘‘relational ethics of contingency,’’ in which the material of ethics is the uniqueness of an exposed and relational identity that simultaneously clings to and withdraws from the embodied existent. In the terms of biopolitics, the material of ethics is not the empirical life of an existent, or the inhuman in the human in Agamben’s formulation, but the singular, irreducible, and unrepeatable lived life of the self. As she states, ‘‘the biography given by the other . . . put[s] into words above all the uniqueness of an identity which, only in relation, is bios instead of zo¯e.’’≤≥ Correlatively, instead of shame, the a√ectivity proper to the ethics of relational contingency is a kind of ontological altruism. Because the self finds itself always already exposed to another, but is itself also always another, there is a sense in which the narratability of selves entails a reciprocal relation of giving and receiving, such that bios itself appears as a gift. The existent ‘‘wants and receives, gives and o√ers, here and now, an unrepeatable story,’’≤∂ and as such, is con214

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stitutively involved in an intertwining with others to establish mutually expositional selves. Notwithstanding critiques of portraying the gift relation as reciprocal, we might say here, then, that the self constitutively lives for another, insofar as he or she is consigned to the reciprocal exposure and coappearance of him or herself and the unique self of another. Even from this schematic account of Cavarero’s theorization of narratable selves, there is clearly much in her ethics of relational contingency that throws critical light on the ethics of witnessing that Agamben develops. Most importantly for this discussion, Cavarero’s account of narratability allows for a conception of ethics in which relationality is primary, insofar as the self of ethics consists only in its mutual co-appearance and reciprocal exposition with others. Of course, this means that the problem has shifted somewhat from the question of the subject’s constitution as consciousness in language. Instead, what is at issue in linguistic survival and ethicality is the self, or the unique story that is inseparable from, but not reducible to, the embodied existent. This also means that the material of ethics is not zo¯e per se, or the empirical, biological life of the existent, but bios, or the life established in the existent’s relations with others. Even so, an ethics of relational contingency may still allow opposition to the separation of bios and zo¯e that Agamben sees as the central danger of biopolitics. If the value of an ethics of testimony lies in its opposition to the reduction of human life to survival, the same may well be said of an ethics of contingency based on the narratability of selves, since that narration is simply the mutual exposition of embodied existents. E√ectively, who one is cannot be distinguished from the presentation or appearance of oneself as an embodied being. Who one is then entails a constitutive altruism, insofar as the exposed existent receives bios as a gift, a gift, one might say, ‘‘of the self to itself ’’≤∑ and to others. To close this discussion, I want to briefly make one further point, which draws on Cavarero’s account of narratability and points toward a direction for further critique of Agamben’s ethics of testimony. Cavarero’s account of ethicality rests upon a strong rejection of ‘‘philosophical’’ discourse and the metaphysical universality and essence of the subject that philosophy claims to address, which is to be replaced by the narrative prioritization of the particularity of the unique, exposed existent. Within this, the corporeality of the existent takes on a particular importance, since the existent exposed in narration is, from the moment of birth, an embodied being. This has several important theoretical consequences. First, the theoretical prioritization of the embodied existent leads Cavarero to reject the philosophical focus on linguistic survival and ethicality

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death, which she identifies as a ‘‘virile habit’’ of measuring the subject against death in an attempt to secure immortality in its survival beyond the finitude of the existent.≤∏ Instead, she wants to emphasize natality as the defining event of the existent. This adds to her point that the story of one’s self cannot be authored by oneself, since it is precisely the inability to tell of one’s birth that generates a desire for that story to be told by another. This also introduces another dimension to the fundamental dependency of the existent on others, since, to put it simply, while it is possible to die alone, it is not possible to be born alone. Second, it reveals that the unique existent is also always a sexed being, since the existent that presents itself in naked corporeality at birth is necessarily sexed in his or her embodiment. Without addressing the further implications of this, the importance of Cavarero’s emphasis on the sexed corporeality of the existent for my purposes here is that it reveals a certain ‘‘amnesia’’≤π within Agamben’s account of witnessing, which is inseparable from his focus on the question of ‘‘what speaks.’’ For Agamben, the question of what speaks is ultimately a question of the pure potentiality of speaking as such. Tellingly, he argues that this question must in fact replace that posed by Foucault in his rejection of the question ‘‘who is speaking?’’ and correlative analysis of enunciation at the level of the archive of statements.≤∫ In a critical comment on Foucault’s archaeological analysis of statements, Agamben claims that for all the value of Foucault’s analysis, what it obscures is the ethical and ontological implication of the living being entering into the ‘‘vacant place’’ of the subject. In order to address these questions, Agamben argues that the point of analysis has to be shifted from the di√erence between the statement as an indication of enunciation and discourse as the corpus of what is said or unsaid, to the di√erence between ‘‘the pure possibility of speech and its existence as such.’’ In other words, focus ought to be redirected from the system of relation between the inside and outside of what is said, to the pure potentiality of language itself, that is, to the system of relation ‘‘between the sayable and unsayable in every language, between a potentiality of speech and its existence, between a possibility and impossibility of speech’’ (Remnants, 145). It is precisely this shift that makes the decisive question of testimony that of ‘‘the empty place of the subject.’’ However, what is problematic here is that Agamben’s concern with the ethical and ontological implications of the living being entering into the vacant place of the subject in enunciation means that he fails to consider the

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specifically sexed embodiment of the existent. The living being that enters into language and thereby undergoes the double process of subjectification and desubjectification is strictly neutered, a ‘‘what’’ considered apart from its appearance as sexed existent in the world. No doubt, this sexual neutralization of the living being may well be justified by recourse to the theoretical requirement that the subject be considered apart from any given quality of the embodied being that takes the place of subjection in speech. Yet one might ask precisely what is at stake in the turn to the metaphysical question of the pure potentiality of speaking as such. What is being posited as the ‘‘outside’’ of philosophy, and what exclusions are inscribed in the claim to ‘‘first philosophy’’? While it is not possible to take up these questions here, they do suggest that it may yet prove necessary to heed Irigaray’s recognition that ‘‘to speak is never neutral.’’≤Ω These points suggest, then, that a mutual consideration of an ethics of contingency and an ethics of witnessing might be productive, particularly as it may allow a more substantial understanding of the living being’s relation to others than is given in Agamben’s formulation of witnessing. While it is not possible to take this consideration further here, I do want to point out that this does not mean that, theoretically, one can simply replace Agamben’s ethics of testimony with Cavarero’s ethics of contingency. In fact, there are further questions arising here that neither Cavarero nor Agamben address su≈ciently. Of Cavarero, one might ask: why does the existent accept certain narrations as narrations of itself and not others? Why are certain narrations told with repetitive frequency, while others cannot yet be told? What exclusions operate at the level of the formulation of narrations, which a√ect ‘‘who’’ one is? While Cavarero posits a fundamental desire for one’s story to be told, she does not elaborate on this desire, or on the implications of that story’s being told in such a way that one cannot find oneself in it. Not altogether dissimilarly, one might ask of Agamben whether the ethical question of linguistic survival can in fact be addressed solely at the level of the pure potentiality of speaking as such, or does it require some account of the appearance in language of some living beings and not others? This would mean that the potentiality of speech cannot be separated as a conceptual question from the realization of speech as discourse and the specificity of the embodied existent desubjectified in its appropriation of the vacant place of the subject of enunciation. This suggests that the question of the normative exclusions e√ected at the level of speech itself and the attachments,

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melancholic or otherwise, that underline those exclusions should not be written out of an account of ethicality and linguistic survival. It suggests that it does matter, after all, who speaks. notes 1 Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive, trans. D. Heller-Roazen (New York: Zone Books, 1999). Hereafter cited parenthetically in the text as Remnants. 2 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Stanford: Stanford University Press, 1998), 166–80; also see Giorgio Agamben, ‘‘The Camp as the Nomos of the Modern,’’ in Violence, Identity and SelfDetermination, ed. H. de Vries and S. Weber (Stanford: Stanford University Press, 1997) 106–18. For the sake of brevity, I assume familiarity with Agamben’s account of biopolitics here. For a further discussion of it, and particularly the influence of Carl Schmitt and Walter Benjamin’s work in it, see Catherine Mills, ‘‘Agamben’s Messianic Politics: Biopolitics, Bare Life and Abandonment,’’ Contretemps (forthcoming). 3 Primo Levi, The Drowned and the Saved, trans. R. Rosenthal (London: Abacus, 1988), 63–64; cited in Agamben, Remnants, 33. 4 It is important to note from the outset that Agamben is particularly concerned with the ethical significance of testimony, rather than with the epistemological questions raised by it. Even so, it is not clear that these domains of analysis are entirely separable, and this suggests that Agamben’s silence on the epistemological dimension of testimony may not be wholly justified. Additionally, Agamben’s insistence that he is particularly concerned with the ethical ramifications of the Nazi concentration camps is supposed to justify a lack of discussion of the empirical circumstances of the camps, which e√ectively renders ‘‘Auschwitz’’ more a figure of ethical indeterminacy than a historico-political event. This use of ‘‘Auschwitz,’’ sometimes rendered more generally as ‘‘the camps,’’ certainly has implications for the movement from the specific to the general in Agamben’s ethico-political considerations. In particular, one might question Agamben’s use of ‘‘Auschwitz’’ as synecdoche for the general biopolitical condition of contemporary politics. This also has implications for Agamben’s theorization of the exception as that which reveals the rule, but these cannot be addressed here. I simply want to register the point that Agamben’s treatment of Auschwitz does raise serious questions that are largely unresolved in the text. I do not address these questions, though, since my aim here is to consider the theorization of subjectification and ethicality that Agamben develops. 218

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5 Agamben, Homo Sacer, 9; also see Giorgio Agamben, ‘‘Form-of-Life,’’ in Means without End: Notes on Politics, trans. V. Binetti and C. Casarino (Minneapolis: University of Minnesota Press, 2000), 3–12. The notion of ‘‘bare life’’ has given rise to a great deal of misunderstanding in literature on Homo Sacer, as it is frequently conflated with natural or biological life. However, ‘‘bare life’’ is not coextensive or identifiable with either political life or natural life—it is instead a distinct modality of existence in which biological life is politicized through exposure or abandonment to sovereign violence. Hence, it is precisely the exposure to (nonsacrificial) violence that marks bare life as both inside and outside the political order, as the ‘‘zone of indistinction’’ or excrescence produced in the division of biological, nutritive life and political life. There are thus four categories of ‘‘life’’ operating in Homo Sacer: zo¯e or biological life, bios or political life, ‘‘bare life’’ (sometimes rendered as ‘‘naked life,’’ from the Italian term ‘‘nuda vita’’), and a new ‘‘form-of-life,’’ rendered elsewhere as ‘‘happy life.’’ The new ‘‘form-of-life’’ that Agamben posits aims to overcome the production of bare life through rendering the division of biological and political life impossible. For a further discussion of this notion, see Mills, ‘‘Agamben’s Messianic Politics.’’ 6 Michel Foucault, The History of Sexuality, Volume 1: An Introduction, trans. Robert Hurley (London; Penguin, 1981), 138. 7 The importance of this distinction in Agamben’s work cannot be overemphasized. It not only maps onto the Aristotelian distinction between bios and zo¯e that structures Agamben’s account of biopolitics, but is also fundamental to his critique of Heidegger in Language and Death: The Place of Negativity, trans. K. E. Pinkus with M. Hardt (Minneapolis: University of Minnesota Press, 1991). 8 See Agamben’s definition of the remnant as that which remains between the whole and the part—Remnants, 163–64. 9 Consider here, for instance, Agamben’s comment that ‘‘flush is the remainder that, in every subjectification, betrays a desubjectification and that, in every desubjectification, bears witness to a subject.’’ 10 While Butler’s work is centrally concerned with the question of the linguistic vulnerability and survival of the subject, she has not yet provided a compelling account of linguistic responsibility. She does recognize that the paradox of responsibility posed by the deconstruction of the sovereign subject as the founding agent of speech acts ‘‘intimates an ethical dilemma brewing at the inception of speech’’ (Excitable Speech, 28). However, until recently, Butler has largely passed over this dilemma. Antigone’s Claim can be read as being concerned with the ethical responsibility that attends the subject’s appropriation of and survival in language; however, the criteria of discursive intelligibility proves a problem in linguistic survival and ethicality

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this account, insofar as it limits who or what counts as a subject of ethics. See Judith Butler, Excitable Speech: A Politics of the Performative (New York: Routledge, 1997); Judith Butler, Antigone’s Claim: Kinship between Life and Death (New York: Columbia University Press, 2000). 11 Agamben, ‘‘The Camp as the Nomos of the Modern.’’ 12 Thus, Agamben draws a similarity between the Muselmann and the ‘‘coma depasse’’ or ‘‘neomort,’’ which were also enlisted among the privileged examples of biopower analyzed in Homo Sacer. 13 For a recent account of witnessing that makes the relation of the subject to others central to testimony, see Kelly Oliver, Witnessing: Beyond Recognition (Minneapolis: University of Minnesota Press, 2001). 14 On ‘‘being-with’’ see in particular Jean-Luc Nancy, The Inoperative Community, ed. P. Connor, trans. P. Connor and others (Minneapolis: University of Minnesota Press, 1991); Jean-Luc Nancy, ‘‘Of Being Singular Plural,’’ in Being Singular Plural, trans. R. D. Richardson and A. E. Byrne (Stanford: Stanford University Press, 2000), 1–100; Jean-Luc Nancy, ‘‘Of Being-in-Common,’’ in Community at Loose Ends, ed. Miami Theory Collective (Minneapolis: University of Minnesota Press, 1991), 1–12. 15 Cited in Agamben, Remnants, 113. 16 See Hannah Arendt, The Human Condition, 2d ed. (Chicago: University of Chicago Press, 1998); Jean-Luc Nancy, ‘‘Introduction,’’ in Who Comes after the Subject? ed. E. Cadava, P. Connor, J.-L. Nancy (New York: Routledge, 1991), 1–8. 17 Adriana Cavarero, Relating Narratives: Storytelling and Selfhood, trans. P. A. Kottman (London: Routledge, 2000), 87. 18 Cavarero, Relating Narratives, 89. 19 Cavarero, Relating Narratives, 33. 20 Cavarero, Relating Narratives, 72. 21 On the type of questioning that pertains to the subject as opposed to the existent or ‘‘who,’’ see Sylviane Agacinski, ‘‘Another Experience of the Question, or Experiencing the Question Other-Wise,’’ in Who Comes after the Subject?, ed. Cadava, Connor, and Nancy, 9–23. 22 Cavarero, Relating Narratives, 34. 23 Cavarero, Relating Narratives, 85. Cavarero’s emphasis on the relational nature of bios indicates her use of an Arendtian understanding of politics as a domain of active self-disclosure, or ‘‘interactive exhibition’’ (Relating Narratives, 21). 24 Cavarero, Relating Narratives, 87. 25 See Daniel Heller-Roazen, ‘‘Editor’s Introduction: ‘To Read What Was Never

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Written,’ ’’ in Giorgio Agamben, Potentialities: Collected Essays in Philosophy, ed. and trans. D. Heller-Roazen (Stanford: Stanford University Press, 1999), 18. 26 Cavarero, Relating Narratives, 28, 76. 27 Adriana Cavarero, ‘‘Equality and Sexual Di√erence: Amnesia in Political Thought,’’ in Beyond Equality and Di√erence: Citizenship, Feminist Politics and Female Subjectivity, ed. G. Bock and S. James (New York: Routledge, 1992), 32–47; also see A. Cavarero, Stately Bodies: Literature, Philosophy, and the Question of Gender, trans. R. De Lucca and D. Shemek (Ann Arbor: University of Michigan Press, 2002). In fact, this suggests that Agamben’s account of biopolitics may itself be open to a feminist critique insofar as Agamben (and Foucault for that matter) fail to consider the gendered specificity of the history of biopolitics in the West. 28 See in particular, Michel Foucault, ‘‘The Discourse on Language,’’ trans. R. Sawyer, in The Archaeology of Knowledge, trans. A. Sheridan (New York: Harper and Row, 1972), 215–37. 29 Luce Irigaray, To Speak Is Never Neutral, trans. G. Schwab (London: Continuum, 2002).

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supposing the impossibilit y of silence and of sound, of voice Bataille, Agamben, and the Holocaust Adorno’s notion of the silence that comes from the Holocaust is a familiar one, one that suggests the ine√able nature of this particular violence, as ‘‘our feelings . . . balk at squeezing any kind of sense, however bleached, out of the victims’ fate.’’∞ However, we who are ‘‘after Auschwitz’’ do not have the choice of silence (‘‘not even silence gets us out of the circle’’).≤ It is this lack of the choice of silence, in the context of what seems a necessary silence (of voice, of meaning), that constitutes the space of silence as the sublime—that which eludes reason as reason tries to grasp it, and itself. In Lyotard, the Holocaust has become the siting of the sublime, this staging of the impossible as seen and then (not) sensed because too excessive to be brought into the realm of judgment—we are (as Adorno also noted) in the sublime of Kant’s sublime—where Kant could not go: ‘‘if something absolute must be represented, thus given, then the power of representation that is to bind together or to relate, to be relative, cannot su≈ce.’’≥ Lyotard is consciously building on Adorno, writing that the latter tells us that critique cannot function here. In the ‘‘debris,’’ ‘‘all one can do is thread one’s way through it, slip and slide through the ruins.’’∂ This does not mean an ine√ability of silence, but an unsayability that looks to inhabit, or to live on, perhaps, where the ‘‘ine√able’’ horror was: ‘‘what art can do is bear witness not to the sublime, but to the aporia of art and to its pain. It does not say the unsayable, but says that it cannot say it.’’∑ The Adorno and Lyotard position is one that matches the common-sense view of the impossibility of grasping why humans would behave in a way that seems inhuman—with the further parallel recognition that it is the barbarism in the context of culture, of rationality and rationalism that shocks, that leads to the camps’ becoming example.∏ It is precisely this ‘‘link’’ to reason that justifies a reference to the term sublime, which might seem to trivialize the event in question. This silencing of reason is what construes the particular type of silence that emerges in the attempt to deal with ‘‘the Holocaust.’’ 222

We must also consider how the Holocaust has been represented, how it has been thought, given—in terms of its witnessing, in terms of recognition, of memory, of coming to language through duty. This, of course, is never more pressing than when the possibility of witnessing is reduced (through natural death of survivors) or attacked (by self-styled revisionists). Lyotard argues that there are several forms the witness’s silence can take, and the reasons for this silence can constitute as much of a response to ‘‘revisionists’’ as the accounts of survivors’ experiences: [T]he silence of the survivors does not necessarily testify in favour of the non-existence of gas chambers, as [the revisionist/négationniste] Faurisson believes or pretends to believe. It can just as well testify against the addressee’s authority (we are not answerable to Faurisson), against the authority of the witness him- or herself (we, the rescued, do not have the authority to speak about it), finally, against language’s ability to signify gas chambers (an inexpressible absurdity).π Part of witnessing lies in the refusal to witness, and, on occasion, the retrospective uncovering of responses that were more—or maybe less—than silence. When we look at someone like Heidegger, we cannot use the same criteria as for survivors of the Holocaust: here, it is the rejection of the duty to speak, the bringing to language, that is as much the problem as the ideology that could lurk behind such a silence—Heidegger’s silence is part of a very di√erent forgetting, given his position in Nazi Germany. This refusal to witness, to recognize, is most clearly seen in the cases of Heidegger and de Man, who had ‘‘good’’ reason to be silent. But if we look at the postwar writing of Bataille, we encounter another silence, which, given the occasional suggestion that Bataille was too close to Nazi ideas for comfort, might give cause for alarm. Does this imply some sort of acquiescence (given his valorization of Nietzsche, war, sacrifice, death, and so on)?∫ What is particularly striking with Bataille’s near silence is that whereas the argument has been frequently made that we can see the roots of Heidegger’s support for Nazism as early as Being and Time, in Bataille we have the conceptual apparatus in place beforehand to account for both Nazism and the Holocaust, and he refuses to use it. What I wish to look at here is the seeming failure of Bataille to address the Holocaust, and what this failure might mean—or, more precisely, how this failure means, when read ‘‘after’’ Heidegger’s silence and Agamben’s apparently unknowing completion of Bataille. At the same time, I will claim impossibility of silence and of sound

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that Agamben’s reading of sacrifice in the context of ‘‘the Holocaust’’ fails to complete itself because of the neglect of Bataille’s ideas on sovereignty and sacrifice. This failing, however, becomes a sovereign failure, a ‘‘successful’’ one, in the context of Bataille’s failure to adequately address ‘‘the Holocaust.’’ If Bataille has failed in a way that succeeds, then it is in writing in a manner di√erent from the rest of his work, in writing quietly, in setting up an approach to the Holocaust through an apparent refusal to think it into a system. The quietness proposed here on behalf of Bataille’s almost inaudible mentions of the Holocaust leads us into Agamben’s non-silence of the witness that we see in Homo Sacer. To get to this spiral of failed reading, we need to go through the process of Heidegger’s few mentions of ‘‘the Holocaust’’— as it serves as an example, and because it raises the disquieting possibility that Bataille is nearer to Heidegger’s politics than should be the case, given his actual dissident leftist position. In starting here, rather than reading Bataille’s condemnation of ‘‘the Holocaust’’ in a simply positive way, there is no reliance on the final authority of either Bataille or Agamben. Heidegger is a worrying case for poststructuralist thought, raising the possibility that the whole enterprise is fundamentally locked into fascist thought, or at least tacit acceptance of such politics—which would perhaps be worse, suggesting a fundamental dishonesty. But Heidegger’s silence is more complicated than a denial of his past, or a strategy to avoid lending credence to those who criticize his action or inaction in Nazi Germany. Berel Lang reads a significance into the silence as such, arguing that in the case of Heidegger’s silence on the Holocaust, ‘‘silence is not something that can be replaced by words (that is, a silence of omission), but a space in which silence is the answer.’’Ω Derrida pursues this line to argue that this silence is precisely the way in which Heidegger makes us think that which is unspoken.∞≠ Lang wants to argue that this silence means something much more concrete, that it has to be read among the words and events of the time that are specifically not being referred to. Lang admits that silence may be ‘‘multivalent,’’ even though the central argument of his text suggests no such thing, as he builds a damning reading on the basis that Heidegger’s few references to the Holocaust or to the ‘‘Jewish Question’’ emphasize the essential silence, illustrating the purposive nature of this particular silence (‘‘by his very silence Heidegger was addressing the Holocaust directly, forthrightly’’).∞∞ There are two direct references in Heidegger to the mass murder of Jews under the Nazis: the first compares this to developments in modern technol224

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ogy, the second cites the ‘‘hundreds of thousands’’ killed in the camps in the same ‘‘breath’’ as the ‘‘millions’’ dying in China.∞≤ Lang argues that although Heidegger can be shown to be anti-Semitic,∞≥ this does not really have a bearing on his thought insofar as it becomes silent when faced with the Holocaust. As well as the near-silence on the subject, we also have Heidegger’s valorization of the Volk, and the German Volk as the exemplary: ‘‘Other people do not count, not because they have been tried and found wanting, but because the criteria of ‘Volkhood’ that are then brought to a point in the German Volk exclude other peoples even before they can be tried,’’ writes Lang.∞∂ This has particular bearing on the situation of German Jews, as it is they who are directly a√ected in the attempted realization of the ‘‘mission’’ of the German Volk: they are the nonexemplary—that which challenges the exemplary and its functioning in terms of ‘‘homeland’’ and so on. And, as was clear already in the 1930s, this would be put into violent e√ect. For Lang, the combination of silence on the ‘‘Jewish question’’ and emphasis on the Volk makes the silence come to mean.

Placing Sacrifice Can Bataille’s silence be compared to that of Heidegger? In some ways it is more striking, at least with hindsight: Bataille is possibly the only thinker who, before the war, already has a system of thinking in place—in the form of expenditure, sacrifice, and, shortly after the war, of the ‘‘accursed share’’— that could try to approach the question of the Holocaust, and indeed as ‘‘the Holocaust’’ (i.e., can we think of the mass murder as sacrifice—something doubted by many, notably Lang and Agamben), and he does not. The ‘‘accursed share,’’ first hinted at in ‘‘The Notion of Expenditure’’ of 1933, and developed in full in The Accursed Share, consists of the notion that sacrifice is a necessary part of something like ‘‘the human condition,’’ and to neglect this is to bring down a greater catastrophe: ‘‘if the excess cannot be completely absorbed . . . it must necessarily be lost without profit; it must be spent, willingly or not, gloriously or catastrophically.’’∞∑ Clearly, such an idea could be brought to bear on ‘‘the Holocaust,’’ however coldly nihilistic this would have been. We could equally infer that as the book was published first in 1947, it is a product of the war only just ended—with Bataille seeing war as being a precursor of more disaster if the world does not alter its conceptions of profit and loss. In terms of ‘‘the Holocaust,’’ we have a refusal to think the question, in the form of straightforward condemnation of the atrocities, impossibility of silence and of sound

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precluding theorization or further consideration. Is there something special about the failure of Bataille to address ‘‘the Holocaust’’ when looked at in the light of his failure to incorporate it into his thought when he does mention it?∞∏ The particularity of the ‘‘Holocaust’’ is that it is the depth of horror and the height of rationality. Without Modernity’s rationalism, Auschwitz cannot happen (and we cannot forget the various capitalist elements of Modernity active in its construction and development). For those ‘‘after Auschwitz,’’ it is the paradigm of what is wrong in Modernity’s project (indeed, for Agamben, Modernity’s project is essentially one that heads toward the camps: ‘‘the politicization of bare life as such constitutes the decisive event of modernity’’ [hs, 4]). We might question this exemplarity (as Agamben does elsewhere)—what can it mean to stand for the industrialization of murder while also being it? Auschwitz is called on to double, to not be itself while at the same time standing as total immanence: the rendering of subjects. Bataille is certainly one whose approach signals the concentration camps as a predictable outcome of modern Western society, having persistently attacked rationalist, utilitarian, capitalist, profane, limited, Western, modern, bourgeois society—but in order to do this, he has continually advocated that society should be based on sacrifice, and should not neglect violence as an essential component. For Bataille, the pursuit of utility brings (and is a result of ) a limited or restricted economy—or the economy of fixed values, where all becomes means, all becomes things. In opposition to this ‘‘restricted economy,’’ he o√ers ‘‘the notion of a ‘general economy’ in which the ‘expenditure’ (the ‘consumption’ [la consumation]) of wealth, rather than the production, [is] the primary object,’’ and this generalizes completely, as the general economy is the movement of ‘‘excess energy, translated into the e√ervescence of life’’ (as, 9, 10). Where the restricted economy has accumulation, preservation, progress, law, morals, the economic, and the individual, the general economy has waste, sacrifice, expenditure, transgression, community, and death. Where the restricted economy seeks order and stability, and to economize, the general economy occurs as moments of collapse, destruction, rupture, and loss, and knows no limits. There is a sort of dialectic between the two, but general economy suggests a beyond of dialectics, one where there is never any synthesis. Roughly speaking, most of the time we inhabit the restricted economy, and what occurs at all levels is a buildup of ‘‘the accursed share’’—that

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which must be spent, and only exists as it is spent, that is, retroactively and momentarily. If this does not occur through festivals or sacrifice, then a much greater, far worse expenditure will occur—this is ‘‘a matter of an acceptable loss, preferable to another that is regarded as unacceptable’’ (as, 24). Bataille attributes the wars of this century to this inevitable process whereby waste simply will come to be, and will destroy much of what is. He writes: ‘‘the excess energy (wealth) can be used for the growth of a system (e.g., an organism); if the system can no longer grow, or if the excess cannot be completely absorbed in its growth, it must necessarily be lost without profit; it must be spent, willingly or not, gloriously or catastrophically’’ (as, 21). He seems to suggest that some form of the sacred, based on profitless gift-giving—brought about in previous societies by literal sacrifice—can avert the potential catastrophes that await. Societies other than our ‘‘restricted’’ one knew how the general economy worked.∞π To approach, or to engage with, the sacred is still dangerous, but o√ers a paradoxical utility— one it does not aspire to, one that is beyond it, as the sacred is not. For this reason—the unattainability of the sacred—Bataille does not suggest a return to actual sacrifice, but he does suggest we stop denying the excessive dimension of existence, and that through consideration, and presumably some enactment of general economy, things can be di√erent: ‘‘the extension of economic growth itself requires the overturning of economic principles— the overturning of the ethics that grounds them. Changing from the perspectives of restricted economy to those of general economy actually accomplishes a Copernican transformation: a reversal of thinking—and of ethics’’ (as, 25, translation modified). Nazism could be seen, in terms of the general economy, as the apogee of rationalism, and could have been averted had our rationalism been tempered by outbursts of violence. He writes that because we have not found space for excess or the destruction of ‘‘the’’ excess, war ‘‘has taken on the disastrous proportions of which we are aware’’ (as, 24)—in other words, the massacres of the two world wars were clearly, for Bataille, a result of the relentless insistence on the productive world of capitalism. In this context of general against restricted economy, where sacrifice is replaced by ‘‘catastrophe,’’ Bataille retrospectively preempts Agamben in stating that ‘‘in general a capitalist society reduces what is human to the condition of a thing (of a commodity)’’ (as, 129)—and Agamben will go on to link the two even more explicitly: ‘‘In Auschwitz, people did not die; rather corpses were produced’’

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(ra, 72). Agamben is not simply arguing that corpses were the end product: the camp produces corpses that still function—the human becomes corpse before (or instead of ) death. So far, then, we could see Bataille’s anti-Western rationalism and his seemingly simple condemnation of the Holocaust (one statement at the end of the third volume of The Accursed Share, a few outraged brief mentions in articles [analyzed below]). But. Writing of the early twentieth century, Bataille claims the following: ‘‘[A]t this point, immense squanderings are about to take place: After a century of populating and of industrial peace, the temporary limit of development being encountered, the two world wars organized the greatest orgies of wealth—and of human beings—that history has recorded’’ (as, 37). Here we see the inevitability of the process—a process seemingly beyond human control—which raises the specter of the absence of guilt or responsibility for acts of extreme violence.∞∫ That the overall process cannot be stopped, but can be directed, I believe, is the Bataillean answer. This, of course, returns us to a more alarming thought, one that almost justifies ‘‘the Holocaust’’ as holocaust: someone had to go. Bataille’s thought, then, as potential approach to ‘‘the Holocaust,’’ oscillates among three possibilities: Nazism is a direct result of rationalistic ‘‘restricted economy’’; Nazism is an inevitable outcome of the limits of this economy; Nazism is the response, is general economy at work. There is absolutely no evidence to suggest this last as part of Bataille’s overt thought, but arguably it is awareness of this possibility that leads to Bataille’s quietness around ‘‘the Holocaust.’’ As for the other two possibilities, these are already asserted in his articles on Nazism in the 1930s,∞Ω but for us, looking at Bataille in the light of Agamben’s theory and his distrust of Bataille (notably in ra, 112–15), it is this alarming shifting ground that will be of interest.

Immanent Human The ‘‘Holocaust’’ could be an extreme version of the pursuit of utility: get rid of the Jews as e≈ciently as possible as they are the essential enemy of the Nazified Volk, and the extermination of the other is the ultimate rejection of the sacred as that which, being, becoming, being made-to-be other is to be feared (as suggested by Lyotard).≤≠ In Bataille’s system, however, sacrificial forms are held up as examples of the general economy—fearful, terrible, but in some way more faithful to human reality—so why not this ‘‘sacrifice’’? 228

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There is no place to refuse violence as such in the system of Bataille (hence accusations of nihilism)—Hiroshima, for example, is seen as sacrificial in an almost acceptable way (not in the sense of the supposed hastening of the end of the war).≤∞ Bataille’s relative silence might display the void that cannot be stated even as he writes ‘‘the void,’’ writes sacrifice—‘‘the Holocaust’’ ‘‘being’’ that which specifically cannot be addressed, the site of the highest failure (this a logical result of his writing of sovereignty as impossible, an impossible yet necessary failure), that which he terms inner experience, which as Jean-Luc Nancy notes, is neither experience nor inner.≤≤ The ‘‘relative silence’’ of Bataille contains specific mentions of what comes to be called ‘‘the Holocaust,’’ but it cannot find a place in Bataille’s general economy, even if there would seem to be a way of placing it within. Perhaps importantly, Bataille refers to ‘‘the Holocaust’’ in an essay on Sade. In ‘‘Le mal dans le platonisme et dans le sadisme,’’ he argues that he is ‘‘against’’ the Holocaust for the same reason Sade was against capital punishment—it is pure utility.≤≥ For Bataille, Buchenwald and Auschwitz are the result of capitalism and Reason, but he does not always see it this rigorously. In another essay of the same year, there seems to be a clear statement that Auschwitz is the result of reason failing, when reason has held ‘‘passions’’ in: ‘‘evil is fundamentally there in the bestiality that serves State power: Buchenwald, without this aspect, would not be the decisive, indisputable, irreducible sign of evil.’’≤∂ The camps are evil, and they are so as a result of the restricted economy overflowing as a result of its restriction. Although we can read more in such statements, their brevity is also significant: there is no problem in the judgment of ‘‘evil’’ here, no ambiguity as there is elsewhere in Bataille.≤∑ In the essay on Sade, the same type of comment leads to a more complex reading (one that can then return to inflect our reading of ‘‘simpler’’ moralistic observations). Here he writes that ‘‘d’un bout à l’autre le déchainement des passions qui a sévi dans Buchenwald ou dans Auschwitz était un déchainement qui était sous le gouvernement de la raison’’ [the eruption of passions which raged (with the connotation of punishment in ‘‘sévir contre’’) in Buchenwald or in Auschwitz was entirely an eruption under the rule of reason] (oc, 7:376). What does he mean by passions here? Surely passions are a central part of the general economy—the way in which the human realizes itself beyond habitual constraints? In what sense can we talk of an eruption, or an outburst? Presumably we are being directed to something impossibility of silence and of sound

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essential to the general economy, in which case we have to conclude that the general economy is not the ‘‘good’’ one to the bad ‘‘restricted’’ one—it might be more ‘‘authentic’’ but should not be seen as solution. Is it the case that taking the general economy as solution leads to ‘‘outbursts’’ such as ‘‘the Holocaust’’? That the general economy is not some nostalgic utopia is never more clear—it actually is, and there are modes of being in that economy—but the Nazi phenomenon, even in its most ambiguous positioning in Bataille, remains outside (or perhaps before) the world of sacrifice as it puts its ‘‘sacrifice’’ in the service of utility; it remains in the restricted economy, and therefore there can be no holocaust, no sacrifice (although we will see Agamben dispute the term sacred in a way that threatens such notions of sacrifice). As for ‘‘gouvernement,’’ its appearance here has a multiple e√ect: first, the rule of reason does not have to be removed for ‘‘passions,’’ destruction, and death to occur. Also, there might be a sense in which reason approves its ‘‘unchaining,’’ with the unchaining being essential to reason itself. This then legitimizes not only reason as part of the general economy, but possibly also the general economy as just such a ‘‘déchainement sous le gouvernement de la raison,’’ which then relegitimizes the camps themselves.≤∏ This link to reason, with its attendant ‘‘passions,’’ would make the camps profoundly human—dependent on the move into reason so as to leave it—a thought confirmed when Bataille writes that ‘‘Auschwitz est le fait, est le signe de l’homme’’ [Auschwitz is the fact, the sign, of man].≤π This is not to say ‘‘murder is a key part of being human,’’ but rather that ‘‘the human’’ is based on violence, the violence that is, brings, and comes from reason and that which is not reason. In commenting on Sartre’s notions of authenticity, Bataille notes the essential role of Jewish thinking in modern Reason, and combines the two in this chilling speculation: ‘‘l’authenticité juive ne consiste-t-elle pas en ceci justement qu’à Auschwitz c’était la raison qui sou√rait dans leur chair?’’ [is not Jewish authenticity precisely made up of the fact that at Auschwitz it was reason that was su√ering in their flesh?].≤∫ For Agamben, it is not the line reason/outside reason, but the ‘‘sovereign exception’’—‘‘([the] zone of exception between nature and right) [and is] the presupposition of the juridical reference [i.e., the existence of law] in the form of its suspension’’ (hs, 21)—and its iteration that signals the human, but also removes it in so doing. Agamben focuses on the inhuman in the form of the victim, possibly because it seems obvious that the perpetrators of mass murder are in some way inhuman—but what we have is the ‘‘in230

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human,’’ not inhumans, so when he writes that ‘‘the human being is the inhuman; the one whose humanity is completely destroyed is the one who is truly human’’ (ra, 133), the inhuman is in the crossing that is the human/ inhuman line. For both Agamben and Bataille, this ‘‘inhuman’’ delimits the human in a variety of ways, all of which can appear in the figure of ‘‘immanence.’’ Bataille heads to that point through animality. In Theory of Religion, he claims that animality is doubly immanent. First, ‘‘animality is immediacy or immanence’’ because it entails eating others, as ‘‘the animal that another animal eats is not yet given as an object. Between the animal that is eaten and the one that eats, there is no relation of subordination like that connecting an object, a thing, to man, who refuses to be viewed as a thing.’’ Second, the ‘‘animal world is that of immanence and immediacy, for that world, which is closed to us, is so to the extent that we cannot discern in it an ability to transcend itself.’’ He goes on, with particular, if accidental relevance, to note that ‘‘it is only within the limits of the human [dans les limites de l’humain] that the transcendence of things in relation to consciousness (or of consciousness in relation to things) is manifested.’’≤Ω In volume three of The Accursed Share, Bataille draws the animal and ‘‘the Holocaust’’ together, in a significantly weak (Vattimo) or minor (Deleuze) statement: ‘‘on the more or less human scale, nothing is more animal than Auschwitz.’’≥≠ At a banal level, we have to note that the statement is in parentheses, in a work unpublished in Bataille’s life. Given Bataille’s investment in the strangely total general economy (referring in the first volume to ‘‘the 18 years this work has demanded of me,’’ as, 12), this is a remarkably throwaway comment. At one level, it serves as a simple moral statement— Auschwitz is not human—but if we bring in the ideas of immanent animality from Theory of Religion, then something more is at work. The inhuman lies at both ends of the human, of the rational—like the sacred—and the animal partakes of the immanence the inhuman dwells/cannot dwell in—that which is outside of the human splitting of subject/object. ‘‘The Holocaust’’ is then feasibly a site for the immanence described in Theory of Religion, which applies to the animal, to that which is not the human, but above all to the human when not human, when annulled even as animal, as ‘‘in a sense, the corpse is the most complete a≈rmation of the spirit’’:≥∞ it is nothing, it is a thing that is not even an object (because inherently residual—itself a residue of a self, and residual of selfhood). It is perhaps ‘‘abject.’’ In ‘‘Réflexions sur le bourreau et la victime,’’ Bataille extends this and approaches the Holoimpossibility of silence and of sound

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caust, wherein ‘‘the basic horror of things o√ers itself to the human being as a truth to be discovered. In other words, it is also necessary for man to go beyond what is normal, to know the far limit of the possible [la lointaine limite du possible]. But he must pay the price. . . . But the one who backs o√ and does not want to see is barely human. [Mais celui qui recule et ne veut pas voir est à peine un homme.]’’≥≤ In his reading, executioners and victims all participate in an abjection that becomes primordial, opening the ultimate possibility of humanity. We all have something of this in us, and to place ‘‘the Holocaust’’ ‘‘o√ limits’’ as the inhuman is to misrecognize that the inhuman is in us as much as it is outside us. Hence, perhaps why Bataille refers only to the ‘‘deported,’’ rather than the Jews as such.≥≥ ‘‘The human’’ is (never/not) arrived at through a process—in this case—of overt abjection: ‘‘in a su√ering, stinking, debased universe, each person had the leisure to get the measure of the abyss, the absence of limits of the abyss, and this as truth that both haunts and fascinates.’’≥∂ If proximity to the sacred involves occupying the depths of existence, such that as human, as individual, you can no longer be, and where death is not even your own (such as it would have been), then in what sense can Bataille refuse the camps? He can neither accept (because of horror, rationalization of death) nor reject (because of loss of self, loss of rational world). This is the non-place where it all breaks down, because it does not all break down: there is no total separation of the world into sacrifice/rational world, let alone in what has become (what now has always already been) the exemplary case of this impossibility. The inhuman, the ‘‘animal’’ (as immanent) is to be found in some (unmeasurable) measure in the camp—both the individual faced with his nonexistence and all others who come through or after attain some level of the human at the point it disappears, and this disappearance is originary, continually recalling the moment of becoming-human. But to learn this is to become incapable of learning—the example falls beside itself again. If we look at immanence in Agamben, we also see that ‘‘the extreme situation’s lesson is rather that of absolute immanence, of ‘everything being in everything.’ ’’≥∑ Superficially, this is very close to Bataille’s notion of the corpse as being the human entering immanence, but we have to recall that for Agamben this immanence, as regards the human, occurs in what has at least some appearance of life, in the form of ‘‘bare life’’: ‘‘the bare life to which human beings were reduced neither demands nor conforms to anything. It itself is the only norm; it is absolutely immanent’’ (ra, 69)—as with 232

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Bataille’s animal existence, as with the corpse as immanent site of the line between human and not-human, but this time with something still living, or living on. This bare life is realized in the figure of the Muselmann, the one already dead, but not a corpse: ‘‘the Muselmann is not only or not so much a limit between life and death; rather he marks the threshold between the human and the inhuman’’ (ra, 55). Elsewhere, Agamben develops a similar thought from Deleuze’s idea of a life as that which is immanent (and vice versa) (working from the essay ‘‘Immanence: A Life,’’ rather than referring to Deleuze and Guattari’s notion of immanence in Capitalism and Schizophrenia). He writes that ‘‘the di≈cult attempt to clarify the vertigo of immanence by means of ‘a life’ leads us instead into an area that is even more uncertain, in which the child and the dying man present us with the enigmatic cipher of bare biological life as such.’’≥∏ Immanence, then, in the shape of ‘‘bare life,’’ is the human becoming inhuman, but is also the becoming human, becoming only human.

To Where the Sovereign Fails (the Sacred), to the Sovereign as Failure ‘‘Auschwitz’’ can be seen as the excess of rationality, whether within or outside. It is exemplary, but not uniquely so, as for Bataille, all sacrifice, all that is ‘‘proper’’ to the general economy is exemplary—the exemplary being that which is excluded from the everyday, and always reconstructing the origin (itself only to be in its reconstruction) in moments of destruction. This ‘‘example’’ is perhaps the example of the crossing of the line between ‘‘restricted’’ and ‘‘general’’ economies. But to what extent can we term ‘‘the Holocaust’’ a holocaust, an actual sacrifice? Even the term itself is unacceptable, argues Agamben, first because ‘‘the unfortunate term ‘holocaust’ (usually with a capital ‘H’) arises from [the] unconscious demand to justify a death that is sine causa—to give meaning back to what seemed incomprehensible’’ (ra, 28); second, because there is a history of the term being used, by Christians, to refer to their massacres of the Jews (ra, 29–30). Arguably, this term is then not inaccurate when referring to ‘‘the Holocaust.’’ Behind the criticism of the term lies the real complaint that the massacre of millions of Jews cannot be described as being in any way a sacrificial o√ering. I think that if we look at what Bataille has to say about the place of sacrifice, Agamben’s own text returns to this place. Oddly enough, it is Agamben’s refusal of the kind of sacred invoked by impossibility of silence and of sound

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Bataille that leads his text to reinstate a version of Bataillean sacrifice. According to Agamben, the received wisdom—that the sacred is a realm of the excluded, and that this exclusion applies to both holy and unholy, making the sacred double (and, in Bataille and Roger Caillois, for example, removing it from necessarily being under the control of organized religion)—is based on a fundamental error, as the word sacred comes from somewhere else entirely: ‘‘an assumed ambivalence of the generic religious category of the sacred cannot explain the juridico-political phenomenon to which the most ancient meaning of the term sacer refers’’ (hs, 80). Coming from Roman law, ‘‘homo sacer (sacred man) [is he] who may be killed and yet not sacrificed’’ (hs, 8), and ‘‘is simply set outside human jurisdiction without being brought into the realm of divine law’’ (hs, 82). So for Agamben, the sacred is this realm where the human becomes barely, only human—existing in the capacity to be killed, such that ‘‘the sacredness of life, which is invoked today as an absolutely fundamental right in opposition to sovereign power, in fact originally expresses precisely both life’s subjection to a power over death and life’s irreparable exposure in the relation of abandonment’’ (hs, 83). The sacred is about power, not about the divine. However, this sacred is still about an excess of a system, is still about some sort of obscured origin that declares itself not one. Agamben’s redefinition of sacred in terms of political power is powerful and timely, his criticism of an exoticism on the part of Durkheim, Mauss, Caillois, and Bataille legitimate and useful. But there is a major problem here, before we unravel the strange link to Bataille’s sacred that persists: can Agamben really dismiss every other version of something like the sacred without being ethnocentric and ahistorical himself ? What if we changed the word sacred in the definition he rejects—of course the meaning of a juridical term is important, but what about the history of thinking what is called the sacred? Does Agamben think he has found the real truth everyone else missed?≥π For Agamben’s failure to become a di√erent kind of failure requires the reinstallation of something like a Bataillean sacred. If we look then at the place of the sacred, then, for Bataille, sacrifice has its place, and this is not so much literal as central—the hole at the center of all society—a hole that cannot take its place, being the ‘‘nucleus of violent silence’’ in/of human society.≥∫ This absence comes to not take its place: ‘‘nothing comes from [sacrifice], and the communication of anguish that occurs in sacrifice is not the resolution, but the introduction and maintenance of tearing apart [déchirement] in the very centre, in the heart of the human city.’’≥Ω 234

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Sacrifice founds society, perpetually, and hides itself as the founding in the founding (with the sacred as the holding apart of what is sacred). Can we apply this statement to Auschwitz? Agamben does: ‘‘the political system no longer orders forms of life and juridical rules in a determinate space, but instead contains at its very center a dislocating localization that exceeds it and into which every form of life and every rule can be virtually taken. The camp as dislocating localization is the hidden matrix of the politics in which we are still living’’ (ra, 175). The di√erence is that for Bataille there is always a distance between the space of sacrifice and where ‘‘we live,’’ while for Agamben we live, barely, in that space. One of the most valuable aspects of Homo Sacer and Remnants of Auschwitz is a refusal to simply leave ‘‘the Holocaust’’ as example, and the insistence that we are not talking about any form of transcendence (however negative) when we look at ‘‘limit conditions’’ such as those of the camps: what is at stake is political power coming to be in the exerting of power as life, such that ‘‘the Jew living under Nazism is the privileged negative referent of the new biopolitical sovereignty [even before the camps], and is, as such, a flagrant case of homo sacer in the sense of a life that may be killed but not sacrificed’’ (ra, 114). Nonetheless, Bataille’s notion of the place of sacrifice as excess reminds us that strategies of (de)humanizing are not merely instrumental, even if ‘‘bare life’’ brings with it ‘‘bare power,’’ and that the notion of there being control over the excess returns us precisely to the realm of full rationality. This excess is in the infinitely small moment of ‘‘the exception’’—there where the law comes to be in not being itself. In Bataille, sacrifice founds all society, but only ever after the founding has been and gone—standing as an equivalent to the lost moment of original political and juridical sovereignty: ‘‘Let there be law.’’ For Bataille, it is not a question of the sacrifice bringing the Law (as in, for example, Freud’s model), but of sacrifice (in its becoming-outside of law) always bringing law in, in its wake: law as trace of the outside, now held outside, sacrifice of the sacrifice of the sacred. Founding, then, is not the provision of a base, but the iteration of base-lessness.∂≠ Agamben forcefully rejects Bataille’s ideas of sacrifice and sovereignty— initially congratulating Bataille on altering the way sovereignty is thought, then going on and writing that ‘‘Bataille’s work could o√er only a real or farcical repetition of the sovereign ban’’ (hs, 113) (i.e., the moment sovereign power installs itself ). He criticizes Bataille’s incapacity to think the product of sovereignty as being bare life, not a form of glorious life, and that impossibility of silence and of sound

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even a cursory look at ‘‘the Holocaust’’ will reveal it as not sacrificial, and that homo sacer is indeed still with us, but is being killed, or is only just not dead, rather than attaining some height of nothingness (hs, 114). This is true, but once again, only if we accept Agamben’s definition of sovereignty, which itself is subject to major shifts. Also, Agamben might well have usefully considered what the di√erence between Hegel and Bataille consists of: that mastery is not the aim in Bataille (‘‘thought taken to the limit of thought requires the sacrifice, or the death, of thought’’)∂∞ —loss is the aim, to the extent that loss as aim falls away. Sovereignty, for Agamben, can be found in the notion of the sovereign exception: ‘‘The sovereign exception (as zone of indistinction between nature and right) is the presupposition of the juridical reference in the form of its suspension’’ (hs, 21)—applying both as the originary moment of law, where law appears, deriving its legitimacy from itself as not-itself, and the literal exception where ‘‘the sovereign’’ is that which is above the law, and thereby guaranteeing it.∂≤ Elsewhere, however, the sovereign is something much more casual: he refers to ‘‘the sovereignty of the living man over his own life’’ (and loss of same) (hs, 139), and there are also suggestions that ‘‘the sovereign’’ is merely the location of power: ‘‘in the biopolitical horizon that characterizes modernity, the physician and the scientist move in the noman’s-land into which at one point the sovereign alone could penetrate’’ (hs, 159). Much less attention has been paid by Agamben to the term sovereign than to sacer—and, as we will see, this even results in a proximity with Bataille’s more developed theory on the same subject. Bataille’s definitions are also variable, despite the perpetual assertiveness. The idea of sovereignty emerges from those with sovereign power, only to leave them behind. The question of sovereignty ‘‘is poorly formulated if we confuse it with the autonomous decision of an individual’’—and therefore individuals cannot have sovereignty in or over themselves. Bataille’s idea of sovereignty is to do with getting beyond ‘‘the servile and the subordinate,’’ as ‘‘life beyond utility is the domain of sovereignty.’’ This getting beyond links with the idea of the ‘‘sovereign exception’’: ‘‘sovereignty is essentially the refusal to accept the limits that the fear of death would have us respect’’ and is ‘‘the negation of the prohibition’’—but unlike Hegel’s master, sovereignty ‘‘dissolves into NOTHING’’ in order to become sovereignty. In the context of this discussion, the most significant statement of Agamben about sovereignty is the following: ‘‘the sovereign is the point of indistinc-

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tion between violence and law, the threshold on which violence passes over into law and law passes over into violence,’’ as this is now to be seen not just as the imposition of power as force, but power beyond itself.∂≥ Sovereignty seems to be about freedom, even if this freedom is a di≈cult one (‘‘we have to reencounter horror, anguish, death’’),∂∂ but in Bataille, sovereignty is more a destiny, an inevitability—as seen above, it is beyond the capacity of the individual to decide to be sovereign, or to act so as to be sovereign. It is in this light that we should consider the following statement from Bataille: ‘‘sovereignty is man’s primordial condition, his basic condition.’’∂∑ In aspiring to sovereignty as power or mastery, the loss of mastery that ensues brings a ‘‘sovereignty’’ that is nothing, a nothing that is all there is: and this nothing is less than an actually true state, because it can only come to (not) be as a return—there is no sovereignty except as loss of sovereignty, in the form of Bataillean sovereignty. There is no logical reason, then, for not including the experience of the camp as being a sovereign experience: the human is brought into being as its failing to be human, as its coming apart/déchirement. But Bataille is unable, in terms of sovereignty, to attribute use value to events, experiences, analyses— the camp must be where it happens, and yet it cannot take place there. This indicates that sovereignty takes place not only out of the control of masters and mastery (i.e., traditional models of sovereignty), but also beyond that of the Bataillean ‘‘sovereign’’ individual. The horror this ‘‘sovereign’’ must live does not end, but spreads: sovereignty is a NOTHING that contains nothing of Bataille’s mystical hope. Instead this ‘‘sovereignty’’ is brought about precisely in the rigid application of the ‘‘sovereign exception’’ as the norm. Bataille’s model fails (or ‘‘fails’’) in its inability to come to be (both in terms of the theory itself and its writing, which remains quiet). At the same time, Agamben’s sovereign as ‘‘point of exception,’’ where law and violence almost fully coincide, is also exceeded, escaping the rules of the camp, the ‘‘use value’’ of its functioning. Agamben’s account of sovereignty fails (again, ‘‘fails’’) in that Bataille’s failure, combined with his failure in reading Bataille, leads to a reassessment of the camp as location of sovereignty. When Agamben writes ‘‘there is a limit-figure of life, a threshold in which life is both inside and outside the juridical order, and this threshold is the place of sovereignty’’ (hs, 27), the nature of the sovereignty that pertains must alter: it is no longer a possession, an imposition of power, but the moment where that power unstructures the human. As moment, sover-

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eignty eludes power—in so doing, we are only worse o√—nothing is learned, gained, improved, and we only got here through the failure of the two writers, the aporetic double failure.

‘‘Violence passes over to Law’’ One vital correction to Bataille still needs to be made, and it is one of the key tenets of both Homo Sacer and Remnants of Auschwitz—the notion that ‘‘Auschwitz’’ is not an exception, or even the (sovereign) exception, as it is instead the exception made the norm. The camp is the place where law comes to be and cannot be, where the human comes to (merely) be, and cannot be. In Homo Sacer, Agamben argues that there is an area between law and not-law, human and not-human, which realizes itself in the form of ‘‘the camp.’’ The state of ‘‘mere life’’ is what subsists (as nothing) at the moment of disjunction. This moment in the theorizing of law is there (but never present) in the paradoxical coming-into-being of law through force, wherein there can never be a final, initial legitimation. In the notion of ‘‘sovereignty,’’ Agamben sees the performing, the iteration of this moment of exception, where law is brought into being. The exception is the bringing into law, as opposed to the idea of sovereign power that is interested in the capacity, and then the result of the bringing-into-law. Agamben is interested in what lies between. This ‘‘exception,’’ the exemplary being of sovereignty as the coming into being of the sovereign, can also lead us out of law: the threshold is open in both directions; the law is an infinitely thin line, perhaps, always to be crossed, being in the crossing. And this line, unlike Foucault’s in ‘‘Preface to Transgression,’’ has always only already been a line, as it becomes space, the spacing of law, humanity, language. The camp, then, is the staging not of the limit, in whatever sense we can have limit in the singular, but the reliving of the exception. What is di√erent, however, is that the exception loses its exceptional status. The camp is the place, the exemplary site of the exception becoming nonexemplary: ‘‘the state of exception ceases to be referred to as an external and provisional state of factual danger and comes to be confused with juridical rule itself ’’ (hs, 168). So the camp cannot be seen as a moment of exceptional horror: what is novel is the perpetuation of the exception; what is at stake is not the moment of the inhuman but the rendering inhuman, combined with the maintenance of the human. In Remnants of Auschwitz, he writes that ‘‘Auschwitz is precisely the place in which the state of 238 paul hegarty

exception coincides perfectly with the rule and the extreme situation becomes the very paradigm of daily life. But it is this paradoxical tendency of the limit situation to turn over into its opposite that makes it interesting’’ (ra, 49).∂∏ If we bring back in the earlier adjustments to this notion of sovereignty as form of force, then it seems clear that the exception becoming rule does not remove its exceptionality, in the same way that sanctified transgression does not stop being transgression. Even if Agamben is correct in observing the continuum between the camps and the operations of (biopolitical) power in general, the generalization of the exception brings an immanence of and to life that life, in general, defines itself against: human life is the negation of its own immanence, as it lives this immanence into death, and the negation (in the camps, for example) of this negation is no gain, no triumphal sovereign awareness of the futility of the mereness of life, but the strange corollary of triumphant mastery, of life as not-mere life. Here we are in an unchosen ‘‘sacrifice’’—this time removed from notions of ‘‘the Holocaust,’’ a word Agamben is right to reject. The Bataillean notion of sacrifice returns—as Agamben himself notes, the camp is one form of biopolitics that defines the city, arguably its paradigmatic form. Neither would want to make this link, and this failing is what we have as our result, a result that is quite possibly preferable to any kind of success in this venture. This failure stands as more than silence, and where Bataille is theoretically quiet (i.e., not just in sparseness of mentions, but in the ‘‘place’’ of the exterminations, which is that of an incompatibility, a striking silence, and also a refusal to bring the camps into the noise-filled system of the ‘‘general economy’’), Agamben has the witness, the remnant. Via Levi, Agamben notes that ‘‘those who did not bear witness and could not bear witness’’ are the true witnesses (ra, 34). From this, it follows that ‘‘perhaps every word, every writing is born, in this sense, as testimony. This is why what is borne witness to cannot already be language or writing. It can only be something to which no-one has borne witness. And this is the sound that arises from the lacuna’’ (ra, 38). Witnessing is outside language, is the testimony of being forced outside language. It is not silent, but it is barely there, a remnant rather than an absence, and this ‘‘barely there’’ is the bare life left after the becoming inhuman, of the becoming human out of the inhuman: ‘‘The human being is the inhuman; the one whose humanity is completely destroyed is the one who is truly human . . . the identity between human and inhuman is never perfect and it is not possible to destroy the impossibility of silence and of sound

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human, something always remains. The witness is this remnant’’ (ra, 133–34). The witnessing is what lies between human and inhuman as the Muselmänner themselves ‘‘lived’’—without discourse, but in the possibility of testifying through the imposition of the impossibility of either language or nonlanguage: ‘‘the human being exists in the human being’s non-place, in the missing articulation between the living being and logos’’ (ra, 134). Agamben goes on: ‘‘the subject is thus the possibility that language does not exist, does not take place’’ (ra, 146), and this not taking place is the site where it cannot be, cannot come to language, and this not coming to being is the sovereignty of the witness, somewhere in Bataille’s failure. Somewhere in the silence that is not one, as in his ‘‘notion’’ of inner experience, where the becoming silent approaches sovereignty, bringing with it its failure, its felicitous failure, its quietness, not its silence.

To Never Have Left the Silence, Again Emerging in silence, as silence that is not silence, returns us to the sublime—not that of Lyotard, but this time of Hegel. Here, the voice speaks, bringing existence into being so that it can be heard, so as to speak. It is not that a witness is required for the voice to be heard—it is that there is to be witness. But in this coming to be of existence as witness, there is no sound, except as missing—the original sound cannot be, but is, and is therefore infinitely quiet, not absent. This is the response to Agamben’s impatience with the supposed ine√ability of ‘‘the Holocaust,’’ which goes with and legitimizes the use of ‘‘the sublime’’ with regard to the exterminations—‘‘But why unsayable? Why confer on extermination the prestige of the mystical?’’ (ra, 32). Here there is no Godly source, no possible location for the mystical, as the mystical undoes itself. In the quietness that is failure of completion, rejection of use value, of exemplariness in favor of the exemplary, and the exemplary becoming exception, as it can when it is the drawing of the line between life on the one hand and bare life/death on the other (Agamben cites the ‘‘Shibboleth’’ as the place where ‘‘example and exception become indistinguishable’’ [hs, 23])— in this quietness, there is nothing to be gained, but it is the nothing that defines that which it is not. This is a return to ‘‘something rather than nothing,’’ and also a return to the Hegelian sublime—as the figure of the impossibility of voice, the impossibility of silence, and the impossibility of the between (quietness) as structuring the other impossibilities as possibil240

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ity. For Hegel, when God creates the universe, it is a creation that is a witnessing, a bearing witness to [Zeugen]: but there can be no witnessing before or at this time; the witness and the thing to be witnessed cannot have come into being—and never can, but always have already come.∂π God’s speaking (Äußerung) and ‘‘uttering’’ (Hervorbringung) bring from the inside to an outside—an outside that only comes into being in the bringing. What is brought? Almost nothing—an uttering that is ‘‘immaterial, ethereal,’’ ‘‘in whose command to exist now also that which exists is really placed in unmediated silent obedience’’: there is nothing but the nothing between word and silence, and this nothing then is all, at which point the word has been and all is brought to have become before the word, such that the word be spoken. The word is not here. In this not-here is the witnessing, the place of the writing, the unwriting that enters the immanence of bare life. notes Works frequently cited in the text and the notes have been identified by the following abbreviations:

as

Georges Bataille, The Accursed Share (New York: Zone, 1988).

hs

Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998).

oc

Georges Bataille, Œuvres complètes, 12 vols. (Paris: Gallimard, 1970–1988).

ra

Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive, trans. Daniel Heller-Roazen (New York: Zone, 1999).

1 Theodor W. Adorno, Negative Dialectics (London: Routledge and Kegan Paul, 1973), 361. 2 Adorno, Negative Dialectics, 367. 3 Jean-François Lyotard, Heidegger and ‘‘the jews’’ (Minneapolis: University of Minnesota Press, 1995), 32. 4 Lyotard, Heidegger, 43. 5 Lyotard, Heidegger, 47. We should take art, here, in its most serious guise—that of the thing that acts as supplemental origin of humanity. Even when Adorno suggests that Beckett is closest to (not) talking of the Holocaust (Negative Dialectics, 380), it is not as an artist in the restricted sense that Adorno regards Beckett’s writing as important. On this subject, see also Agamben’s gloss on Nietzsche’s views on art as that which must escape aesthetics, in a transvaluation of values (The Man without Content [Stanford: Stanford University Press, 1999], 85–93). 6 This becoming-example should concern us in what it says about the possibility of ‘‘the exemplary.’’ The debate about the Holocaust’s uniqueness concentrates on impossibility of silence and of sound

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whether there is something particular about ‘‘the Holocaust’’ and if so why. But, in becoming unique, the Holocaust begins to exemplify: man’s inhumanity to man; the dangers of right-wing ideas, of mass politics, of ‘‘the West’s’’ attitude to ‘‘others’’; the centrality of anti-Semitism in European history. In exemplifying, something strange happens to the mass murder being looked at: there is acceptance of the homogeneity of the ‘‘Final Solution’’—which is to accept the purpose of the ‘‘solution’’—the obliteration of particularities of individuals, of entire groups. Also, it begins to mean (Hamm’s fear of this in Beckett’s Endgame confirming Adorno’s suspicion that Beckett could write on in the aftermath of Auschwitz [Endgame (New York: Grove Press, 1958), 32]). It begins to become something we can learn from. We are caught, then, between ine√ability, and coming to mean. The redefining of the Holocaust as some form of the sublime does not resolve this or suspend itself between the two possibilities—rather it maintains them both. If we raise the example as question, then we can have more of a sense of this particular ‘‘example,’’ following Agamben’s idea that ‘‘the proper place of the example is always beside itself, in the empty space in which its undefinable and unforgettable life unfolds (The Coming Community [Minneapolis: University of Minnesota Press, 1993], 10). In the example, the exemplar of ‘‘the Holocaust’’ (where even this name is to be challenged—see his Remnants of Auschwitz: The Witness and the Archive [New York: Zone, 1999], 28–31) is both beside the impossibility allocated to ‘‘the event,’’ and is beside itself as example of all that it is (not)—i.e., all mass murder, horror, genocide. Its becoming-paradigm is part of its specificity, because it is the paradigm that cannot be, of which use cannot be made (linguistically, ontologically, ethically) even though use is made, is demanded, maybe owed. 7 Jean-François Lyotard, The Di√erend: Phrases in Dispute (Manchester: Manchester University Press, 1988), 14. 8 Many have leapt to such a conclusion, with Agamben among them, citing Benjamin, with some sleight of hand (via Pierre Klossowski), as having seen one of Bataille’s groups (Acéphale) as ‘‘working for Fascism’’ (hs, 113) and ignoring Benjamin’s attendance at Bataille’s Collège de Sociologie and Benjamin’s entrusting his papers to Bataille when leaving for Spain. 9 Berel Lang, Heidegger’s Silence (London: Athlone Press, 1996), 28. 10 See Jacques Derrida, Of Spirit: Heidegger and the Question (Chicago: Chicago University Press, 1989). There is not space here to respond to the, at best, hurried critique of Derrida’s reading made by Lang, and also present in Lyotard. 11 Lang, Heidegger’s Silence, 7, 15, 31–37. Lang echoes Lyotard, who argues that ‘‘the silence on the extermination is not a deconstructionist lapsus. Or if it is, 242

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then deconstruction itself is, at the very least, the lapsus; for it repeats, in its own fashion, a very old forgetting that is not merely part of philosophy, but of European thought’’ [i.e., of ‘‘the jews’’] (Lyotard, Heidegger, 75). Lyotard’s dogmatic attack on Derrida means, ironically, that he does not see his own text’s ‘‘deconstructionism.’’ 12 Lang, Heidegger’s Silence, 16–17. 13 Lang argues that it is not enough for Heidegger to cite his quoting of Nietzsche as an opponent of anti-Semitism, biological determinism, or racism for Heidegger to not be anti-Semitic (see Heidegger’s Silence, 39). Furthermore, it is also not necessary that the refusal of biological determinism in Heidegger’s work means that he is necessarily not anti-Semitic, as much twentieth century anti-Semitism is not based on readings of biological race (Heidegger’s Silence, 67). 14 Lang, Heidegger’s Silence, 56. 15 as, 21; Georges Bataille, ‘‘The Notion of Expenditure,’’ in Visions of Excess: Selected Writings, 1927–1939, ed. Allan Stoekl (Minneapolis: University of Minnesota Press, 1985), 116–29. 16 Secondary material on Bataille tends to stress his refusal of system—but within this refusal is the absent system that organizes the refusal into clear patterns of unsystemic thought, such that the system might be complex, but it is there. An alternative way of thinking this is to note that Bataille’s focal points are consistent: death, sacrifice, drunkenness, the irrational, transgression, eroticism, sovereignty as failure. 17 ‘‘Solar energy is the source of life’s exuberant development. The origin and essence of our wealth are given in the radiation of the sun, which dispenses energy—wealth—without any return. The sun gives without ever receiving. Men were conscious of this long before astrophysics measured that ceaseless prodigality’’ (as, 28). 18 It might seem strange to the contemporary reader that the Holocaust is not singled out here, but in this Bataille merely represents his time: the specificity and extent of ‘‘the Holocaust’’ really emerges only with Raul Hilberg’s The Destruction of European Jewry (Chicago: Quadrangle, 1961). The problem is that Bataille’s theory should enable him to get closer than most in not being merely of his time in this respect. 19 The most significant article being ‘‘The Psychological Structure of Fascism,’’ in Bataille, Visions of Excess, 137–60. In this article, Fascism is identified as a heterogeneous phenomenon (‘‘something other, as incommensurate’’ [143]), while being separated o√ as a sacred of domination: ‘‘the simple fact of dominating one’s fellows implies the heterogeneity of the master. . . . If the heterogeneous nature of impossibility of silence and of sound

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the slave is akin to that of the filth in which his material situation condemns him to live, that of the master is formed by an act excluding all filth’’ (145–46). For Bataille, it is the ‘‘lower’’ version that is ‘‘better,’’ but Fascism does have some relation to the sacred, albeit a relation of rejection through direct control. For a sense of Bataille’s topography of heterogeneous and homogeneous elements in society, see ‘‘Tableaux hétérologiques,’’ oc, 2:178–202. Nazism is akin to Christianity (as paradigmatic of organized religion) in that Christianity is the institution nearest to the sacred, but as institution, it specifically prevents the sacred from coming into being. See Bataille, ‘‘Attraction and Repulsion II: Social Structure,’’ in The College of Sociology, 1937–1939, ed. Denis Hollier (Minneapolis: University of Minnesota Press, 1988), 113–24, for his critique of Christianity as an institution that rejects the sacred. Such a view, recalling Nietzsche, underpins Bataille’s view that Western society is nothing more than a continual, fearful retreat from the sacred (where the sacred is a ‘‘nucleus of violent silence’’ [114], and not a communing with God, Nature, the Universe, etc.). 20 Lyotard, Heidegger, 91–94. 21 See Bataille, ‘‘Concerning the Accounts Given by the Residents of Hiroshima,’’ in Trauma: Explorations of Memory, ed. Cathy Caruth (Baltimore: Johns Hopkins University Press, 1995), 221–35. ‘‘Hiroshima’’ is of course a di√erent type of massacre—a less predictable, instant annihilation—but Bataille’s claim is that in the scheme of things, ‘‘Hiroshima’’ simply hides the fact of its own irrelevance in the face of the millions who die every day. It is also worth noting Bataille’s ‘‘Caprice et machinerie d’état à Stalingrad’’ [Whim and State Machine at Stalingrad], oc, 11:472–79, where he writes that Hitler makes a sovereign sacrifice in keeping the German army fighting when there is no possibility of victory. 22 Jean-Luc Nancy, The Inoperative Community (Minneapolis: University of Minnesota Press, 1991), 18. See also Maurice Blanchot, The Unavowable Community (Barrytown, N.Y.: Station Hill Press, 1988). 23 ‘‘Le mal dans le platonisme et le sadisme’’ [Evil in Platonism and Sadism], oc, 7:365–80. This text appears in 1947, and it is placed alongside The Accursed Share in the oc. On Sade’s view of capital punishment, see 366. 24 ‘‘Du rapport entre le divin et le mal’’ [On the Link between Good and Evil], oc, 11:206. 25 See, for example, Eroticism (London: Marion Boyars, 1987), 117–28, on Christianity and the Black Mass. 26 That the camps belong to a realm of legitimacy is not Bataille’s fault—and this ‘‘legitimacy’’ is also clearly to be seen in the terrain of Agamben’s take on Fou-

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cault’s biopolitics, as the definitive way the human is brought to be as nothing but human (see hs, 1–12, and passim). 27 Bataille, ‘‘Sartre,’’ oc, 11:226. 28 Bataille, ‘‘Sartre,’’ oc, 11:228. 29 Bataille, Theory of Religion (New York: Zone, 1992), 18, 23–24. 30 Bataille, The Accursed Share, 3 vols. (New York: Zone, 1991), 3:450. 31 Bataille, Theory of Religion, 40. 32 ‘‘Réflexions sur le bourreau et la victime’’ [Reflections on the Executioner and the Victim‘‘], oc, 11:264. Or is the person who can look ‘‘barely human’’? The camp prisoner has no choice in this matter—but also we can see a doubling within bare life—one that signals some sort of supplementality in Bataille’s notion of sovereignty. 33 Bataille, ‘‘Réflexions sur le bourreau,’’ 264. Bataille heads cautiously to where his overt pronouncements do not take him. Here the ‘‘Copernican shift’’ in ethics is to be seen—only with an acceptance of the possibility of the ‘‘impossible’’ and ‘‘interminable’’ horror of the extermination of millions of Jews and others can we begin to think of arriving at an understanding of what it is to be human. Acceptance is not the right word; we should refer instead to (non)acceptance, leaving space for Bataille’s refusal to refer to sacrifice in the context of mass extermination called ‘‘the Holocaust.’’ The Copernican shift itself moves the center from the Earth to the Sun, decentering Man, and in addition, bringing a whole process of decentering: the revolution is not the result of the shift, but the shifting itself, such that something resembling ‘‘the inhuman’’ is brought in, not as the reason for the necessity of such violence, but for the necessity for it not to be, for it not to occur—that something, something else (Humanity), come into being. 34 Bataille, ‘‘Réflexions sur le bourreau,’’ 264. 35 ra, 50. Compare this with Bataille on immanence: the ‘‘animal is in the world like water in water’’ (Bataille, Theory of Religion, 19, 24). 36 Agamben, ‘‘Absolute Immanence,’’ in Potentialities: Collected Essays in Philosophy (Stanford: Stanford University Press, 1999), 230. 37 These problems are compounded in L’État d’exception: Homo sacer II.1 (Paris: Le Seuil, 2003). In this text, Agamben focuses on the normalization of the ‘‘state of exception’’ that justifies a militarized, ultra-policed society, and also on the hiddenness of the institutionalization of the moment of exception as the nonlegitimate ground of law (here returning to Benjamin). He does not, however, stay within the discussion of Roman practice, but extends the notion to Nazi Germany (largely implicitly), to Guantánamo Bay, and the ‘‘war against terror-

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ism.’’ Agamben does not develop the historicized trajectory of notions of the state of exception, or of the groundings of legitimized force, but instead presumes a continuity between the Roman terminology and modern political practice, making his analysis ahistorical. In addition, then, to not acknowledging other sources and theorizations of the sacred, he ignores the rethinking of the question of exception by writers such as Montesquieu and Rousseau, whose writings have a direct bearing on the political legal systems of the West. Perhaps it was too obvious for Agamben to cover these writers, but just as with Bataille, he ends up reiterating Rousseau’s reading of the suspension of the law in Rome (L’État d’exception, 33), the position of the dictator (81–82), and the right to revolt (51). In the case of the sacred, there is a productive aporia between Agamben and Bataille, but with the ‘‘exception’’ there just seem to be gaps in the theory, a theory bolstered by assertive claims about the true meaning of Roman legal terms, which sits oddly with the highly nuanced reading of ‘‘exception’’ as the place where law is not (itself ), rather than just an absence of law. 38 College of Sociology, 114. 39 Notes for L’expérience intérieure, oc, 5:443n. 40 The di√erence between Agamben and Bataille here slowly turns to a constructive di√érance, when we consider Agamben’s claims about the law being perpetually based on where it is not, where the temporary and fleeting is (not) the place of the permanence and solidity of law. See L’État d’exception, 70, 87–88. 41 Bataille, Accursed Share, 3:370. 42 Compare this with Bataille’s view of the location of transgression: ‘‘transgression does not deny the taboo but transcends it and completes it’’ (Eroticism, 63); ‘‘transgression suspends a taboo without suppressing it’’ (36). Transgression then, like Agamben’s sovereign exception, is the double moment of guarantee of the system and that which exceeds the system. 43 Bataille, The Accursed Share, 3:32, 197, 198, 204, 221, 254, 311. 44 Bataille, The Accursed Share, (New York: Zone, 1991), 2:169. 45 Bataille, The Accursed Share, 3:284. 46 Agamben later extends this, in L’État d’exception, to the rule of law as such, arguing that it is fundamentally imbued with a spurious ‘‘exceptionality.’’ Does this undermine the project of Remnants of Auschwitz? 47 All references come from the following passage: ‘‘Gott ist der Schöpfer des Universums. Dies ist der reinste Ausdruck der Erhabenheit selber. Zum erstenmal verschwinden jetzt nämlich die Vorstellungen des Zeugens und blossen natürlichen Hervorgehens der Dinge aus Gott und machen dem Gedanken des Scha√ens aus geistiger Macht und Tätigkeit Platz. Gott sprach: es werde Licht! Und es ward 246 paul hegarty

Licht, führt schon Longin als ein allerdings schlagendes Beispiel der Erhabenheit an. Der Herr, die eine Substanz, geht zwar zur Äußerung fort, aber die Art der Hervorbringung ist die reinste, selbst körperlose, ätherische Äußerung: das Wort, die Äußerung des Gedankens als der idealen Macht, mit deren Befehl des Daseins nun auch das Daseiende wirklich in stummen Gehorsam unmittelbar gesetzt ist’’ (Hegel, Vorlesungen über die Ästhetik, in Werke, 20 vols. [Frankfurt: Suhrkamp, 1970], 13:481). The existing English translations miss most of what is going on in this section. Acknowledgment and emphatic thanks must go to Caitríona Leahy for her translation and assistance in the interpretation of this text.

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rainer maria kiesow Translated from the German by Roger Berkowitz

l aw and life ‘‘Now he stood there naked.’’ Bare, bared, pure life. The old trial procedures no longer convinced. The o≈cer, who executed the judgment that flowed from the traditional procedure, recognized that it was now time to execute the end of the procedure itself—with the help of the machine that he so loved and that had written the judgment of the adjudged on the body, the naked body. It was as it always had been. The o≈cer listened to the statement and immediately handed down the judgment. Further investigation, even summonses and questioning, would only have complicated the matter. Lies would have piled upon lies and only confusion would have been produced in the end. Instead, everything was easy. ‘‘Guilt is always doubtless.’’ In any case, this principle— according to which the o≈cer decided—had had unlimited validity under the old commandant. The commandant had concealed the forms of judgments, drawn in his own hand, in a briefcase—he was a soldier, judge, builder, chemist, and artist. The adjudged never knew their judgment. It was never made known to them. And to what end? They experienced it on their bodies. Now, however, a new time had arrived. A time in which travelers from afar could come. A time in which a new commandant showed a desire to involve himself in the o≈cer’s court. A time in which doubts arose in the doubtless procedure. Who was guilty of these doubts? ‘‘Guilt is always doubtless.’’ Especially one’s own. Thus the o≈cer executed the first judgment that was known to someone adjudged before he experienced it on his body. For his own judgment, the o≈cer had sought out from the commandant’s files: ‘‘Be just!’’ He laid himself in the apparatus that now began, calmly, to stick needles in the o≈cer’s skin and flesh. ‘‘The needles danced upon the skin,’’ and they wrote out the ver248

dict. Then, suddenly, a wheel fell from the machine and then another, a larger, a smaller, an entire group of wheels fell and rolled to the sand. ‘‘Without a doubt, the machine was shattered.’’ Yet before it died, it killed the o≈cer. The verdict was not to be read, the blood flowed; the water jets that should have washed it away to make possible the deciphering of the script failed. What customarily occurred first in the twelfth hour of writing passed now within a few moments. The needles skewered the body, the harrow drew it to the side, so that it fell into the pit. It did not fall. The traveler saw into the face of the o≈cer, ‘‘through the forehead went the point of the enormous iron quill.’’

Why does Giorgio Agamben not tell this story in his Homo Sacer? Of course, it would be ridiculous to give an answer regarding Agamben’s intentions. Who knows what Agamben thinks? And still, the question presents itself after reading Homo Sacer: why does Agamben ignore the story, written in 1914, published in 1919, that Kafka called ‘‘In the Penal Colony?’’≤ Certainly not from unfamiliarity. Agamben has an outstanding knowledge of Kafka’s work≥ and has certainly not overlooked this famed story. Precisely, therefore, does the question of why assert itself. For what Agamben is driving at happens concretely, in vivo, in the penal colony, more than in all the rest of Kafka’s texts that Agamben draws on and painstakingly interprets. What happens? ∞

Law, enactment, judgment are written into life, bare naked life. And that signifies not only—as in Kafka’s short posthumously published work ‘‘Fürsprecher’’∂ —the disappearance of the di√erence between accusation, defense, and judgment since the ‘‘majesty of the law’’ forbids the ‘‘independent self-insertion of man.’’ No, in the penal colony the di√erence between law and life itself disappears. The body becomes a living parchment upon which the law writes its commands. Mechanically, completed without the self-insertion of man. In the Penal Colony there are only the rights of man. Law is drawn on living bodies that die precisely because law is written into them. If man and law come together on the skin and in the flesh of naked life, this leads from bare life to an always only bare death. The penal colony practices the indi√erentiability of law and life. law and life

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What is Giorgio Agamben driving at? The absence of di√erences. Agamben claims and analyses the undecidability between fact and law (27, 170√.), between constituting power and sovereign power (42), between law and life (53, 55, 174, 185, 187), between life and politics (149), between the state of exception and juridical rule (168), and between the production of law and application of law (173). Agamben tells a story of this indi√erentiability, of this de-di√erentiation, of the blending of oppositions. In the center of the story stands the relation between law and life. Three facets of this relation are told. One literaryhistorical, one mythical, and one as brutal as possible. The literary-historical facet unfolds in discussion with Carl Schmitt, Walter Benjamin, and Franz Kafka. ‘‘The sovereign is he who decides over the state of the exception.’’ With this thunderous sentence begins the ‘‘Political Theology’’∑ of the Crown Jurist of the Third Reich, who a few sentences later characterizes the ‘‘paradox of sovereignty’’ (15) as no one before: ‘‘[The sovereign] stands outside the normally valid legal order and nevertheless belongs to it, for he is responsible for the decision, whether the Constitution can be suspended in toto.’’∏ This on-the-one-hand/on-theother-hand, inside/outside is characteristic of the state of exception that— pace Agamben—creates a situation in which it is no longer to be decided whether a legal or a factual condition is at issue. Thus do fact and law become undecidable: ‘‘The sovereign decision traces and from time to time renews this threshold of indistinction between outside and inside, exclusion and inclusion, nomos and physis, in which life is originally expected in law’’ (27). The indi√erentiability of law and fact—this is the first mixing and blurring of di√erences. Law and life are woven into each other in society, or, as Savigny, cited by Agamben (27), writes: ‘‘law has no existence in itself, but rather has its being in the very life of men.’’ Still, what does this claim of indi√erentiability mean? Without historical, actual, concrete context— nothing. Only in the further facets of Agamben’s history of non-di√erences do law and life descend to earth from the heaven of theory. Regarding theory, it is best to read Carl Schmitt himself: Every general norm demands a normal formation of life relations upon which it ought to be applied in accordance with the facts of the case and which subsumes the life relations under normative rules. The norm needs 250

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a homogeneous medium. This factual normality is not merely an ‘‘external presupposition’’ that the jurist can ignore; rather, it belongs to its immanent validity. There is no norm that would be applicable upon chaos. Order must be produced so that the legal order has sense. A normal situation must be created, and the sovereign is he who decides definitively whether this normal situation actually reigns. All law is ‘‘situational law.’’ The sovereign creates and guarantees the situation as a whole in its totality. He has the monopoly on this final decision. Therein lies the essence of state sovereignty, which therefore is to be defined juridically not as a monopoly of force or mastery, but rather as a monopoly over decisions (the word ‘‘decision’’ is used in a universal sense that will be further developed). The exceptional case manifests the essence of state authority most clearly. Here, the decision cleaves itself from the legal norm and (in order to formulate it paradoxically) the authority proves that it does not need to be right in order to create a right.π Surely, Carl Schmitt formulates a paradox: the positing of law itself requires no legal positing. With the paradox, however, not only is a di√erence not canceled—be it that of outside and inside, exclusion and inclusion, nomos and physis, law and life—but rather the opposite, a di√erence is posited: the di√erence between politics and law. The political system—for Schmitt’s Weimar era as for our modern democracies—posits norms that are nothing other than politically driven programs (from the sovereign) that find entry into the juridical world of communication only when they must be spoken about, when life meets up with law in a legal case that must be settled or decided. Even in dictatorships, when a Führer (and not a parliament) decides upon the state of exception, the situation is, in principle, not di√erent. Talk of an unjust (dictatorial) state is grounded on an essential, morally loaded concept of law proper that aims to imbue a minimum ethical content; in the concept of law proper is an insistence on the correct law that expels law, the historically di√erentiated functions of law, into invisibility. In this way, the exception is precisely not the ‘‘element in law that transcends positive law in the form of its suspension’’ (17). The exception is rather an element of positive law itself. It is inherent in law. In Homo Sacer, Giorgio Agamben never o√ers a definition, idea, or a theory of what he understands to be ‘‘law.’’ One thing, however, appears clear to the reader: Law is something that can be contaminated, that can be indi√erentiable, that can be suspended in exceptions. Does not this idea of impurity presuppose law and life

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something pure? And is not life in its multiplicity and infinite folds a grand machine that constantly produces ever new particularities, exceptions, situations, and cases—and is not law too a grand machine that constantly communicates new opinions, decisions, analogies, actual acquittals, delays, apparent acquittals,∫ and thus constant exceptions? What does law signify? Nothing! Agamben sees this and doesn’t see it. On the one hand, he recognizes the parallels between language and law. ‘‘Language [is] the pure potentiality to signify’’ and it finds itself therefore ‘‘in a permanent state of exception’’ (21). Language is language, and outside of language is nothing. The same holds for law: ‘‘The particular structure of law has its foundation in this presuppositional structure of human language’’ (21). Agamben references Kant’s ‘‘bare form’’ of law,Ω the absence of a content of law in Kafka, Benjamin’s observations regarding this nothing, this validity without significance. And precisely this empty content, the intangibility, unpredictability, insignificance of law, the ‘‘empty potentiality of law,’’ leads to the conclusion that law no longer lets itself be di√erentiated from life. On the other hand, however, Agamben no longer sees that law signifies nothing. How can something insignificant (law) identify itself with something significant (life)? Perhaps something insignificant could let itself be identified with something insignificant. An operation and a result without significance. Agamben does not once share what life signifies. From his discussions of the ancient discourse concerning life—zo¯e and bios—it does not emerge that life has no significance or that ‘‘bare’’ life is mere bare life and not life empty of content. What does the indi√erentiability of law and life presuppose if life has a significance and law has none? Critique. Agamben’s implicit legal concept nourishes itself on a critical gesture. Agamben’s legal view is a critique of law. His three literary authorities stand critically in opposition to law—at least as Agamben sees it. Carl Schmitt destroys law in the apotheosis of the state of exception. Franz Kafka describes the conceptually empty face of the law. Walter Benjamin unearths the violence of law. Agamben’s indi√erentiability of law and life is surely indi√erent itself; it presupposes, however, as indi√erent, di√erence of law and life—that it could also be otherwise, indeed must—that law must be di√erentiated from life, that ought might still assume its place next to being. Ought. This ‘‘ought,’’ this possibility that it might also be otherwise, this breeding ground of every normative cosmos, is Agamben’s blind spot. Agamben doesn’t see that with his negative legal theory—law without content becomes life and this life is, as legal-life or life-law, defenselessly o√ered to death—he presupposes a 252

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positive image of law that transcends positive law. This image of law is nothing other than a natural law that is in principle understandable. For the law that is without content that has become life or the life that has become law without content—the bare life—must still be able to be di√erentiated; otherwise it would be only a nothing or an all in the sea of the universe. And what about Savigny, who nevertheless said that law, its essence, is the life of man himself ? Agamben cites this sentence in two places: in the text and as the motto prefixed to the book. Only there, before the text, does Agamben fully reproduce Savigny’s claim, inclusive of the following sentence: ‘‘Law has no existence for itself, its essence is the life of man himself, seen from one side.’’ Seen from one side—it all depends on that. Savigny hits upon di√erences. Agamben sees indi√erentiabilities and does not see the di√erences that he runs into. The thesis of the indi√erentiability of law and life presupposes a critique of law that finds its summit in the engagement with the world of the concentration camps in National Socialism, and whose emblematic foundational figure is the homo sacer of antiquity. No one knows the homo sacer. Only meager fragments remain of his existence as a criminal who can be killed without punishment, scraps handed down by a tradition that sees him as the living dead running through city and country. For Agamben, it is a ‘‘legal figure’’ of archaic Rome (80), although the sources o√er neither a figurative nor a juridical outline of homo sacer. Wilhelm Rein,∞≠ Rudolph von Jhering,∞∞ Theodor Mommsen,∞≤ E. Brunnenmeister,∞≥ Max Weber,∞∂ Kurt Latte,∞∑ Max Kaser,∞∏ Wolfgang Kunkel,∞π Giuliano Crifò,∞∫ Yan Thomas∞Ω and—now bringing the discussion together—Claire Lovisi≤≠ have (with others) viewed, weighed, and judged in di√erent ways the rarified evidence from the ancient curse ‘‘sacer esto,’’ and among them can be made out three basic camps. While one camp sees the concept of sacrality in the religious sphere, the others make it out to be the beginning of a worldly public penal law. Probably it is most convincing to see sacrality within the frame of the private accusation at a time when the public penal law was not yet di√erentiated from private law. Giorgio Agamben sees in homo sacer the radical absence of (public or private) worldly and religious law. Neither divine nor human justice and neither divine nor human legal judgment falls to the outlaw. He cannot be sacrificed and he is not set before a court. The ban that hits the homo sacer lets bare life exist. ‘‘Life that cannot be sacrificed and yet may be killed is sacred life’’ (82). law and life

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Agamben’s whole point, his clou, consists of his joining the homo sacer with Carl Schmitt’s doctrine of sovereignty. The homo sacer stands beyond religion and law. He finds himself in a kind of doubled state of exception, a separate ‘‘zone of indistinction’’ (83). And precisely in this zone can the sovereign act in a permanent state of exception: ‘‘The sovereign sphere is the sphere in which it is permitted to kill without committing homicide and without celebrating a sacrifice, and sacred life—that is, life that may be killed but not sacrificed—is the life that has been captured in this sphere’’ (83). And thus can Walter Benjamin’s question concerning the ‘‘Origin of the dogma of the holiness of life’’≤∞ be answered, according to which Benjamin himself already thought ‘‘the bare life’’ (‘‘das blosse Leben’’).≤≤ Life in the sovereign ban is holy—thus as holy may it be killed, but not sacrificed—and ‘‘in this sense, the production of bare life is the originary activity of sovereignty’’ (83). Seen from the perspective of legal history, Agamben’s triple jump from the old Roman homo sacer over (Benjamin’s) bare life to (Schmitt’s) sovereignty is a jump into the bare void. No one knows—precisely or even approximately—what sacer signified in early Rome. The idea that in that time a religious, juridical, politically di√erentiated representational world existed and produced bare life in the state of exception is to be relegated to the realm of historical fantasy. The relations were raw—there can be no talk of a city in the classical Roman sense. The scraps of information validate a sacrality that signifies and can signify whatever touches upon the sphere of kinship. Between the criminal and the victim subsists a particular relation of violence. The man was sacer who sold his wife. The child who hit his parents and the patron who violated his fiduciary duty to his client were also sacer. Even if the curse ‘‘sacer esto’’ would later be extended to other delicts, it is fully unknown to what extent the curse unleashed the corresponding consequences. In any case, now pecuniary consequences attached themselves, including the confiscation of property that already refers to the future of law. Of ‘‘real’’ homines sacri—beyond the fragmentary normative determinations—one knows nothing. Whether there ever were ‘‘living statues’’ (99) is pure speculation. The homo sacer remains a historical enigma—a myth. But, Agamben is clearly not interested in historiography. Still, he thoroughly discusses the legal-historical research regarding homo sacer without ever making clear the intellectual function of his telling. Correspondingly, the historiographical observations break o√ and disappear to a certain extent into the void in order to make room for the idea of bare life. As it did 254

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already for Carl Schmitt, so now for homo sacer: inside and outside, exclusion and inclusion, law and life interweave and become indistinguishable. The more that homo sacer stands outside the human and divine spheres, the more is his bare life nevertheless bound up with the juridico-political order. And the di√erence hides itself again in the indi√erentiability. Neither politics nor law nor order get a hint of a description. Homo sacer is a myth; bare life, as a concept derived from sacrality, is a pure mystification, and thus one that precisely fits with Benjamin’s text on messianic violence. The sovereign, who now subsists beyond all other men against the homo sacer, has a free hand. No one holds him back. However, precisely in this penalty-free, bloody act—Benjamin notes: ‘‘For blood is the symbol of bare life’’≤≥ —is sacrality, ‘‘the originary form of the inclusion of bare life in the juridical order’’ (85). Law, and even more the legal order, remains always in the background of inclusive exclusions and exclusive inclusions as that from which the indistinguishable complex of law and life must be always again di√erentiated, so that talk of the indistinguishability doesn’t end in unidimensional nonsense. In Agamben’s homo sacer, law and life approach one another, become indistinguishable, and give birth to bare naked life. In a society in which conflicts, disappointed expectations, and lonely hopes are not yet promised, negotiated, and decided in a di√erentiated legal system, the di√erence between law and life is a senseless di√erence—it characterizes nothing and is marked by empty markings. Here no di√erences are marked between law and life, but not because law and life are indistinguishable, but rather because law is no law, in the contemporary sense of functional di√erentiation, and life is no life, as it has been created intellectually as life by the life sciences since the late eighteenth century. Still, as said, Agamben’s view does not concern history, rather a story, in which the homo sacer, who mixes law and life in his blood, leads from early antiquity into the modern concentration camp. Here, in Auschwitz, a bloody reality emerges from out of the myth of homo sacer, and the camp, with its Homines-sacri-Inmates, is transformed into the biopolitical paradigm of the modern. The concentration camp in National Socialism interests Agamben not as a ‘‘historical fact’’ (166). Rather, he sees the concentration camp as ‘‘the hidden matrix and nomos of the political space in which we are still living’’ (166). The camps become for Agamben a kind of monstrous melting pot. The recipe is a mixing, mingling, and incorporating based on the prolaw and life

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duction of indistinguishables, with the consequence that once again only bare life comes to exist. Agamben appears at first not to make it as easy on himself as did the jurists who popped up en masse after 1945 and denied the legal constitutionality of their past in order to be able to say as jurists that they had had nothing to do with the so-called lawless state, the non-law. Agamben recognized the many-layered legal order of the National Socialist state. He even conceded a ‘‘juridical basis’’ to the concentration camp system (167). By this juridical basis, however, is not meant the many administrative, organizational, commercial, private, military, and criminal law decrees, orders, laws, doctrines, jurisdictions. The juridical fundament of the Nazi state is taken, for Agamben, exclusively from ‘‘a state of exception under martial law’’ (167). And so here, in the third of Agamben’s stories, Carl Schmitt’s literary theory is unified with Agamben’s interpretation of the camps. The camp becomes a paradigm: toward a paradigm of the extinguishing of differences. The state of exception becomes the norm, the norm becomes the state of exception (168, 170). Law becomes fact and fact becomes law (170√.). ‘‘Absolute indistinction’’ everywhere (171). The judge in the era of the concentration camp is overcome by indeterminate legal concepts and general clauses. Whether a judge or a ‘‘civil servant,’’ no one is capable any longer of orienting himself by a rule, a situation, or a fact. The setting of norms and the application of norms are no longer distinguishable. In the camp, this impossibility of di√erentiating shows its martial face. ‘‘The camp is the space of this absolute impossibility of deciding between fact and law, rule and application, exception and rule’’ (173). And this absence of distinction, these fields of unities, these spaces without di√erence, the withdrawal of the normal, the normality of the exception, produce again naked bare life. The concentration camps have produced this bare life en masse, so that they can kill en masse. Therein lies an uncanny force, since bare life can only be killed; thus the uniting of law and life, the ‘‘inscription of life in the order,’’ must end in ‘‘a lethal machine’’ (175). Today, in the waiting rooms of departure areas of airports, harbors, train stations, and in the ravines of the Balkans, Agamben sees the modern bare life of the lawless, of modern biopolitics: ‘‘In its extreme form, the biopolitical body of the West (this last incarnation of homo sacer) appears as a threshold of absolute indistinction between law and fact, juridical rule and biological life. . . . Today a law that seeks to transform itself wholly into life is more and more confronted with a life that has been deadened and mortified into juridical rule’’ (187). The homo sacer has landed in the modern. 256

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Here—in Agamben’s observations of the concentration camp system— finally that becomes clear that already was implied in his discussion of Carl Schmitt. The constant claim, repeated like a mantra, of the indistinguishability between law and fact, between states of normalcy and states of exception, between law and life, leads to a critique of law, of the force of law, of the law of violence. Still, what remains? A di√erence. The di√erence between law and non-law. The di√erence between correct law and false law. The di√erence steals itself easily but surely into Agamben’s theory and history of law in National Socialism, or more universally, of law in dictatorship. Also in dictatorships there are communications based on juridical categories. These multiple legal communications under the circumstances of dictatorship are not really analyzed yet. In dictatorships, law was thought, written, decided, administered, punished. The concentration camp itself— and Agamben brings this to the fore in order to let it be immediately indistinguishable—is bound within an entire system of juridical rules. From 1933 to 1945 laws were made and judgments spoken. Independent from historical observation, the indistinguishability of law and (bio)politics and life claims that the biopolitical, life-sated law is no law. As already shown in the explanation of Schmitt’s doctrine of sovereignty, the indistinguishable is—life and politics sucking—law denied the law to be law. Ultimately, because it is no law, not good law, not law with a ‘‘separation of powers’’ (173). However, Agamben has smuggled in a material category of valuation for what law is. A category that mistakes the functioning of law—and law can always only function, to whichever purpose—as precisely the functioning of law in dictatorship. Agamben’s legal theory of dictatorship clings to the foil of ‘‘normal juridical criteria.’’ The glimpse through this foil allows all di√erences to swim away and only non-law, that is an amalgam of law and life, to appear. Why doesn’t Agamben tell Kafka’s story ‘‘In the Penal Colony’’? Nowhere else is the indistinguishability of law and life more impressively pictured, and still it is absent from Homo Sacer. Not a single word. The answer to the question is: because the penal colony shows the unification of law and life as a sign of an old order, the old order of penal colonies. The traveler ‘‘felt the power of the earlier times,’’≤∂ in which the letters of the laws were ‘‘written on the body’’ of men.≤∑ Law and life melt into one in this old order that celebrates the state of exception as normality and normality as the state of exception: law and life melt into a death that meets bare life. ‘‘Now he stood there naked.’’ The indi√erentiability of law and life belongs, law and life

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in Kafka, to the past. As powerfully as this is to be felt, so heartfelt and forceful does the traveler threaten the inhabitants of the now-destroyed past staying behind in the penal colony after his departure and restrains them from traveling with him in a world in which one travels. The machine, this ‘‘lethal machine’’ (175) that unifies law with naked life was irrevocably destroyed. Law and life, the indistinguishability of law and life, is an old, bygone history. A (his)story that the philosopher uninterested in history cannot tell, because it contributes nothing for the present, for the hidden matrix, for the nomos of the modern, and because it denies the contribution of the unification of law and life. The world of the penal colony must be forgotten so the past of this past doesn’t reject the apparent present of the homo sacer. In Kafka’s modern world of the trial, in which penal colonies are absent and o≈ces are present, law is no longer written upon the body. In the modern world of writing, of lettres, Kafka’s ‘‘The New Lawyer’’ sinks himself in the law books and reads. The Trial is full of files that have been written, filed, stored, and read. It is a world full of texts. Texts that no one understands, that are indecipherable. In the old penal colony a sense still attached to the words, even when it could be investigated only with great di≈culty. ‘‘Read,’’ demanded the o≈cer of the traveler, as he showed him the maps with the paradigms of the judgments to be enacted on the body, judgments that themselves were nothing other than the legal commands themselves. ‘‘I can’t decipher it,’’ noted the traveler. The o≈cer answered: ‘‘One needs to read therein for a long time. Even you will ultimately know with certainty. There ought naturally to be no simple writing; it ought not to kill instantly, but rather on average only in a period of twelve hours.’’ In The Trial, K. sees in the law books only pornographic reproductions; the lawyer remains a mystery, and K. never comes to see a judge, only pictures; Titorelli confuses K. with his explanations of the process, and the prison chaplain tells a peculiar story. In the modern world of the trial, law no longer has significance. It is law as law through law. It is pure validity. And it enables decisions—the two men ‘‘observed’’ K’s death as ‘‘decision.’’ This radical turn away from content and the radical reference to function, the functioning, the dropping of the what and why questions, the dismissal of the old-European question of su≈cient reason, leads into the void of law, what at most may still create apparent significance. We do not know what law is, we cannot know it. We don’t recognize it because it is not recognizable.≤∏ It has no innards, no content, that could be poured out. The jurists 258

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believe nevertheless that they can peer behind the letters. Through interpretation, they seek to bring the law to light. Still, the letters of the law remain black. Indeed, they appear to say something and seduce us to uncover a sense in them, what they say. Respect before the writing!—insists the prison chaplain. But do they say anything at all? Odysseus, at least as the blind Homer tells it, heard, bound to the mast, the song of the Sirens while the oarsmen looked ahead with wax in their ears. As Kafka tells it, the Sirens had ‘‘even a more terrible weapon than song, namely, their silence.’’ Odysseus surely saw the throats of the ‘‘violent singers’’ stretch themselves, their mouths half open, ‘‘the deep breath’’ and the ‘‘tearful eyes.’’ Still, he ‘‘did not hear their silence, he believed they sang.’’ Before the song, perhaps, he would have been able to save himself; ‘‘before their silence, certainly not.’’ ‘‘Nothing on earth can resist the swelling exaltation that follows from the feeling of having vanquished [the Sirens] by one’s own power.’’ The ‘‘silence of the Sirens’’≤π manifests itself: ‘‘Precisely as [Odysseus] was nearest to them, he knew nothing more of them.’’ The law that is valid in the modern world of the trial is, for Giorgio Agamben, an unbearable phenomenon. He cannot accept the void of law. Since precisely this void leads law to life. ‘‘Law that has lost its content ceases to exist and becomes indistinguishable from life’’ (53). Here the critic of law, Giorgio Agamben, encounters the critic of violence, Walter Benjamin, in their interpretations of Kafka’s The Trial: ‘‘The existence and the very body of Joseph K. ultimately coincide with the Trial; they become the Trial’’ (53). Thus does Agamben report little of the silence of the Sirens and the unavoidable error of Odysseus, and instead concentrates on the—for Kafka typically elliptical—afterward, according to which Odysseus perhaps had foreseen the silence of the Sirens and had held out against them ‘‘the aforementioned pretense as a sort of shield.’’ One can’t pursue the most accurate interpretation of Kafka, but in any case Kafka wrote of his afterward, it is ‘‘not to be grasped by human understanding.’’ Interpretations can, however, be interpreted from their own side. Agamben denies law in The Trial and he denies the incomprehension of Odysseus. The indecipherability of law produces empty law, law without content. Therefore law is indi√erentiable from life, and this indi√erentiable life can be killed. Still, only in the penal colony are law and life one, and only in the penal colony can law be deciphered. Now the final answer to the question of Giorgio Agamben’s silence regarding the penal colony can be given. Writing, the writing of law, that becomes indecipherable, becomes life law and life

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(55). That means, law must be deciphered, so that the homo sacer can lose his sacrality once again. So that he can achieve law. Law that is void signifies lawlessness. Lawlessness of man on the borders of society. However, the indecipherability of law dissolves the di√erence between center and periphery—when law loses its content, lawlessness encounters all in principle. This idea has a premise: Law could be deciphered, the correct law could be found. Still, it is precisely this deciphering that leads to death, to death that permits no alternative, because the deciphering kills every alternative. In the penal colony, the machine murders the life of the men of doubtless guilt. ‘‘Guilt is always doubtless.’’ Just so, the deciphering kills every doubt. In any case, for he who deciphers. Precisely this deciphering brings death. The deciphering that conceals the death ought not to be manifest, understanding ought not to lead to death, for otherwise the critique of law without content would shatter on its bloody alternative. One could then see that the hidden matrix of the modern is not grounded on the (old) homo sacer, but on the (new) ius sacrum. The old myth is dead. And ‘‘la vrai vie est absente’’ (Arthur Rimbaud). Now the (new) law stands there naked. Out of it, all and each can be. notes 1 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998). The page numbers in the text are to this edition. 2 The text draws upon the rendering in Franz Kafka, Sämtliche Erzählungen (Frankfurt: Fischer Verlag, 1970), 100. 3 He has even defended Kafka—‘‘poeted’’ like Kafka—against Kafka’s interpreters: Giorgio Agamben, ‘‘Kafka Defended against His Interpreters,’’ in Idea of Prose (Albany: State University of New York Press, 1995), 137. 4 Kafka, Sämtliche Erzählungen, 322. 5 Carl Schmitt, Politische Theologie: Vier Kapitel zur Lehre von der Souveränität, 2d ed. (Munich: Duncker und Humblot, 1934), 11: ‘‘Souverän ist, wer über den Ausnahmezustand entscheidet.’’ 6 Schmitt, Politische Theologie, 13. 7 Schmitt, Politische Theologie, 19. 8 See the explanation by the painter Titorelli in Franz Kafka, Der Prozeß (Frankfurt: Fischer, 1990), 205. 9 Immanuel Kant, Kritik der praktischen Vernunft, in Werke, ed. Wilhelm Weischedel, 5th ed., 10 vols. (Darmstadt: Wissenschaftliche Buchgesellschaft, 1983), 4:136. 10 Das Kriminalrecht der Römer von Romulus bis auf Justinian (Leipzig, 1844), 30, 137. 260 rainer maria kiesow

11 Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung (Leipzig: Breitkopf und Härtel, 1852), 1:279. 12 Römisches Strafrech (Leipzig: Duncker und Humblot, 1899); see also Theodor Mommsen, Heinrich Brunner, Zum ältesten Strafrecht der Kulturvölker: Fragen zur Rechtsvergleichung (Leipzig: Duncker und Humblot, 1905). 13 Das Tödtungsverbrechen im altrömischen Recht (Leipzig: Duncker und Humblot, 1887), 149. 14 Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie, second half vol., 4th ed. (Tübingen: Mohr [Siebeck], 1956), 389. 15 Römische Religionsgeschichte (Munich: Beck, 1960), 38; Olof Gigon, Wolfgang Buchwald, and Wolfgang Kunkel, eds., Kleine Schriften zu Religion, Recht, Literatur und Sprache der Griechen und Römer (Munich: Beck, 1968), 393. 16 Das römische Privatrecht, first part, 2d ed. (Munich: Beck, 1971), 26, 60, 148, 169. 17 Untersuchungen zur Entwicklung des römischen Kriminalverfahrens in vorsullanischer Zeit (Munich: Verlag der Bayerischen Akademie der Wissenschaften, 1962), 41, 109; Ein direktes Zeugnis für den privaten Mordprozeß im altrömischen Recht, in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung, vol. 84 (1967), p. 382√.; (together with Roland Wittmann) Staatsordnung und Staatspraxis der römischen Republik, second part (Die Magistratur) (Munich: Beck, 1995), 556. 18 ‘‘Exilica causa, quae adversus exulem agitur,’’ in Du châtiment dans la cité: Supplices corporels et peine de mort dans le monde antique (Rome: École française de Rome, 1984), 453. 19 ‘‘Vitae necisque potestas: Le père, la cité, la mort,’’ in Du châtiment dans la cité: Supplices corporels et peine de mort dans le monde antique (Rome: École française de Rome, 1984), 499. 20 Contribution à l’étude de la peine de mort sous la république romaine (509–149 av. J.-C.) (Paris: De Boccard, 1999), passim (esp. 14–62). 21 Walter Benjamin, ‘‘Zur Kritik der Gewalt,’’ in Zur Kritik der Gewalt und andere Aufsätze (Frankfurt am Main: Suhrkamp, 1965), 29, 63. 22 Benjamin, ‘‘Zur Kritik.’’ 23 Benjamin, ‘‘Zur Kritik,’’ 59. 24 Kafka, ‘‘In der Strafkolonie,’’ in Sämtliche Erzählungen, 122. 25 Kafka, ‘‘In der Strafkolonie,’’ 103. 26 Gilles Deleuze, ‘‘Sur quatre formules poétiques qui pourraient résumer la philosophie kantienne,’’ in Critique et clinique (Paris: Les Editions de Minuit, 1993), 40, 45. 27 Kafka, Sämtliche Erzählungen, 304.

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the exempl ary exception Philosophical and Political Decisions in Giorgio Agamben’s Homo Sacer Of all the beings that are, presumably the most di≈cult to think about are living creatures [das Lebe-Wesen], because they are in a certain way most closely akin to us, and on the other are at the same time separated [ geschieden] from our ek-sistent essence by an abyss. —Heidegger, ‘‘Letter on Humanism’’

In Homo Sacer: Sovereign Power and Bare Life Giorgio Agamben draws upon metaphysics, philosophical anthropology, set theory, and the philosophy of language to advance a number of radical politico-philosophical claims. In contrast to conceptions of political community that depict it as a common ‘‘belonging’’ in a shared national, ethnic, religious, or moral identity, Agamben argues that ‘‘the original political relation is the ban’’ in which a mode of life is actively and continuously excluded or shut out (ex-claudere) from the polis. The decision as to what constitutes the life that is thereby taken outside of the polis is a sovereign decision. Sovereignty is therefore not a historically specific form of political authority that arises with modern nation-states and their conceptualization by Hobbes and Bodin, but rather the essence of the political. Similarly, biopolitics is not, as Foucault sometimes suggests, incompatible with sovereign as opposed to disciplinary power, nor is it a distinctively modern phenomenon. Instead it is the original form of politics: ‘‘the fundamental activity of sovereign power is the production of bare life as originary political element and as threshold of articulation between nature and culture, zo¯e and bios.’’ Attending to the etymology of the word decide, one can understand this sovereign decision as a cut in life, one that separates real life from merely existent life, political and human life from the life of the non-human. As this cutting defines the political, the production of the inhuman—which is correlative with the production of the human—is not an activity that politics might dispense with, say in favor of the assertion of human rights. More specifically, the Nazi death camps are not a political aberration, least of all a unique event, but instead the place 262

where politics as the sovereign decision on life most clearly reveals itself: ‘‘today it is not the city but rather the camp that is the fundamental biopolitical paradigm of the West.’’∞ The Lager is a threshold in which human beings are reduced to bare life; and the torture this life su√ers is nothing else but its ex-clusion from the polis as a distinctively human life. The bare life that is produced by this abandonment by the state is not biological life; ‘‘not simple natural life, but life exposed to death (bare life or sacred life) is the originary political element.’’≤ This is the Muselmann as described by Primo Levi in If This Is a Man. One speaks of the Shoah as industrialized mass death, and of the camps as ‘‘factories of death.’’ But the product of these factories is not death but, as Arendt puts it, a mode of life ‘‘outside of life and death.’’≥ However, if for Arendt the production of Muselmänner is antipolitical, in that the camps are spaces in which plurality is foreclosed, for Agamben it is the emergence of the essence of the political. Such claims are di≈cult for political philosophy to address, as they undermine so many of its guiding assumptions. Instead of asking us to construct and evaluate di√erent plans of action, Agamben asks us to evaluate the metaphysical structure and implications of the activity of politics as such. Instead of asking us to consider the true or proper nature of political identity, Agamben asks us to consider a threshold state of the nonidentical, the liminal. And far from bringing concepts such as rights, authority, public interest, liberty, or equality more clearly into view, Agamben operates at a level of abstraction at which such concepts blur into their opposites. He takes this approach because, like Arendt, he believes that claims to justice can be made only if one understands the ground of the political upon which both justice and injustice stand. If Foucault’s goal was ‘‘to make the cultural unconscious apparent,’’∂ Agamben’s is that of bringing to expression the metaphysics that our history has thus far only shown. He argues that, properly understood, what that history shows us is that politics is the truly fundamental structure of Western metaphysics insofar as it occupies the threshold on which the relation between the living being and the logos is realized. In the ‘‘politicization’’ of bare life—the metaphysical task par excellence—the humanity of living man is decided [si decide]. . . . There is politics because man is the living being who, in language, separates and opposes himself to his own bare life and, at the same time, maintains himself in relation to that bare life in an inclusive exclusion.∑ the exemplary exception

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What is perhaps both most intriguing and most problematic about Agamben’s work is that, unlike, say, that of Philippe Lacoue-Labarthe and Jean-Luc Nancy, it brings these claims about metaphysics into dialogue with a rich and specific set of quite concrete examples, including refugee camps, hospital wards, death rows, and military camps. All of these are sites where, on Agamben’s account, one can perceive the metaphysical negation that allows for the a≈rmation of distinctively human life: bare life, nuda vita. One way to evaluate Agamben’s claims is to consider how well they help us to describe and understand such examples.∏ Another is to ask whether Agamben’s claims are intelligible on their own account—to see, that is, whether they open themselves up to an immanent critique. This approach has a number of advantages, chief among which is that it does not demand that we simply choose whether to accept or reject Agamben’s approach in a global way; instead such an approach allows us to be open to a radically di√erent way of thinking about politics and political philosophy while at the same time maintaining some critical distance from it. In what follows I want to pursue this option by way of considering Agamben’s appropriation of the early decisionist political theory of Carl Schmitt. I will argue that Agamben’s acceptance of Schmitt’s central claims regarding political judgment make it impossible for him to weave together his suggestive reading of examples from philosophy and political history into a mode of political thought that fulfills his own ambition of ‘‘returning thought to its practical calling.’’π Agamben’s project hinges upon the paradigmatic status of the camp. But on his own account, there is an isomorphism between the exception and the example or paradigm. Given his acceptance of Schmitt’s analysis of the former as the product of the sovereign decision, this renders Agamben’s evaluation of the camp as ‘‘the fundamental biopolitical paradigm of the West’’ a sovereign decision beyond the regulation of rule or reason. As this casts his readers as either subject or enemy, it is hard to imagine how the politics it might produce will serve as a real alternative to that which it contests. It will be helpful to say a bit more first about Agamben’s central claims and the sort of valence they have in the history of philosophy. In his insistence that the history of politics must be understood first and foremost as the history of metaphysics, Agamben clearly follows his former teacher Heidegger. But Agamben’s di√erences from Heidegger are as important as the similarities between them. Crucial here is the fact that Heideg264 andrew norris

ger does not thematize bare life or its relation to the political.∫ Indeed, he would seem to echo the inclusive exclusion that on Agamben’s account produces it. Consider one of Heidegger’s more political texts, his 1947 ‘‘Letter on Humanism,’’ in which he proposes to think ‘‘the essence of action’’ (das Wesen des Handelns) in a more ‘‘decisive’’ (entschieden) way than had been previously achieved. Human action—the essence of the political— is said by Heidegger to be thinking in language. Thinking does not make or cause; action is instead revelatory, it brings things out into the open. What it brings out is that human beings are related to Being in a completely di√erent way than animal life. Animals lack language, as they have no world: ‘‘Because plants and animals are lodged in their respective environments but are never placed freely [ frei gestellt] in the clearing of Being which alone is ‘world,’ they lack language.’’ Human beings, then, will become what they really are only insofar as they make real this distinction within themselves between their animal life and their human dwelling in the house of being.Ω Heidegger suggests that he is aware of the potential di≈culties this entangles him in, but he does not directly address the problem. Instead he only adds, ‘‘But in being denied language [plants and animals] are not thereby suspended worldlessly in their environment. Still, in this word ‘environment’ [Umgebung] converges all that is puzzling about living creatures. In its essence, language is not the utterance of an organism; nor is it the expression of a living thing. . . . Language is the clearing-concealing advent of Being itself.’’∞≠ Without language, and yet not suspended in the absence of the clearing of Being that is world and whose advent is language, animal life is marginal life, life that only a decisive thought can distinguish from the human—which as history shows is itself all too easily collapsed into the oxymoron of the animal rationale. Heidegger provides a hint as to the decision this thought will make when he writes that animal life is never ‘‘freely placed in the clearing of Being which alone is ‘world.’ ’’ This suggests that it will be placed there, of necessity, under coercion.∞∞ It is precisely the implications of this coercive, negative aspect of our relation to our own embodied life that fascinates Agamben. Even Hannah Arendt, who sees that the camps force us to question the way we delineate the concepts of humanity and life, fails to break free of what we might term this logic of exuviation. As is well known, The Human Condition repeats variations of most of the gestures made by Heidegger in his letter on humanism: What has been obscured in modernity is the crucial importance to human life of action. Properly understood, action is speech; the exemplary exception

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and speech is what makes possible a world. Speaking has a revelatory function, and what it reveals—in a public place that bears obvious resemblance to Heidegger’s clearing of Being—is a public person, as opposed to a private individual. The achievement of such personhood is freedom. What is less obvious is that Arendt repeats Heidegger’s marginalization—or, perhaps better, liminalization—of animal life. This is obscured by her seeming rejection of Being and Time’s analysis of being-toward-death: ‘‘since action is the political activity par excellence [and since acting involves making a radical new beginning], natality, and not mortality, may be the central category of political, as opposed to metaphysical, thought.’’∞≤ But this passes over the strange importance immortality retains for Arendt. The Human Condition’s first chapter—which not coincidentally shares the title of the book—ends with a section entitled ‘‘Eternity versus Immortality.’’ Here Arendt argues that while participation in the infinite is the ideal of the philosopher, immortality is that of the political actor. The first is an atemporality that is available only to the individual contemplative, who on Arendt’s account experiences ‘‘a kind of death’’ in thus leaving the world of men. Immortality in contrast is endurance in time. It is sought by human beings insofar as they are mortal: ‘‘Men are ‘the mortals,’ the only mortal things in existence, because unlike animals they do not exist only as members of a species whose immortal life is guaranteed by procreation. The mortality of men lies in the fact that individual life, with a recognizable life-story from birth to death, rises out of biological life. This individual life . . . cuts through the circular movement of biological life.’’∞≥ It must do this, as ‘‘the distinction between men and animals [in Arendt’s own German translation of The Human Condition, ‘‘bloßem (tierischen) Lebewesen’’] runs right through the human species itself.’’ Hence Arendt silently accepts the judgment of the ancient Greeks that only those ‘‘who ‘prefer immortal fame to mortal things’ are really human.’’∞∂ Noting this brings out the continuity of The Human Condition with the earlier Origins of Totalitarianism, which had argued that one of the ‘‘decisive step[s] in the [camps’] preparation of living corpses [was] making martyrdom, for the first time in history, impossible.’’ Arendt cites a camp victim: ‘‘ ‘To demonstrate when death can no longer be postponed’ ’’—that is, to make one’s own decision on this question—‘‘ ‘is an attempt to give death meaning, to act beyond one’s own death. In order to be successful, a gesture must have social meaning.’ ’’∞∑ Politics—where one struggles to become a public person distinct from the private self—is not merely a sphere in which plurality is celebrated. As a sphere in which one form of life gives birth to another, it is 266 andrew norris

also one in which life is placed into question; ‘‘as if,’’ in Agamben’s words, ‘‘politics were the place in which life had to transform itself into good life and in which what had to be politicized were always already bare life. In Western politics, bare life has the peculiar privilege of being that whose exclusion founds the city of man.’’∞∏ Agamben’s Homo Sacer project—of which only the two full volumes have as yet appeared—is devoted to the justification of and elaboration upon this claim. The title of the first volume names the three moments of Agamben’s analysis: Homo Sacer: Sovereign Power and Bare Life. Homo sacer is a figure from Roman law, ‘‘life that cannot be sacrificed and yet may be killed.’’∞π This life as exposure to death is what Agamben finds in the Lager: ‘‘The Jew living under Nazism is . . . a flagrant case of homo sacer. . . . The truth—which is di≈cult for the victims to face, but which we must have the courage not to cover with sacrificial veils—is that the Jews were exterminated not in a mad and giant holocaust but exactly as Hitler had announced, as ‘lice,’ which is to say, as bare life.’’∞∫ The term holocaust describes the destruction of European Jewry as a sacrifice, suggesting that we compare the extermination camps to holy altars upon which burned o√erings are placed. It is for just this reason that Agamben rejects the use of the term as carrying with it an anti-Semitic history.∞Ω The camps of the Shoah are better understood as sites for the production of homo sacer, life that is, as the etymology of sacred suggests, both blessed and cursed, both included and excluded from the community—and ultimately both living and dead, both human and inhuman. In the ‘‘ ‘politicization’ of bare life’’ in which ‘‘the humanity of living man is decided,’’ the threshold between the human and inhuman must be crossed, and the two distinguished. The camps are where this process is enacted most vividly: ‘‘The Muselmann . . . marks the threshold between the human and the inhuman.’’≤≠ As his title suggests, Agamben seeks to explain the production of that threshold through the concepts of sovereign power and bare life, concepts he draws, respectively, from Carl Schmitt and Walter Benjamin. I want to turn now to a discussion of the former so as to put us in a position to ask what implications Agamben’s appropriation of his work might have for Agamben’s own project. Carl Schmitt presents his influential theory of sovereignty in his Constitutional Theory and the first volume of his Political Theology.≤∞ For Schmitt, any legal system rests upon a decision that cannot itself take the form of law. Both the origin and the border of the law require a political the exemplary exception

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power that exceeds legal justification, and in a state of emergency this power must reemerge from the system of positive norms appropriate to the normal situation. The state of emergency, however, is for Schmitt only an instance of the logic of the exception, itself the expression of a spatial understanding of concepts and conceptual borders as such. Since what is within the legal system (norms and laws) is made possible (defined as being within the system) by a distinction between inside and outside that as such exceeds the limits of the set of norms and laws, no norm can make these distinctions. Hence a unified legal system requires a political decision to give it (the system, not the territory to which it is applied) borders as well as a set of fundamental values. The decision on the exception is simply the reemergence of this border-setting power, the ability to make the decisive distinction (itself from distinguere, to separate) that can be made only by a sovereign authority. This is the true force of Schmitt’s infamous dictum, ‘‘Sovereign is he who decides on the exception’’ (Ausnahmezustand). Recognizing this makes plain why Schmitt describes the concept of the sovereign decision as ‘‘a borderline concept’’ (Grenzbegri√ ) that as such pertains ‘‘to the outermost sphere’’ (der äußersten Sphäre).≤≤ Sovereignty operates at the outermost sphere; it is here, at the borderline, that it establishes and violates limits. If sovereignty decides upon its own limits, when it will and will not be called upon to emerge from behind the system of norms and laws that cloak it, its decision ‘‘must necessarily be unlimited’’ (unbegrenzte). The sovereign is the unlimited power that makes limits—or, in other words, the ungrounded ground of the law. Schmitt’s sovereign is a creature of the border: ‘‘although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who decides when the constitution needs to be suspended in its entirety.’’≤≥ But while it seems to range back and forth over it, this movement is in fact the oscillation of the border itself. Though it makes sense in one way to speak of the sovereign overstepping the limits it lays down, in a deeper sense it is the limit, and hence carries the limit with it in its movement as it carries itself. As Agamben notes, the exception—die Aus-nahme—is what is taken outside; it is the inclusive exclusion.≤∂ The decision and the exception it concerns are never decisively placed within or without the legal system, as they are precisely that moving border between the two. A state of emergency is the result of the collapse of the normal order; but the normal order is only the withdrawal of the state of emergency. In Agamben’s words: ‘‘The exception does not subtract itself from the rule; rather, the rule, suspending itself, gives rise to the exception and, maintaining itself 268 andrew norris

in relation to the exception, first constitutes itself as a rule. . . . The sovereign decision of the exception is 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.’’≤∑ Agamben concludes from this that ‘‘what emerges in the limit figure is the radical crisis of every possibility of clearly distinguishing between membership and inclusion, between what is outside and what is inside, between exception and rule.’’≤∏ Here the logic of borders is used to deny that borders can be confidently identified by anyone other than the sovereign, who does not identify borders so much as establish them by fiat. Having played upon a conception of the legal system as a unit defined by distinctions made between in and out, the Schmittian logic of the decision now proceeds to ‘‘deconstruct’’ and hence fulfill itself by denying that there is a real distinction (to be made by anyone other than the sovereign) between the core and the marginal. For Schmitt, once we acknowledge that the rule gives rise to exceptions for which it cannot account, we must admit that every case can, in principle, be understood in these terms. The only alternative is to argue that exceptional cases are clearly defined as such by the rule—itself a paradoxical position. Hence Schmitt concludes that ‘‘all law is ‘situational law.’ ’’≤π As Agamben puts it, Schmitt’s analysis of the sovereign shows us that ‘‘the law is outside itself,’’ and that in its formalism it has Geltung ohne Bedeutung.≤∫ Though Agamben himself has not noted this, the author of this analysis of the aporias of law also advances one of the purest expressions of the logic of exuviation discussed above: The Concept of the Political. Here the decisive point is the relation between the way of life protected by the polity and the life demanded of the soldiers who serve in that protection. For Schmitt, the concept of the political is defined by the criteria of friends and enemies, as the concept of the moral is defined by that of good and evil, and that of the aesthetic by beauty and ugliness. What makes friends friends and enemies enemies is something only the parties involved can recognize: ‘‘Only the actual participants can correctly recognize, understand, and judge the concrete situation and settle the extreme case of conflict. Each participant is in a position to judge [entscheiden] whether the adversary intends to negate his opponent’s way of life and therefore must be repulsed or fought in order to preserve one’s own form of existence.’’≤Ω In response to such threats the political unit has ‘‘the right to demand from its members the readiness to die.’’ This is one of the most important features of the Schmittian state: It is ‘‘by virtue of [its] power over the physical life of men [that] the politithe exemplary exception

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cal community transcends all other associations or societies.’’≥≠ Where for Hobbes the common life comes into being in the service of the individual’s embodied life, Schmitt follows Hegel in decisively subordinating the latter to the former. Given his non-Hegelian refusal to describe the goods advanced by the political entity, this produces the phenomenon described by Agamben in which the political ‘‘way of life’’ is defined by its negation of bare life. The citizen gives his life in resistance to ‘‘the public enemy’’ because his true life is the common Art von Leben.≥∞ For Schmitt, in the absence of such a commitment life is reduced to mere life, an essentially animal existence. It is because he finds this a form of nihilism from which we need to be redeemed that Schmitt does not pursue his own suggestion that life might in itself attain a metaphysical status. He writes in Political Romanticism: ‘‘Today di√erent and, indeed, mundane factors have taken the place of God: humanity, the nation, the individual, historical development, and even life for its own sake, in its complete spiritual emptiness and mere dynamic. This does not mean that the attitude is no longer metaphysical. . . . Metaphysics is something unavoidable.’’≥≤ But this suggestion is left undeveloped, and life’s role in metaphysics is, in line with Agamben’s analysis, that of ‘‘an inclusive exclusion’’ the exuviation of which allows for the emergence of the political.≥≥ The bare life that politics sloughs o√ is never precisely defined by Agamben. He focuses instead upon presenting examples of this ‘‘inclusive exclusion’’ such as Versuchspersonen, Karen Quinlan, people in ‘‘overcomas,’’ refugees, and so on. But his central example is the Muselmann of the Nazi death camps: ‘‘today it is not the city but rather the camp that is the fundamental biopolitical paradigm of the West.’’ This is a crucial claim for Agamben. It gives his work a great deal of pathos, and allows him to argue that the history of metaphysics is not an arcane subject worthy of dusty libraries, but in fact the most pressing and important ethical and political topic of our time. In reading his work, Agamben suggests, we are confronting the truth of ‘‘the political’’ and of the most horrific events in modern history in a way that mere political actors never could. That one of his stated ambitions is ‘‘to return thought to practical calling’’ implies that thought is now impractical, and that practice is thoughtless. Though this thoughtlessness can take many forms, they all share on Agamben’s account a common essence that is exemplified by the Nazi death camps. All of politics, including liberal regimes devoted to human rights, is implicated in and can be understood in terms of the Shoah.≥∂ If this claim is not accepted, one might turn 270

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one’s attention to, say, people on Texan death rows, and argue that their marginal status is an institutional rather than a metaphysical problem. Or one might argue that the common element in most of the examples listed above is the quite formal distinction between life and the good life that founds Socratic ethics and Aristotelian politics. Agamben in contrast wants to reveal the limitations of these modes of philosophical reflection upon practice by implicating them in one of the greatest catastrophes of the twentieth century. Without the claim for the paradigmatic nature of the camps, Agamben’s own arguments are marginalized, and politics and law become again a matter of communities, interests, conveniences, and so on. This makes it imperative for those who find Agamben’s work suggestive or compelling to ask what makes the camps and their victims the best examples of homo sacer, and whether the claim that they are raises problems for Agamben’s analysis. One form this question might take is asking why the camps of Stalin’s Soviet Union aren’t the paradigm of the political. Agamben uses the term camp in a quite broad sense that suggests a deep commonality between the camps of Germany, the Soviet Union, the former Yugoslavia, and other unspecified regimes. If this is an apparent acceptance of Arendt’s maligned notion of totalitarianism,≥∑ it is made more problematic by the fact that Agamben, unlike Arendt, does not engage in any comparative analyses that might defend the claim of a substantial commonality. Almost all of his detailed analyses are of National Socialism, with occasional reference to the former Yugoslavia, where female bodies have been the focus of a political decision to commit mass rape. It remains then an open question how his schema might apply to, say, Pol Pot’s Cambodia or Mao’s China, both of which go entirely unmentioned. Of course, even if the result is that Agamben’s analysis is not helpful in these cases, this would imply nothing about its potential explanatory power regarding National Socialism. Agamben need not follow Arendt in attempting to give a unitary account of totalitarianism—or, for that matter, of politics. However, if he is to narrow his focus he must obviously also radically adjust his analysis. This is not, however, the only way of asking whether Agamben is right to make the camps the paradigm of the political. One might also wonder whether the camp system can exemplify a phenomenon that includes constitutional, legally governed polities. Agamben himself emphasizes that ‘‘the state of exception . . . comes to be confused with juridical rule itself ’’ in the Nazi state in part ‘‘because the juridical basis for internment was not common law but the exemplary exception

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Schutzhaft,’’ a kind of state of exception.≥∏ This might suggest that what is needed is the reinstatement of legal protection rather than a critique of law— that it is the fascist imitation of law that results in the inclusive exclusion of life, and not law itself. Such suspicions are only heightened by Agamben’s reliance on the erstwhile Nazi Carl Schmitt’s account of the sovereign decision. So it might be helpful to note that one legal system of unblemished merit appears to produce much the same anomaly as the Nazis’ Schutzhaft: John Locke’s account of the God-given law of nature and reason. Here I have in mind not Locke’s defense of executive prerogative, though that too is surely relevant to this question, but instead the way the logic of his argument drives Locke to allow for a horrific form of slavery even as he asserts that we are by nature free and can never consent to our own enslavement. Locke begins the second of the Two Treatises of Government by identifying political power with ‘‘a Right of making Laws with Penalties of Death, and consequently all lesser penalties’’ for the preservation of property and the commonwealth ‘‘for the Publick Good.’’≥π Locke grants this political power to all men in the state of nature, and argues that those who would violate these rights put themselves into a state of war with those they would subject. In judging when another has put himself in such a state of war with me, I should, according to Locke, look first to the defense of my liberty. Indeed, it is ‘‘Lawful for a Man to kill a Thief, who has not in the least hurt him, nor declared any design upon his Life, any further then by the use of Force, so to get him in his Power.’’ ‘‘He that in the State of Nature, would take away the Freedom, that belong to any one in that State, must necessarily be supposed to have a design to take away every thing else, that Freedom being the Foundation of all the Rest.’’≥∫ This might be only a speculation on Locke’s part as to what is likely to happen. But in fact it is closer to an identification of life with freedom. ‘‘This Freedom from Absolute, Arbitrary Power, is so necessary to, and closely joyned with a Man’s Preservation, that he cannot part with it, but by what forfeits his Preservation and Life together.’’≥Ω This robust, normative identification of life with individual freedom is part and parcel of Locke’s defense of our ability to recognize when a political ruler has put himself into a state of rebellion, and to depose him. And it sounds reassuringly far away from the bare life of the Muselmänner. But the hinge of freedom as life serves to open up a less familiar scene in Locke’s political universe. Because life is essentially freedom, ‘‘a Man, not having the Power of his own life [which belongs to God], cannot, by Compact or his own Consent, enslave himself to any one.’’∂≠ And yet, on precisely the same grounds, slavery 272

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is nonetheless possible. How can this be? Locke’s reasoning is as follows: if someone tries to take away my freedom, he has as good as tried to kill me. Being guilty of (attempted) murder, he forfeits his life; that is, he enters a zone in which he has no power over his own life and is in fact already dead. As the living dead, he loses the rights and powers of the living, and may be treated as a slave: ‘‘Indeed, having, by his fault, forfeited his own Life, by some Act that deserves Death; he, to whom he has forfeited it, may (when he has him in his Power) delay to take it, and make use of him to his Service, and he does him no injury by it. For, whenever he finds the hardship of his Slavery to out-weigh the value of his Life, ’tis in his Power, by resisting the Will of his Master, to draw on himself the Death he Desires.’’ Locke can speak of the slave as ‘‘drawing on himself the Death he Desires’’ without contradicting his claim that man does not have the right to take his own life only because he is assuming that the slave is already dead. Like the Versuchspersonen of the camps, Locke’s slave lacks ‘‘almost all the rights and expectations that we characteristically attribute to human existence, and yet [is] still biologically alive’’; it thus comes ‘‘to be situated at a limit zone between life and death, inside and outside, in which [it is] no longer anything but bare life [nuda vita].’’∂∞ Even a writer as profoundly out of temper with Agamben as Locke, and one who seeks to identify human life with a substantive vision of law-governed free activity, can become entangled in what I have termed the logic of exuviation. Indeed, it is because Locke is loath to identify human beings with their bare life in an Hobbesian manner that he in the end reduces a class of people to that life.∂≤ If there is a moral here, it may be that simply asserting that we are not bare life and eschewing sovereign power as much as possible in favor of the rule of law will not allow us to avoid the dilemmas to which Agamben draws our attention. But there remains a more di≈cult problem, one that cannot be addressed by finding parallels between Agamben’s claims and those of others in the tradition because it is internal to Agamben’s own analysis. As we have seen, Agamben’s work concludes with the claim that ‘‘today it is not the city but rather the camp that is the fundamental biopolitical paradigm of the West.’’ But on Agamben’s own terms what does this mean? Here his reliance upon Schmitt’s decisionism is crucial. Early on in Homo Sacer Agamben makes explicit his commitment to what I have described as the spatial and etymological understanding of logical categories when he writes, ‘‘The example is truly a paradigm in the etymological sense: it is what is ‘shown beside,’ and a class can contain everything except its own paradigm.’’ ‘‘What the exemplary exception

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the example shows is its belonging to a class, but for this very reason the example steps out of its class in the very moment in which it exhibits and delimits it. . . . If one now asks how the rule applies to the example, the answer is not easy, since the rule applies to the example only as a normal case and obviously not as an example.’’∂≥ This is a very particular account of what it means to be exemplary. We can easily contrast it, for instance, with the Critique of Judgment’s enormously influential discussion of the exemplary status of genius and taste. Kant’s genius ‘‘lays down the rule’’ for future acts of genius by establishing a model that can be followed only by those who refrain from slavish imitation. But the rule is only demonstrated by the genius, not articulated into definite criteria. Hence Kant’s reference to this rule is ‘‘indeterminate’’ if not metaphoric: genius ‘‘displays itself, not so much in the working out of a projected end in the presentation of a definite concept, as rather in the portrayal, or expression, of aesthetic ideas.’’∂∂ Similarly, the necessity of the pleasure we take in the beautiful is exemplary in that it is ‘‘a necessity of the assent of all to a judgment regarded as exemplifying a universal rule incapable of formulation.’’ The condition of this necessity is, Kant argues, the idea of a common sense. We are ‘‘suitors for agreement from everyone else, because we are fortified with a ground common to all,’’ a sensus communis aestheticus.∂∑ The flip side of this is that neither genius nor taste are features of determinate concepts or rule-governed acts and institutions. Neither the moral agent nor the person successfully making cognitive claims needs to be a genius or to take her guidance from exemplars as opposed to precepts. In stark contrast, Agamben makes it plain that the exceptional status of the example (as something taken outside the class in order to demonstrate that class) is a necessary feature of classes as such, be they classes of the product of artistic genius or classes of rules. ‘‘In every logical system, just as in every social system, the relation between outside and inside, strangeness and intimacy, is this complicated.’’ In every case ‘‘belonging to a class can be shown only by an example.’’∂∏ Examples precede classes just as, for Schmitt, decisions precede norms. I have referred to Schmitt’s logic of the decision as a spatial one because it conceives of concepts in terms of groups in space with borders that need to be defined and patrolled. This is significant because if concepts are seen, following Gottlob Frege, as functions, it is much less obvious that they can be understood in these terms. It is not obvious, that is, that functions have borders that are revealed by being crossed. This may help explain our sense that Agamben’s is a fairly problematic account of, say, set theory. But Agam274

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ben’s position not only relies upon a metaphor of boundaries that is at the very least debatable; in so doing it undermines itself. The clear implication of Agamben’s own explanation of what makes something exemplary or paradigmatic is that in claiming a paradigmatic status for the camps he is and can only be making an unregulated decision that cannot be justified to his readers in a nonauthoritarian manner. Since the example precedes and defines the rule, Agamben cannot appeal to an independent rule or standard to justify his claim that the camps are exemplary of anything. The determination that the camp is representative of the rule is one that is made and not in any substantive sense recognized.∂π The paradigm or example mirrors the structure of the exception: as the one is an inclusive exclusion, so is the other ‘‘an exclusive inclusion.’’ Indeed, Agamben explicitly draws the inference that ‘‘exception and example are correlative concepts that are ultimately indistinguishable.’’∂∫ This directly implies that the claim that something is exemplary is as much a product of a Schmitt-style decision as is the claim that something is an exception. In each case the decision is primary, and the rule derived from it. For this reason in each case the decision, in Schmitt’s words, ‘‘becomes instantly independent of argumentative substantiation and receives an autonomous value.’’∂Ω Here the contrast with the example of Kant is strong indeed. In Kant’s judgments of taste, there is a ‘‘wooing’’ of the assent of others who share your common sense of the matter. In Agamben, there is a decision that is imposed upon others. This di√erence is not noted by Steven DeCaroli in his otherwise interesting ‘‘Visibility and History: Giorgio Agamben and the Exemplary.’’ Though DeCaroli refers in passing to Agamben’s discussion of refugees, the sacred, and the camps, there is no specific reference to either of the Homo Sacer texts, and there is no consideration of Agamben’s application of the logic of the inclusive exclusion to these political horrors. Instead the emphasis is on eighteenth-century aesthetics and Renaissance humanism; ironically, it is for this very reason that DeCaroli does not see how di√erent Agamben’s analysis is from Kant’s, to which he compares it. ‘‘Unlike moral rules or normative principles,’’ DeCaroli writes, ‘‘what the example promises cannot be adequately legislated and, therefore, one’s response to the exemplary cannot be a simple matter of rational obedience—a mere adherence to reasonable principles.’’∑≠ Nothing this mild could be said of the decision for the camps, which is far indeed from anything like Kant’s common sense.∑∞ It should be noted that DeCaroli follows Agamben’s own earlier discussions of the topic. The third chapter of Agamben’s 1990 The Coming Community, ‘‘The the exemplary exception

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Example,’’ argues in Hegelian fashion that language involves ‘‘an antimony of the individual and the universal,’’ in that language tries to capture particular things with its general terms, and in the attempt always loses their particularity. All linguistic reference involves the presentation of a particular as representative of a class and of other particulars, neither of which are this given particular. The example ‘‘escapes’’ this antimony in that it is ‘‘neither particular [particolare] nor universal [universale]’’ but a singular object that shows its singularity [singolarita]. Hence the pregnancy of the Greek term, for example: para-deigma, that which is shown alongside. . . . Hence the proper place of the example is always beside itself, the space in which its undeniable and unforgettable life unfolds. This life is pure linguistic life. Only life in the word is indefinable and unforgettable. Exemplary being is purely linguistic being. Exemplary is what is not defined by any property, except by being-called. Not beingred, but being-called-red; not being-Jakob, but being-called-Jakob defines the example.∑≤ The exception and the decision both go unmentioned in this text, and the suggestion is left open that something like Kant’s sensus communis allows us to recognize what ‘‘shows itself ’’ as being exemplary. Indeed, the use of the language of universals, particulars, and singularities from Hegel’s logic suggests that the example is a concrete universal that displays itself as such to the highest form of reason, and not merely the sovereign decision.∑≥ In part this reflects the fact that The Coming Community focuses upon the possibilities opened up by nonidentical, liminal being, rather than upon the idea that the camps are where the best examples of such being is found.∑∂ It is only in Homo Sacer that Agamben relates this analysis of the example to the inclusive exclusion of the Muselmann, and in so doing attempts to ground an analysis of the political upon the nature of the camps. Because the nature of language alone can hardly explain the historical emergence of the camps (life in which is considerably di√erent from ‘‘life in the word’’), Agamben appeals to a Schmittian decision. But since he remains committed to an etymological analysis of example (l’esempio) and exception (l’eccezione) in which there is an isomorphism between the exclusive inclusion and the inclusive exclusion, he is forced into the awkward position of deciding in an authoritarian fashion that politics is a matter of the decision on life as enacted in the camps. It is one thing to suggest, as philosophers like Heidegger working in the 276

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phenomenological tradition are bound to do, that one is giving descriptions rather than arguments. It is quite another to say that the aptness or accuracy of a description is something that is appropriately determined only by a sovereign decision. To say the latter is to say that we are not returning to the ‘‘things themselves,’’ but rather constituting them. It follows from this that if Agamben is correct about the logic of politics—a claim that I have already suggested may be too broad to be sustained—he cannot be right that this logic necessarily applies to or is enacted in philosophy as well. Because if he were, his philosophical claims about the political would be the expression not of the truth of the political, but of his own sovereign decision. This makes it impossible for Agamben to o√er a genuine alternative to the bloody ‘‘nomos of the earth’’ producing the potential ‘‘biopolitical catastrophe’’ that he describes in such harrowing terms.∑∑ As a repetition of what it sets out to condemn, Agamben’s work falls into the trap that the closing sentences of Political Theology claim awaits all attempts to deny the arche of the decision: Every claim of a decision must be evil for the anarchist, because the right emerges by itself if the immanence of life is not disturbed by such claims. This radical antithesis forces him of course to decide against the decision [sich selbst entschieden gegen die Dezision zu entscheiden]; and this results in the odd paradox whereby Bakunin, the greatest anarchist of the nineteenth century, had to become in theory the theologian of the antitheological and in practice the dictator of an antidictatorship.∑∏ For Agamben to escape this unwelcome paradox he would have to relax the identification he asserts between philosophy and politics. He would, in other words, have to justify a mode of evaluation that escaped the limitations he attributes to logic.∑π Now, it is clear that the central features of Agamben’s Homo Sacer project are incompatible with the familiar distinction between philosophy as an arena of impartial rational argumentation and politics as one of potentially deceptive rhetoric driven by the interests of the various factions competing for power. His focus upon the first book of Aristotle’s Politics makes this plain enough: Aristotle argues there that the polis is the place where citizens can realize their telos as language users by deliberating and deciding together what counts for them as just. Politics, that is, does the work of Socratic philosophy. And, as noted above, Agamben’s characterization of the transcendence of ‘‘mere life’’ by the ‘‘good life’’ of the polis is that politics ‘‘appears as the truly fundamental structure of Western metaphysics insofar the exemplary exception

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as it occupies the threshold on which the relation between the living being and the logos is realized.’’ The polis is the site of the enactment of metaphysics. Consequently Agamben cannot appeal to an Aristotelian philosophical discourse wherein he might justify his claim for the paradigmatic status of the camps in a nonpolitical (viz., nondecisionistic) way. But it remains open whether such discourse exhausts the resources of the philosophical. Agamben himself suggests a distinction within philosophy between the metaphysical and the nonmetaphysical: ‘‘the ‘politicization’ of bare life [is] the metaphysical task par excellence’’ (emphasis added). Given his close association with Heidegger and Jean-Luc Nancy, we might take the use of the word metaphysical here to suggest that true, nonmetaphysical philosophy will be a variant of Heideggerian Gelassenheit. But while something like this is found in The Coming Community, this is not an accurate characterization of Homo Sacer. Moreover, what the above analysis suggests is not the need for a more poetic or poietic mode of thinking, but one that can escape the decisionist implications of Agamben’s understanding of the logic of the political and still make judgments concerning what politics is and should be. This is something that the later Heidegger shies away from, and it is the return to the question of practice outside of philosophical reflection that makes Agamben’s work appear as a revitalization of the Heideggerian tradition. Unfortunately, Agamben’s acceptance of Schmitt’s decisionism makes it impossible for his analyses to claim any general validity. Perhaps worse, it puts him in the position of deciding upon the camp victims one more time, thereby repeating the gesture of the ss in precisely the way he says we must avoid.∑∫ I conclude that if the parallels and correspondences to which Agamben’s work draws our attention are to be more than suggestive—in particular, if they are to be the object of judgments that can carry any sort of authority—Agamben’s own methodological commitments will have to be either radically modified or abandoned outright. This is a decidedly unwelcome conclusion for this style of political philosophy, for it implies that the very strength of its insights demands a mode of argumentation of which it is itself not yet capable. notes I am grateful to Andrew Benjamin, Tom Dumm, Yasemin Ok, Simona Sawhney, Eric Wilson, and the editors and anonymous readers at Radical Philosophy for their helpful comments on earlier versions of this essay. 1 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Stanford: Stanford University Press, 1998), 181. Italian references to the 278

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work come from Homo Sacer: Il potere sovrano e la nuda vita (Turin: Giulio Einaudi, 1995). 2 Agamben, Homo Sacer, 88. 3 Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1966), 444. 4 Foucault, ‘‘Rituals of Exclusion’’ (an interview with John Simon), in Foucault Live (New York: Semiotext[e], 1989), 71. 5 Agamben, Homo Sacer, 8. 6 I have attempted this in the introduction to this volume. 7 Agamben, Homo Sacer, 5. 8 On this point see in particular the sixth chapter of Jacques Derrida, Of Spirit: Heidegger and the Question, trans. G. Bennington and R. Bowlby (Chicago: University of Chicago Press, 1989). 9 Agamben does say that for Heidegger ‘‘man is not a living being who must abolish or transcend himself in order to become human.’’ But he immediately goes on to say that Heidegger’s work represents ‘‘a radicalization without precedent of the state of exception,’’ implying that Heidegger has not after all broken free of this demand for transcendence (Agamben, Homo Sacer, 153). 10 Martin Heidegger, ‘‘Letter on Humanism,’’ Martin Heidegger: Basic Writings, rev. ed. (San Francisco: Harper, 1993), 217, 230; Über den Humanismus (Frankfurt: Vittorio Klostermann, 1991), 5, 17–18. 11 Compare the discussion of man’s essential violence in the earlier Introduction to Metaphysics, trans. R. Manheim (London: Yale University Press, 1959), esp. 146√. 12 Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 9. 13 Human Condition, 18–19, emphasis added. Recalling that this ‘‘life-story,’’ as the term implies, emerges in language, compare Heidegger in On the Way to Language: ‘‘Mortals are they who can experience death as death. Animals cannot do so. But animals cannot speak either. The essential relation between death and language flashes before us, but remains unthought’’ (trans. P. Hertz [New York: Harper, 1971], 107). These lines are cited by Agamben in the opening pages of the first volume of Homo Sacer. 14 Arendt, Human Condition, 19; Arendt, Vita Activa, oder Vom tätigen Leben (Munich: Piper, 1960), 24. Arendt’s German continues, ‘‘nur die ‘Besten’ . . . sind mehr als bloße Lebewesen,’’ repeating the phrase that points back to Heidegger and is a probable influence upon Agamben. The more obvious source of the phrase ‘‘mere life’’ is of course Benjamin’s ‘‘Critique of Violence’’; and Arendt herself may have also been influenced here by her friend Benjamin’s 1936 essay ‘‘The Storyteller,’’ the exemplary exception

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which discusses the decline of both the thought of death and ‘‘communicability [Mitteilbarkeit],’’ Arendt’s privileged term for the analysis of political judgment—a capacity she famously describes as also being in decline. See Benjamin, ‘‘The Storyteller,’’ in Illuminations, ed. Hannah Arendt (New York: Schocken, 1969), sections 4 and 10. 15 Origins of Totalitarianism, 451. The best discussion I have seen of this aspect of Arendt is the exchange between George Kateb and Fred Dallmayr, ‘‘Death and Politics’’ and ‘‘Public or Private Freedom?’’ Social Research 54, no. 3 (autumn 1987). 16 Agamben, Homo Sacer, 7. 17 Agamben, Homo Sacer, 82. 18 Agamben, Homo Sacer, 114. 19 Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive, trans. Daniel Heller-Roazen (New York: Zone Books, 1999), 28–31. 20 Agamben, Remnants of Auschwitz, 55. 21 My discussion of Schmitt’s decisionism follows that of my article ‘‘Carl Schmitt’s Political Metaphysics: On the Secularization of the Outermost Sphere,’’ Theory and Event 4, no. 1 (summer 2000). 22 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge: mit Press, 1985), 5; German references are from Politische Theologie, 7th ed. (Berlin: Duncker and Humblot, 1996). 23 Schmitt, Political Theology, 7. 24 Agamben, Homo Sacer, 18. One could speak of the di√erence that makes a di√erence, playing upon the root of di√er in di√erre, to carry apart. The way in which Arendt’s natality remains within this compass is brought out if one reflects upon the root bher as carrying, bearing children. 25 Agamben, Homo Sacer, 18, 19. 26 Agamben, Homo Sacer, 25. 27 Schmitt, Political Theology, 13. This conclusion clearly does not necessarily follow. I do not wish to gloss over the fact that Schmitt is playing upon etymology and a particular spatial conception of sets and concepts in order to himself make distinctions his arguments do not completely justify. That said, Kant’s analysis in ‘‘Theory and Practice’’ would seem to suggest that, if we are not going to end up in an infinite regress, laws and rules are going to have to give out sooner or later, and find their origin in something other than yet another law or rule. Whether the nonlegal origin of the law that is thus revealed will, as Schmitt implies, turn out to be the conceptual foundation of the law is yet another question. 28 Agamben, ‘‘The Messiah and the Sovereign: The Problem of Law in Walter Ben-

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jamin,’’ in Potentialities, trans. and ed. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998), 161, 170. 29 Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: University of Chicago Press, 1996), 26, 27; German references are from Der Begri√ des Politischen (Munich: Duncker and Humblot, 1932). 30 Schmitt, Concept of the Political, 46, 47. 31 Schmitt, Concept of the Political, 28; this is not the dominant interpretation of Schmitt. I defend it in ‘‘Carl Schmitt on Friends, Enemies, and the Political,’’ Telos 112 (summer 1998). 32 Carl Schmitt, Political Romanticism, trans. Guy Oakes (Cambridge: mit Press, 1986), preface, 17–18. 33 To some extent this lack is made good by the suggestions of Walter Benjamin, of whose collected works in Italian Agamben is the editor. If it is Schmitt who furnishes Agamben with the basic structure of his analysis of sovereignty, it is Schmitt seen through the prism of Benjamin, whose often cited but incredibly opaque and inconclusive 1921 ‘‘On the Critique of Violence’’ introduces the concept of mere life that Agamben’s work develops. Unfortunately, it is almost impossible to say what Benjamin means by this phrase. 34 This is argued most directly in the third part of Homo Sacer, ‘‘The Camp as Biopolitical Paradigm of the Modern.’’ 35 For a witty version of the many attacks on this idea, see Slavoj Zˇ iˇzek, Did Somebody Say Totalitarianism? (London: Verso, 2001). 36 Agamben, Homo Sacer, 168, 167. 37 Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University, 1963), 268. 38 Locke, Two Treatises, 279. 39 Locke, Two Treatises, 284. 40 Locke, Two Treatises, 284. 41 Agamben, Homo Sacer, 159. 42 The irony of this is compounded when one observes the similarities between Locke’s slave and the subject of Hobbes’s ‘‘despotical dominion.’’ 43 Agamben, Homo Sacer, 22. 44 Kant, Critique of Judgment, trans. J. C. Meredith (Oxford: Clarendon, 1989), 180. 45 Kant, Critique of Judgment, 81–83. 46 Agamben, Homo Sacer, 22. 47 The Schmittian sovereign is he who decides on the exception; this decision must be made by a single person because there is no common sense among members

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of the community as to when the constitution needs to be suspended in its entirety. Hence Schmitt does not write, ‘‘We are sovereign when we agree to decide upon the exception.’’ 48 Agamben, Homo Sacer, 22, 21. 49 Schmitt, Political Theology, 31. Alain Badiou’s polemic against the general use of the Shoah as the unique and privileged example of radical evil suggests another reason for this unfortunate result in Agamben’s case. On Badiou’s account, the assertion of the exemplary status of the Shoah asserts both that it is the standard by which evil is to be judged in our time and that, as the paradigm, it is beyond such comparison with other, less radical forms of evil. ‘‘As a result, the extermination and the Nazis are both declared unthinkable, unsayable . . . yet they are constantly evoked. . . . The measure must itself be unmeasurable, yet it must constantly be measured’’ (Badiou, Ethics: An Essay on the Understanding of Evil, trans. P. Hallward [London: Verso, 2001], 62–63). 50 DeCaroli, ‘‘Visibility and History: Giorgio Agamben and the Exemplary,’’ Philosophy Today 45, no. 5 (2001): 11. 51 Although Agamben draws heavily upon Arendt, he shows no interest in her attempt to appropriate Kant’s model of reflective aesthetic judgment for politics. I discuss the strengths and weaknesses of this attempt in ‘‘Arendt, Kant, and the Politics of Common Sense,’’ Polity 29, no. 2 (winter 1996): 165–92. 52 Giorgio Agamben, The Coming Community, trans. Michael Hardt (Minneapolis: University of Minnesota Press, 1993), 10. Italian references to the work come from La communita che viene (Turin: Giulio Einaudi, 1990). I describe this discussion as Hegelian not only because Agamben’s tripartite distinction between universal, particular, and individual echoes that of Hegel’s logic, but also because of the obvious debt of his account of the antimony of language to the ‘‘SenseCertainty’’ chapter of the Phenomenology. ˇ zek has argued that contrasts of the sort I propose here between Schmitt 53 Slavoj Ziˇ ˇ zek, and Hegel are illusory, and that Schmitt is one of ‘‘the true heirs of Hegel’’ (Ziˇ The Ticklish Subject [New York: Verso, 1999], 113). The concrete universal on Zˇ iˇzek’s account is not a bridge crossing the gap between universal and particular opened up by the formalism of the Understanding, but a paradoxical, ungrounded, and unjustified decision that some given particular embodies the universal. While there is much to be said in favor of this reading, there is also prima facie evidence against it: Whatever else it may be, the Philosophy of Right is not Political Theology. ˇ zek’s reading of Hegel, see Peter Dews, ‘‘The Tremor of For a good critique of Ziˇ Reflection: Slavoj Zˇ iˇzek’s Lacanian Dialectics,’’ in The Limits of Disenchantment (London: Verso, 1995). On the commonalties between the Kantian and Hegelian 282

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approaches to this issue, see Robert Pippin, ‘‘Avoiding German Idealism: Kant, Hegel, and the Reflective Judgment Problem,’’ in Idealism as Modernism (Cambridge: Cambridge University Press, 1997). 54 ‘‘These pure singularities [of what in the example escapes linguistic classification] communicate only in the empty space of the example, without being tied by any common property, by any identity. . . . [T]hey are the exemplars of the coming community’’ (Agamben, The Coming Community, 10–11). 55 Agamben, Homo Sacer, 38, 188. Agamben’s essay in this volume, ‘‘The State of Exception,’’ and the fourth chapter of the latest addition to the Homo Sacer project, State of Exception, Homo Sacer II: 1, both suggest that it is not Schmitt that he follows, but Benjamin, where the di√erence between the two concerns precisely the ability to decide upon the state of exception. But if that state of exception is one that cannot be decided upon, in what sense can we identify a paradigm of it? Given Agamben’s argument about the relation between examples and exceptions, it would seem that it could not be identified at all. 56 Schmitt, Political Theology, 66. 57 The suspicion that Agamben’s central claim is one made by fiat is heightened by further lacunae in his analysis of what one might term the relation between the logic of the political and the actual (or ontic) history of politics. Agamben argues that ‘‘the link between bare life and politics . . . secretly governs the modern ideologies seemingly most distant from one another’’ (Homo Sacer, 4). Why then do they ‘‘seem’’ to be so di√erent from one another? And why is this link clearer in some modern sites—the camps—than in others, such as contemporary Britain? If contemporary Britain is essentially the same thing as a camp, why is it not a camp? More fundamentally, why is the polis not itself a camp? On Agamben’s analysis both revolve around the unstable distinctions between life and bare life and between rule and exception. But if these distinctions are unstable in the polis, they are undone in the camp. The camp makes explicit what is implicit in the polis, and in Aristotle’s reflections upon it. But what accounts for the distinction here between the implicit and the explicit, and for the significance and identity of the modern (cf. Homo Sacer, 6, 9, 12)? It would appear at the very least that another factor or set of factors must be at play here, such as di√erent forms of technology and social organization, and that Agamben’s analysis will remain incomplete until such factors are integrated into his reflections. This will require developing a set of arguments that decisively distinguish the type of decision Agamben is asking his readers to make from that he is analyzing and criticizing. 58 Agamben, Remnants of Auschwitz, 63–64.

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giorgio agamben Translated by Giorgio Agamben and Kevin Attell

the state of exception

The essential connection between the state of exception and sovereignty was established by Carl Schmitt in his 1922 book Political Theology. Though his famous definition of the sovereign as ‘‘he who decides on the state of exception’’ has been widely debated and echoed, there is still to this day no such thing as a theory of the state of exception in public law. Jurists and political scientists tend to treat it more as a quaestio facti than as a genuine juridical problem. I will try in this essay to investigate the reasons for this omission, but in order to do that, I will first have to relate this deficiency to another lacuna in the political and juridical sciences: namely, the lack of a theory of civil war. Jurists and political scientists alike admit that there is currently no theory of civil war—though this lacuna does not seem to disturb them much. In noting this lacuna in 1980, Roman Schnur, a German scholar influenced by Carl Schmitt, observed that the general disregard for civil war kept step with the progression of what has been termed ‘‘global civil war.’’ Today, more than twenty years later, the observation has certainly lost none of its currency: while the very distinction between external and internal wars has become impossible, scholars carefully avoid any hint of a theory of civil war. Though in recent years a number of publications have been devoted to socalled internal wars, their analyses have focused not on an interpretation of the conflict as such, but rather on the conditions that made possible its internationalization. The paradigm of consensus, which dominates both political praxis and political theory, seems incompatible with any serious inquiry into the phenomenon of civil war, which is at least as old as Western democracy. Why this lacuna? There is a polemology, a theory of war; there is even an irenology, a theory of peace (or of pacification); but there is no such thing as a stasiology, a theory of stasis or civil war. As a matter of fact, a possible reason for the absence of a stasiology in political science is precisely the proximity between civil war and the state of exception. Since civil war is by definition the opposite of the normal situa284

tion, it moves in a zone of undecidability with respect to the state of exception, which is the usual response of state power to extreme internal conflicts. Thus, in the twentieth century, we witness a very curious phenomenon that has been paradoxically defined as ‘‘legal civil war.’’ Let us take the case of the Nazi state. Immediately after taking power in 1933, Hitler issued on February 28 the Decree for the Protection of the People and the State, which suspended the articles of the Weimar Constitution concerning personal liberties. The decree was never repealed, so that from a juridical point of view the whole of the Nazi regime can be considered a state of emergency that lasted for twelve years. Modern totalitarianism could thus be defined as the establishment by means of a state of emergency of a legal civil war that results in the physical elimination not only of political adversaries but also of whole categories of citizens who for some reason cannot be integrated into the political system. Since then, the willing creation of a state of perpetual emergency seems to have become one of the essential tasks of contemporary states, including so-called democratic ones. The distinction between ‘‘real’’ and ‘‘fictitious’’ state of emergency (état de siège e√ectif and état de siège fictif ) was already established by Theodor Reinach in his 1885 book De l’état de siège; English scholars prefer to speak of a ‘‘fancied state of emergency,’’ while Nazi jurists spoke openly of a gewollte Ausnahmezustand, a willed state of exception. In any case, the indeterminacy of security and terror coincides here with the indeterminacy of civil war and the state of exception. The inner link between the state of exception and civil war comes fully to light in an institution of Roman law that can be considered as the true archetype or paradigm of the modern Ausnahmezustand: the iustitium. After what I have said about the absence of a theory of the emergency in public law, you will not be surprised to hear that this very interesting institution has been generally neglected by historians of Roman law. Let me then just give you a presentation of its essential points. If the Roman senatus was informed of a situation that seemed to threaten or endanger the res publica, it would pronounce a senatus consultum ultimum (final decree of the Senate) asking the consuls (or their substitutes and other magistrates in Rome, and even every citizen) to take any measures possible in order to ensure the salus publica, the security of the state (videant consules ne quid respublica detrimenti capiat [may the consuls see to it that no harm come to the state]). This senatus consultum involved a decretum, a decree that declared a tumultus (that is to say, a state of emergency arising from inner disorder or an insurrection) and had as a the state of exception

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consequence the proclamation of a iustitium (iustitium edicere or indicere [to proclaim or declare a iustitium]). The term iustitium—which is constructed exactly like sol-stitium—means literally ‘‘to bring to a stop, to suspend the ius, the juridical order’’; as the Roman grammarians explained, it is ‘‘when the law stands still, just as [the sun does in] the solstitium,’’ or, as we can read in Aulus Gellius, iuris quasi interstitio et quaedam cessatio, ‘‘as if it were an interval and a sort of cessation of the ius.’’ Therefore, the iustitium was not simply a suspension in the administration of justice, but an abeyance of the law as such. And if we want to grasp the nature and structure of the state of exception, I think that we first have to understand the paradoxical status of this juridical institution that consists solely in the production of a juridical vacuum, of a space entirely devoid of ius. In 1877 Adolph Nissen, professor at the University of Strasbourg, published his monograph Das Iustitium, which is still the best study on the subject. Nissen is the first to see clearly that the customary understanding of the term as a ‘‘court holiday’’ (Gerichtsferien) is nonsense and that the original significance of the iustitium must also be distinguished from its later meaning as ‘‘public mourning’’ ( funus publicum), which it acquires beginning with the principate. Let us take the case of the iustitium mentioned in Cicero’s Philippics 5.12. Antonius’s army is marching toward Rome and the consul Cicero addresses the senatus with these words: tumultum censeo decerni, iustitium edici, saga sumi dico oportere, which can be roughly translated, ‘‘I say that it is necessary to declare a tumultus [a state of public danger], proclaim a iustitium, and prepare to fight.’’ Nissen shows how translating iustitium here as ‘‘court holiday’’ simply makes no sense; rather, confronted with an extreme danger (Notfall), the consul is asking to remove the restrictions that the laws impose on the action of the magistrates (essentially the prohibition against killing a citizen without a popular judgment). I quote: ‘‘When the law was no longer able to perform its highest task, that is, to ensure the public welfare, . . . the law was set aside.’’∞ Just as the magistrates were, if necessary, released from the restrictions of the law by means of a senatus consultum, so too was the ius, in the most extreme situations, wholly suspended by the iustitium. According to Nissen, the iustitium serves the same function as the one Machiavelli evoked in his Discorsi when he spoke of the necessity of ‘‘breaking’’ the order for the purpose of saving it. 286 giorgio agamben

Thus Nissen is able to interpret the senatus consultum ultimum, the declaration of tumultus, and the iustitium as forming a single system. The senatus consultum presupposes the tumultus and the tumultus is the sole cause of a iustitium. They do not belong to penal law, but to constitutional and public law, where they mark ‘‘the caesura by means of which, from the point of view of public law, exceptional measures may be taken.’’≤ The essential link between iustitium and state of exception could not be better stated. Let me quickly summarize, in two theses, the conclusions of Nissen’s book. 1 There is a close functional relation between tumultus (that is to say, civil war) and iustitium (that is to say, the state of exception). Civil war and state of exception seem originally to form a kind of system, in which each term requires the other. 2 The iustitium is a space absolutely devoid of law; it is, as we saw, the production of a juridical vacuum. But then the problem is how to conceive of such a space of anomie, which seems indeed to be neither inside the law nor simply external to it. Both ancient authors and modern scholars seem to oscillate between the idea of a total anomie, in which all juridical powers or features are abolished, and the opposite conception of a legal plenitude, in which the law seems to coincide with the whole of reality. Thus Livy writes that during the iustitium the consules, the supreme public magistrates, are in privato abditi, reduced to the state of private citizens. From the opposite perspective, we have the case of a private citizen, Scipio Nasica, who, after the senatus consultum ultimum of 133 b.c., acts as if he were endowed with the imperium of a magistrate and kills Tiberius Gracchus. Theodor Mommsen likewise considers the situation produced by the senatus consultum ultimum to be a kind of Notstand, a state of necessity that is, as such, ‘‘outside the law’’ (ausserhalb des Rechts); but, on the other hand, he seems to conceive of it as the release of a floating imperium that could be taken on by everyone. During the iustitium no act is lawful; but, reciprocally, neither is any ‘‘transgression’’ possible. This gives birth to the very interesting problem of the nature of acts committed during the iustitium. Since they occur in a juridical vacuum, they should be considered as mere facts, with no juridical connotation whatsoever. The question is particularly relevant, because we face here a sphere of action in which the issue is primarily whether or not one can kill. Thus the state of exception

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scholars argue whether a magistrate who had killed a citizen during a iustitium could be subject to a trial for murder once the iustitium was over. We are faced here with a kind of action that seems to exceed the usual juridical classification of acts into legislative, executive, or transgressive. The magistrate who acts during the iustitium—like the o≈cer in the state of exception— is neither executing nor transgressing the law; nor, of course, is he creating a new law. We could say—in a paradoxical expression—that he is ‘‘inexecuting’’ the law. But what does it mean to inexecute a law? How can we conceive of this peculiar class of human actions? Are they truly human, or are they instead bestial, or divine? Or should we rather consider them as the very paradigm of political action? In any case, the paradox of the state of exception is that, exactly like the sovereign who decides on it, it is both outside and inside the juridical order. It marks a threshold, where legal void and legal fullness, a-nomie and pannomie, become indistinguishable. I think that it is precisely from this perspective that we must now read the debate between Walter Benjamin and Carl Schmitt on the state of exception, which took place from 1928 to 1940. The exoteric dossier (as Jacob Taubes, Horst Bredekamp, and others have noted) is thin: Benjamin’s quotations of Schmitt’s Political Theology in The Origin of German Tragic Drama (the Trauerspielbuch), Benjamin’s letter to Schmitt of December 1930, Schmitt’s letter to Hansjörg Viesel of November 5, 1973 (in which he declares that his essay on Hobbes’s Leviathan was written as a response to Benjamin). But the esoteric dossier is larger and has yet to be explored in all its implications. What is at stake in this debate is not simply the definition and the meaning of sovereignty but rather the logic—or better, the topology—of the state of exception. I believe that the whole debate acquires its proper meaning only if it is viewed as a discussion over the locus of the state of exception, that is to say, its topological relation to the juridico-political order. The starting point of the Benjamin-Schmitt file is commonly considered to be Benjamin’s reading of Political Theology in 1923 and the subsequent quotations of Schmitt’s theory of sovereignty in The Origin of German Tragic Drama. But I would now like to suggest that the first document that should be included in the dossier is Benjamin’s essay of 1920–21, ‘‘Critique of Violence’’ (‘‘Zur Kritik der Gewalt’’). This text belongs in the file not only because it is the only explicit exposition of Benjamin’s political philosophy that has survived, but also because, as I will try to prove, it was most probably known to Carl Schmitt. The essay was published in 1921 in issue 47 of the 288 giorgio agamben

Archiv für Sozialwissenschaften und Sozialpolitik, a journal that was co-directed by Emil Lederer, a professor at the University of Heidelberg (and later professor here in New York at the New School) whom Benjamin frequently saw in that period. Now, not only was Schmitt’s book The Concept of the Political (Der Begri√ des Politischen) first published in 1927 in issue 58 of this same journal (which in 1924 and 1926 had also published other essays by Schmitt, who was a regular contributor), but a careful examination of the footnotes in Schmitt’s books shows that from 1920 on he was a regular reader of the Archiv (he quotes, just to give you some evidence, the issues immediately following and preceding the one in which Benjamin’s essay was published). Moreover, he was personally acquainted with Lederer, and as soon as he had read Leo Strauss’s review of Der Begri√ des Politischen, he planned to have it published in the Archiv. As a regular reader of and contributor to the Archiv, Schmitt could hardly have missed a text like Benjamin’s ‘‘Zur Kritik der Gewalt,’’ which was relevant to him for many reasons. Benjamin’s acknowledgment of Schmitt’s influence on him has always been viewed as scandalous (Taubes once defined the letter as a ‘‘mine that can blow to pieces our conception of the intellectual history of the Weimar period.’’≥ I would like to reverse the scandal, and propose that we read Schmitt’s theory of sovereignty as a response to Benjamin’s ‘‘Critique of Violence.’’ In his 1922 book Political Theology, Schmitt states clearly that the Ausnahmezustand means the ‘‘suspension of the entire existing juridical order’’; but then he immediately adds that ‘‘because the state of exception is always something di√erent from anarchy and chaos, in a juridical sense, an order still exists in it, even if it is not a juridical order. . . . Just as in the normal situation the autonomous moment of decision is reduced to a minimum, so in the exceptional situation the norm is annulled. And yet even the exceptional situation remains accessible to juridical knowledge, because both elements, the norm as well as the decision, remain within the framework of the juridical.’’∂ Schmitt can thus firmly criticize the idea that ‘‘the exception has no juridical meaning.’’∑ Though external to the law, the exception creates the normal situation in which the law can be in force. I would like to draw your attention to the peculiar topology that is implied in these statements. Already in his 1922 book on dictatorship, Schmitt is aware that martial law presupposes ‘‘a sort of iustitium,’’ that is to say, a ‘‘legal void,’’ and that the state of emergency (Ernstfall) ‘‘cannot take a juridical form.’’∏ Yet it is essential for him that the state of exception nevertheless the state of exception

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does not simply mean anarchy or anomie, but retains a juridical function. This means that, according to Schmitt, the Ausnahmezustand is not simply outside the juridical order, but that paradoxically this legal vacuum—insofar as it is not identical to anarchy—constitutes a sort of threshold between outside and inside. Now, what was the essential problem in Benjamin’s ‘‘Critique of Violence’’? It was to establish the possibility of a violence (Gewalt) absolutely outside (ausserhalb) or beyond ( jenseits) the law, a violence that could, as such, break the dialectic between rechtsetzende and rechtserhaltende Gewalt, lawmaking violence and law-preserving violence. Benjamin calls this other violence ‘‘pure’’ or ‘‘divine,’’ and also, in the human sphere, ‘‘revolutionary.’’ What the law cannot endure, what the law feels as an intolerable threat, is the existence of a violence outside the law, and this is not because the ends of such violence are incompatible with the ends of law, but because of its mere existence outside the law (durch ihr blosses Dasein ausserhalb des Rechts).π The purpose of the essay is precisely to ensure the reality (Bestand) of this pure violence: ‘‘If violence is also assured a reality outside the law, as pure immediate violence, this furnishes proof that revolutionary violence—which is the name for the highest manifestation of pure violence by man—is also possible.’’∫ In the essay, Benjamin does not mention the state of exception, though the term Ernstfall, which Schmitt uses as a synonym for Ausnahmezustand, is evoked. But another key word of Schmitt’s political lexicon is mentioned: Entscheidung, ‘‘decision.’’ Law, Benjamin writes, ‘‘acknowledges in the ‘decision’ determined by place and time a metaphysical category’’; but this claim to decision is, in reality, only a counterpart to the ‘‘discouraging experience of the ultimate undecidability of all legal problems.’’Ω I think that by now you will have understood the sense in which Schmitt’s definition of sovereignty can be considered a response to Benjamin’s ‘‘Kritik der Gewalt.’’ The state of exception is precisely the space in which Schmitt tries to capture and incorporate Benjamin’s conception of a pure violence that exists outside the law. There is no such thing as pure violence, there is no violence absolutely exterior to the nomos, because, in the state of exception, revolutionary violence is included in it through its very exclusion, and the anomie of the tumultus is absorbed in the no-man’s-land of the iustitium. The state of exception is the device by means of which Schmitt responds to Benjamin’s assertion of a pure violence. Thus, anomie is captured by means of a juridical vacuum that claims to be internal to the law. 290

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Similarly, it is in response to Benjamin’s idea of the ultimate undecidability of all legal problems that Schmitt a≈rms sovereignty as the locus of the extreme decision. That this locus is neither external nor internal to the law, that it lies in a zone of indi√erence between outside and inside, is the necessary consequence of Schmitt’s attempt to neutralize Benjamin’s pure violence (reine Gewalt). And just as pure violence, according to Benjamin, cannot be recognized as such (‘‘Nicht gleich möglich noch auch gleich dringend ist aber für Menschen die Entscheidung, wann reine Gewalt in einem bestimmten Falle wirklich war’’ [Less possible and also less urgent for humankind, however, is to decide when pure violence has been realized in particular cases]),∞≠ so too for Schmitt ‘‘it is impossible to ascertain with complete clarity when a situation of necessity exists, nor can one spell out, with regard to content, what may take place in such a case.’’∞∞ And it is precisely on this impossibility that the necessity of the sovereign decision is founded. If we accept these premises, then the Benjamin-Schmitt debate acquires a new meaning. Benjamin’s peculiar description of the baroque sovereign in the Trauerspielbuch can now be properly read as the esoteric response to Schmitt’s decisionism. While in Political Theology the theological paradigm for the state of exception is the miracle, for Benjamin the theory of the state of exception is modeled on the idea of the catastrophe.∞≤ In opposition to the pathos of Schmitt’s Entscheidung, Benjamin ironically splits sovereign power and the ability to exercise it. ‘‘The prince, who is responsible for making the decision on the state of exception, reveals, at the first opportunity, that it is almost impossible for him to make a decision.’’∞≥ This inability to decide is not to be understood psychologically. Horst Bredekamp has already observed that Benjamin introduces a nuance into Schmitt’s definition of sovereignty by writing that the most important function of the prince is ‘‘to exclude the state of exception’’ (den Ausnahmezustand auszuschliessen)∞∂ rather than ‘‘to decide’’ (entscheiden). The term must be taken literally: rather than deciding on the state of exception, the sovereign must ‘‘enclose outside’’ a state of exception that already exists. As Benjamin writes: ‘‘The sovereign is determined in advance as the holder of a dictatorial power in the state of exception, should war, revolution, or other catastrophes produce it’’ (ihn herau√ühren).∞∑ The decision on the state of exception is impossible because it has to move in a zone of undecidability between fact and law, between quaestio facti and quaestio iuris. Just as, in ‘‘Zur Kritik der Gewalt,’’ pure violence could neither be recognized nor decided a priori, so too is the state of exception undecidable. The sovereign—this is Benjamin’s parodic confuthe state of exception

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tation of Schmitt—represents the embodiment of this undecidability and nothing else. In the letter to Viesel of November 5, 1973, Schmitt describes his interpretation of Hobbes’s Leviathan in the two essays of 1937 and 1938 as ‘‘a response to Benjamin through the exposition of a great political symbol’’∞∏ and adds that this response had remained unnoticed (unbeachtet geblieben). Bredekamp has expressed some doubts about the authenticity of this claim, suggesting that the jurist who had been compromised with Nazism might have attempted in this way to cover, under the authority of a Jewish emigrant, the anti-Semitism of his writings. I would just add that it is also possible that in presenting his interpretation of Hobbes as an answer to Benjamin’s reading of Political Theology, Schmitt was evoking—and at the same time concealing—the fact that Political Theology was already an unnoticed response to Benjamin’s ‘‘Critique of Violence.’’ Indeed, a careful reading of the two essays on Hobbes shows that, although Benjamin is never mentioned, the text contains some discreet allusions to the Trauerspielbuch. At times the allusions are hidden in the bibliography, for instance when both texts strategically use a quotation from the same book.∞π In other instances, the allusion is lexical; thus, while Benjamin, referring to Shakespeare, speaks of a ‘‘primacy of the elemental’’ (Primat des Elementarischen), Schmitt borrows the same term to characterize Hobbes’s gesture. Moreover, Schmitt’s emphasis on the artificial nature of the Leviathan, ‘‘machina machinarum,’’ has a parallel in Benjamin’s emphasis on the image of the clock as paradigm for the baroque conception of the state. But the proximity is even more substantial than this and concerns the interpretation of Hobbes itself. As Leo Strauss had observed in his article on The Concept of the Political, Schmitt in some ways treats Hobbes’s state of nature as the political state par excellence, ‘‘the fundamental and most extreme condition of man,’’ in which the possibility of violent death is at stake. If Hobbes is so paradigmatic for Schmitt, this is precisely because, in the Leviathan, sovereignty comes into being through the inclusion of the state of nature in the status civilis. Hobbes clearly states that the sovereign has made no pact with the people; quite on the contrary, he is the only one to have conserved his natural right (‘‘so that [the right] was not given, but left to him, and to him only, and . . . as entire as in the condition of mere nature, and of war of every one against his neighbour’’ [chap. 28]). Sovereignty is only a remnant or an inclusion of the state of nature in the status civilis, and it is precisely this inner anomie—or this zone of undecidability between out292

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side and inside—that for both Hobbes and Schmitt defines the locus of the sovereign. This is why, in his 1937 essay, Schmitt can write that the sovereign is not ‘‘created, but only evoked, and therefore remains transcendent with respect to the members of the contract.’’∞∫ Schmitt pretends to be amazed by Benjamin’s disregard of Hobbes’s ‘‘great political symbol’’; but in reality Benjamin’s thesis on the baroque sovereign’s inability to decide can truly be read as an implicit critique of Hobbes. And the emphasis that Benjamin lays on the creaturely status of the baroque sovereign (er bleibt Kreatur),∞Ω who is described as a kind of animal, can legitimately be understood as an objection to the Leviathan’s claim to be, at the same time, in the status naturalis and not in the status civilis. The decisive document in the Benjamin-Schmitt file is certainly the eighth thesis on the concept of history. ‘‘The tradition of the oppressed teaches us that the ‘state of exception’ in which we live is the rule. We must attain to a conception of history that accords with this fact. Then we will clearly see that it is our task to bring about the real state of exception’’ [die Herbeiführung des wirklichen Ausnahmezustand].≤≠ That the state of exception has now become the rule is an intensification of its undecidability, but this also means that the state of exception is no longer able to fulfill the function Schmitt assigned to it in Political Theology: to define the normal situation. The state of exception is not meant to produce or confirm the rule—it tends, rather, to coincide with it, that is to say, to blur with it. (This diagnosis, of course, must also be read in the context of its historical situation: the Nazi regime, which, again, from the juridical point of view, must be properly considered as a state of exception that lasted twelve years.) From this perspective, the essential point is Benjamin’s distinction between a real and a fictitious state of exception. The distinction was already present in Schmitt’s book on dictatorship, which Benjamin had read. Schmitt borrows it from Reinach’s book De l’état de siège. But while Reinach, referring to Napoleon’s decree of December 24, 1811, opposes an état de siège e√ectif to an état de siège fictif, which can be declared by the emperor ‘‘lorsque les circonstances obligent de donner plus de forces et d’action à la police militaire, sans qu’il soit nécessaire de mettre la place en état de siège’’ [whenever circumstances require giving more forces and more power to the military police, without it being necessary to put the place in a state of siege],≤∞ Schmitt (criticizing as always the liberal idea of the État de droit) calls ‘‘fictitious’’ any state of siege that is regulated by the law in order to guarantee individual rights and freedom. the state of exception

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Once again, Benjamin reshapes the problem from a new perspective. The real state of exception (wirkliches Ausnahmezustand) is now opposed to a ‘‘state of exception’’ (between quotation marks) that is none other than the one that, according to Schmitt, defines the sovereign. This state of exception is fictitious—or, in any case, not real—because it claims to be at once both outside and inside the juridical order. On the contrary, the wirklich state of exception is the one produced (Benjamin uses the verb herbeiführen, which recalls the herau√ühren of the Trauerspielbuch) by pure or revolutionary violence, which has broken every relation to the law and is purely factual. Benjamin shifts the place of the state of exception entirely outside the juridical order. The state’s attempt to capture anomie in order to inscribe it in its own center is a pure fiction, the fictio iuris par excellence. Benjamin unmasks this fiction and exhibits the state of exception as it really is: civil war, pure violence with no relation to the law. Consequently, the site of the sovereign is not within the juridical order; rather, as in the engraving in the frontispiece of Hobbes’s Leviathan, he dwells outside of the city. The Benjamin-Schmitt debate is thus a dispute about a zone of anomie that, on the one hand, must be seized and incorporated at any price and, on the other, must be kept free or disentangled from any relation to the law. Benjamin seeks to ensure violence’s existence outside the law, while Schmitt attempts to capture pure violence through the fiction of the state of exception. But in reality this logomachy echoes the gigantomachy, the struggle of giants, that is always already taking place in Western politics—a gigantomachy that, like the gigantomachia peri t¯es ousias, is a fight over a void, a hollow space, as if this void (anomie, pure violence, or state of exception) were the fundamental political wager of the West. Why does the Western juridico-political order constitute itself through a contention over a legal vacuum in exactly the same way as Western metaphysics presents itself as a struggle over pure being? I will not try to answer these questions right now. But I would like to evoke, just before concluding, two di√erent, almost opposite figures of this fight for a hollow space, of this struggle for anomie. I mentioned to you that in later Roman times the term iustitium comes to acquire the meaning of ‘‘public mourning,’’ and serves as a name of the solemn ceremony for the burial of the sovereign. Scholars have not found a satisfactory explanation for this curious semantic evolution by which a term that meant the suspension of the law in the state of exception comes to designate the funus publicum. Clearly there is an attempt here on the part of 294

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the principate to appropriate the iustitium and to transform it into a kind of private a√air. Indeed, the original sense of the iustitium disappears with the end of the Republic and it finally comes to denote only the sovereign’s burial. But what made this appropriation and this transformation possible? In a very interesting study, William Seston has shown how the two meanings of the iustitium were linked: in its proper sense, the iustitium already had the character of public mourning, and the ceremony for the burial of the sovereign, with its military parade, contained in some way the reminiscence of a mobilization in the face of public danger. H. S. Versnel, on the other hand, argues that the general phenomenology of mourning rites reveals a marked resemblance between mourning and periods of political crisis, which are characterized by the collapse of normal social structures. But what is the reason for this proximity? What binds together the two meanings of the iustitium? Let us take Suetonius’s famous description of Augustus’s death at Nola on August 19, a.d. 14. The old emperor, lying on his bed surrounded by friends and courtiers, seems, according to Suetonius, only concerned to know whether he had correctly performed the mimus vitae, the ‘‘play of life,’’ and yet nevertheless keeps asking an iam de se tumultus foris fuisset, ‘‘if there was now a tumultus for him outside.’’ The original, essential connection between tumultus and iustitium, civil war and state of exception, is still there. Augusto Fraschetti has shown how Caesar’s burial was the occasion of violent riots and speaks of ‘‘seditious funerals.’’ It is as if the sovereign, who had embodied in his person all exceptional powers, making a iustitium no longer possible, now, at the moment of death, when his body is near corruption, disclosed his original proximity to anomie and once again saw tumultus set free foris, ‘‘outside’’ (note that de se . . . foris in Suetonius’s text can mean both: ‘‘for him’’ and ‘‘outside of him’’). The tumultus, as the zone of the original anomie, now coincides with the sovereign’s death. And you will perhaps remember how Bickermann and Kantorowicz have examined the meaning of the funus imaginarium of the sovereign, when a wax image of the dead emperor was treated as a living person in order to ensure the continuity of the supreme power during that peculiar period of crisis and possible anomie that was the interregnum. The structural proximity between tumultus and iustitium, civil war and pure violence on the one hand and the state of exception on the other, also has, as it often happens, an inverse figure. Karl Meuli, in a series of brilliant studies, the state of exception

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has analyzed anomic feasts and rites from the Greek Anthesteria and the Roman Saturnalia to the medieval and modern charivari and Carnival. Historians, ethnologists, and folklorists are familiar with these kinds of festivals, which have in common a suspension and complete reversal of the juridical and social relations that define the normal order: masters serve their slaves; men behave and dress like animals; misdemeanors and crimes that would be punished are permitted. But Meuli was the first to put these anomic feasts in direct relation to the situations of suspended law that characterize certain archaic penal institutions like the German Friedlosigkeit or the English wargus, where, as in the iustitium, a man could be executed without trial, his house destroyed, and his possessions seized. The disorder of Carnival and the tumultuous disruptions of the charivari reproduce not a mythological past but a real and historical situation of anomie. What I find interesting here is that, like in the imperial iustitium, a state of exception is appropriated and transformed into a ceremony; but while in the imperial iustitium the feast was performed in the mournful form of military mobilization, here the state of exception is transformed into an unrestrained feast in which pure violence is exhibited and enjoyed as such. In both cases, the essential link between juridical order and anomie, between power and pure violence, the state of exception and civil war, comes to light. The questions with which I would like to conclude this paper are therefore: Why is nomos so constitutively in need of anomie? Why does Western politics essentially and originally have to cope with this inner hollow space? What is the substance and the place of politics, if it has essentially to do with a legal vacuum? As long as we cannot answer these questions, we will also not be able to respond to the other question that sounds throughout the history of Western politics: what does it mean to act politically? notes 1 Aldoph Nissen, Das Iustitium. Eine Studie aus der römischen Rechtsgeschichte (Leipzig: Gebhardt, 1877), 98. 2 Nissen, Das Iustitium, 76. 3 Jacob Taubes, Ad Carl Schmitt. Gegenstrebige Fügung (Berlin: Merve, 1987), 27. 4 Carl Schmitt, Politische Theologie (Munich-Leipzig: Duncker und Humblot, 1922), 12; translated by George Schwab as Political Theology (Cambridge: mit Press, 1985), 12. Hereafter page number of German edition cited first, of English translation second. 5 Schmitt, Politische Theologie, 13/13. 296

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6 Carl Schmitt, Die Diktatur: Von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen Klassenkampt (1922), 5th ed. (Berlin: Duncker und Humblot, 1989), 173, 175. 7 Walter Benjamin, ‘‘Zur Kritik der Gewalt’’ (1921), in Gesammelte Schriften (Frankfurt am Main: Suhrkamp, 1972), vol. 2, pt. 2, ed. Rolf Tiedemann and Herman Schweppenhäuser, 183; translated by Edmund Jephcott as Critique of Violence, in Selected Writings, vol. 1, 1913–1926, ed. Marcus Bullock and Michael W. Jennings (Cambridge: Harvard University Press, Belknap Press, 1996), 229. Hereafter page number of German edition cited first, of English translation second. 8 Benjamin, ‘‘Zur Kritik der Gewalt,’’ 202/252. 9 Benjamin, ‘‘Zur Kritik der Gewalt,’’ 189/243 and 196/247. 10 Benjamin, ‘‘Zur Kritik der Gewalt,’’ 202–3/252. 11 Schmitt, Politische Theologie, 9/6–7. 12 Walter Benjamin, Ursprung des deutschen Trauerspiels (1928) in Tiedemann and Schweppenhäuser, Gesammelte Schriften, vol. 1, pt. 1, 9; translated by John Osborne as The Origin of German Tragic Drama (London: Verso, 1998), 66. Hereafter page number of German edition cited first, of English translation second. 13 Benjamin, Ursprung des deutschen Trauerspiels, 250/70–71. 14 Benjamin,Ursprung des deutschen Trauerspiels, 245/65. 15 Benjamin, Ursprung des deutschen Trauerspiels, 245–46/65. 16 Hansjörg Viesel, Jawohl, der Schmitt. Zehn Briefe aus Plettenberg (Berlin: Support: 1988), 14. 17 Frédéric Atger, Essai sur l’histoire des doctrines du contrat social, 1906. 18 Carl Schmitt, Staat, Großraum, Nomos (Berlin: Duncker und Humblot, 1995), 98. 19 Benjamin, Ursprung des deutschen Trauerspiels, 264/85. 20 Walter Benjamin, ‘‘Über den Begri√ der Geschichte’’ (1942), in Tiedemann and Schweppenhäuser, Gesammelte Schriften, vol. 1, pt. 2, 697; translated by Harry Zohn as On the Concept of History, in Selected Writings, vol. 4, 1938–1940, ed. Howard Eiland and Michael W. Jennings (Cambridge: Harvard University Press, Belknap Press, 2003), 392. 21 Theodor Reinach, De l’état de siège. Étude historique et juridique (Paris: Pichon, 1885), 109.

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contributors

Giorgio Agamben teaches philosophy at the Collège International de Philosophie in Paris and at the University of Verona in Italy. His books include Language and Death, Stanzas, The Coming Community, Homo Sacer: Sovereign Power and Bare Life, The Man without Content, Potentialities: Collected Essays in Philosophy, The End of the Poem, Remnants of Auschwitz: The Witness and the Archive, and Means without End: Notes on Politics. Andrew Benjamin is a professor of critical theory at Monash University in Melbourne and a visiting professor of architectural theory at the University of Sydney. His publications include The Plural Event (Routledge, 1993), Present Hope (Routledge, 1997), Architectural Philosophy (Continuum, 2001), Philosophy’s Literature (Clinamen, 2001), Disclosing Spaces: On Painting (Clinamen, 2003), and numerous edited collections. He is the joint editor of Walter Benjamin Studies. Peter Fitzpatrick is Anniversary Professor of Law at Birkbeck College School of Law, University of London, England. He has also worked as a solicitor in an international legal practice and in the prime minister’s o≈ce in Papua, New Guinea. He is the author of Modernism and the Grounds of Law (Cambridge, 2001) and The Mythology of Modern Law (Routledge, 1992). Anselm Haverkamp is a professor of English at New York University and has also taught at Bergen/Oslo, Berlin, Freiburg, Oregon, Minnesota, and Yale. He is the author of Leaves of Mourning (suny, 1996) and Memory Inc. (any Press, 1996), and the editor of Deconstruction Is/In America: A New Sense of the Political (New York University, 1995). Paul Hegarty teaches in the Department of French in University College Cork. He is the author of Georges Bataille (Sage, 2000), as well as articles on architecture, twentieth-century art, contemporary theory, and most recently, on Japanese noise music. He is currently working on a book on Jean Baudrillard. Andreas Kalyvas teaches political theory at the University of Michigan. He has authored and coauthored articles in Constellations, Philosophy and Social Criticism, Political Theory, The Review of Politics, Telos, and Thesis Eleven. He is currently completing a book entitled The Politics of the Extraordinary. Rainer Maria Kiesow is a research scholar at the Max-Planck-Institute for European Legal History, Frankfurt am Main, where he edits the Rechtshistorisches Journal. He is the chairman of the Young Academy at the Academy of Science BerlinBrandenburg and the Academy of Science Leopoldina Halle, Berlin, the author of

Das Naturgesetz des Rechts (Suhrkamp, 1997), and the coeditor with Gerd Bender and Dieter Simon of Das Europa der Diktatur: Wirtschaft—Steuerung—Recht (Nomos, 2002). Catherine Mills is a lecturer in philosophy at the University of New South Wales in Sydney, Australia. Her work has appeared in The Journal of Political Philosophy, Australian Feminist Studies, Borderlands e-journal, and elsewhere. She has recently coedited (with Fiona Jenkins) a special issue of Borderlands on ‘‘Unassumable Responsibility: New Perspectives on Freedom, Justice and Obligation.’’ Andrew Norris teaches political theory at the University of Pennsylvania. His work has appeared in Constellations, Diacritics, Metaphilosophy, Political Theory, Polity, Radical Philosophy, Telos, and Theory and Event. He is the editor of The Claim to Community: Essays on Stanley Cavell and Political Philosophy (forthcoming from Stanford). Adam Thurschwell is an associate professor of law at Cleveland State University, Cleveland-Marshall College of Law. He writes about Continental philosophy and capital punishment, and practices law as a capital defense attorney. Erik Vogt teaches philosophy at Trinity College, Connecticut. He is the author of Sartres Wieder-holung (Passagen, 1995) and Zugänge zur politischen Ästhetik (Turia+Kant, 2003), the coeditor and translator of Derrida und die Politiken der Freundschaft (Turia+Kant, 2003), and the editor of the series Neue Amerikanische Philosophie (Turia+Kant). Thomas Carl Wall is an assistant professor of English at the National Taipei University of Technology in Taiwan. He is the author of Radical Passivity: Lévinas, Blanchot, and Agamben (suny, 1999).

300 contributors

index

aesthetics, 97–99, 105–6; knowledge and, 274–75 alterity, 110–11, 154, 164, 172, 190

bare life, 3–5, 7, 14–15, 45, 46; actualization of, 79–81; comprehension of, 80; exclusion and inclusion and, 7–

anomie, 288–98

8, 78, 83–85; good life and, 4–7,

Antelme, Robert, 32

277–78; political life and, 4, 7–9, 14,

anthropology, 31, 51

17, 21, 24–26, 77, 262–64; politiciz-

Antigone (Sophocles), 26–27

ation of, 4, 6–7, 11, 19, 39, 263–65,

appearance, co-appearance and, 215.

278; production of, 263–64; sacred

See also distinction and indistinction

and, 17; sacrifice and, 44. See also threshold: of life and death

Archiv fur Sozialwissenschaften, 288–89

Bataille, Georges, 31, 35; on capital-

Arendt, Hannah, 5, 8, 11–12, 20–21,

ism, 222–28; on fascism, 243–44;

37, 263, 265–66, 279–80; on death, 266, 271; on identity, 5; judgment

on Hegel, 25–26; on Holocaust, 222–47; on Sade, 229–30

and, 282; sovereignty and, 108–11

Being, 18, 36, 182; death and, 38, 266;

Aristotle, 1–14, 17, 20, 24–26, 37, 38,

speech and, 265–66. See also pres-

118, 162, 176–77, 181, 277–78; polis and, 78; speech and, 265–66. See also bare life; good life auctor, 89–90 Aufhebung, 5, 26, 139 Auschwitz-Birkenau, 17, 74–75; bi-

ence; truth Being and Time (Heidegger), 17–19, 23, 29, 175–76 Being-in-common, 28. See also community; Heidegger, Martin Benjamin, Walter, 20, 23, 31–32, 41,

opolitics and, 91; representation

63, 76, 98–99, 108, 135–43, 174, 195,

and, 75–76, 81–82, 89–90. See also

249–55, 288–93; Arendt and, 279–

camps; testimony; victim

80; historicism and, 76; Hobbes

Ausnahmezustand, 289–90. See also exception: state of

and, 292–93; latency and, 137; on law, 290; mere life and, 281; Schmitt

authenticity, 231; testimony and, 81–84

and, 194–96, 288–93; on state of ex-

authority, 14–15. See also power; sov-

ception, 283, 293–94

ereignty auto-a√ection, 86, 93, 211. See also subjectivity autonomy, 97, 165

Bettelheim, Bruno, 13 biopolitics, 14–15, 37, 55–61, 67–69, 174, 202–5, 262, 273–74; camps and, 202–5, 209–10, 218, 255–57; history

biopolitics (cont.) and modernity and, 76–100, 104, 110– 28; language and, 92; sovereign and,

Critique of Judgment (Kant), 274 ‘‘Critique of Violence’’ (Benjamin), 135–43, 288–93

78; West and, 271–74. See also

Crito (Plato), 6–7

Foucault, Michel; power; sovereignty

culture: modern, 97–98; violence and,

biopower, 2, 47–49, 56–59, 79–80, 91,

136–37. See also zo¯e

116, 120–21, 202 bios, 34–37, 64–66, 77 Borowski, Tadeusz, 12–13

Darstellung, of Auschwitz, 75. See also representation

boundaries, 78, 275

Dasein, 5, 18, 36, 141

Bush, George W., 19

death, 38; ability-to-die, 36; defined, 2; of God, 20, 38; in iustitium 288–89;

Caldwell v. Mississippi, 187–91

language and, 5; moral, 13; 17; right

camps, 12, 32–34, 38, 79–87, 262–64,

to, 38; sacrifice and, 24, 31, 38;

270–71, 275–76, emergence of,

shame and, 86–87. See also sacrifice

276–77; modern society and, 79–80;

death camps. See camps

political and, 271–72; representation

death row, 11. See also camps

of, 85–86; as threshold, 13; 17. See

DeCaroli, Steven, 275

also Auschwitz-Birkenau; Holocaust

decision, 37–38, 273–77; death and,

capitalism, 111. See also Bataille, Georges: on capitalism

258; necessity of, 290–92; political, 10–15, 58–68, 107–10, 118, 129, 187–

capital punishment, 186–90

90, 262–83, 287–90. See also excep-

Cavarero, Adriana, 199, 209, 213–19

tion; sovereign

Celan, Paul, 32, 83, 95–96 Christianity, 26, 244; metaphysics and (see God; religion) Cicero, 286 civil war: state of exception and, 284– 87; theory of, 284–85 Coming Community, The (Agamben), 275–76 community, 15, 28, 38; coming, 43, 113–18, 275–76. See also identity Concept of the Political, The (Schmitt), 269, 289

decisionism, 273, 278, 291. See also Schmitt, Carl deconstruction, 21, 80, 173–75, 180, 220, 242–43 democracy, 167; bare life and, 79–80 Derrida, Jacques: metaphysics and, 175; political and, 183 desire, 184. See also narrative: desire for determinacy, 127; indeterminacy and, 218, 285 Diese, 6 di√erence: absence of, 249–56; conflict

consciousness, 203–6, 213

and, 117, 127. See also indi√erence, of

Constitutional Theory (Schmitt), 267

language

corporeality, 215–17 302 index

Discipline and Punish (Foucault), 142

disclosure, of space, 153–56, 167

evil, 12–14, 74, 179, 229, 269, 282

discontinuity, 91, 96–97, 110–13

exception, 14, 27, 30, 264; decision on

distinction and indistinction, 3–4, 16–

268; exclusion of, 291–92; language

18, 21, 24, 28, 34–37, 50, 61, 65–67,

and, 80–81; reality of, 294–95; rule

78–84, 87–88, 104, 108–14, 156–67,

and, 269, 293; state of, 271–72, 284–

200–202, 219, 253–56, 268–69, 283. See also exclusion and inclusion; threshold division, 90, 94, 171, 212 doubt, 32; conflict and, 117, 127; distrust and, 75–76 duty: of justice, 13; law and, 157; to speak, 43

94. See also iustitium excess: excess energy and, 226–28; language and, 80–81; life and, 57, 68, 235–36; sacred and, 234 exclusion and inclusion, 11, 262–64, 268–70; Da-Sein and, 18; 22; inclusive exclusion, 79; language and, 80; philosophical, 199; in politics, 18. See also threshold

economy, 30; of pleasure, 113–14; restricted, 226–33, 239

existence: factical, 36; historical, 98; human, 10–12, 76–77, 182–83, 202,

emergence: of aesthetics, 105–6; of bi-

232–33, 266, 269–70, 273; law and,

opolitics, 77–78; of biopower, 91; of

62–63, 68–69; question of 2, 25, 28,

camps, 112, 276; of capitalism, 111;

37–38, 50–51; social, 35; speech

of political, 270; of subject, 198, 210

and, 216, 240; of subject, 211. See also

emergency, 9, 41, 99, 108–13, 118, 267– 68, 284–86, 289–90. See also exception; Schmitt, Carl end: good life and, 24; of law, 290; of

humanity; life experience: communication of, 35; inner, 229, 240; possibility of, 93–95; sovereign, 237; time and, 113

politics, 3, 195; of violence, 290 Entscheidung. See decision

‘‘Fate and Character’’ (Benjamin), 31–32

episteme, 111

Felman, Shoshana, 81–82

Ernstfall. See emergency

fiction, 43–44, 294

essence: of action, 265; of art, 97–98;

figure, 51; of action, 64; of other, 183–

of bios, 39; of law, 253; of man, 29, 88; of metaphysics, 17; of politics and the political, 16, 28, 185, 195, 262–63, 265; of technology, 16, 29

84; poetry and, 95 forgetting: of Being, 175–76; silence and, 223 Foucault, Michel, 2–3, 37, 49, 54, 77,

État de siège, De l’ (Reinach), 285

111, 142; Agamben’s ‘‘correction’’ of,

ethics, 6, 23, 84, 186–92, 198–220; of

56–58, 77–78, 201–2, 216–17; ‘‘pas-

contingency, 214–15, 217; Socratic,

toral power’’ and, 120; on Plato, 120–

271; of survival, 208; of testimony,

21; on sovereignty, 169. See also bio-

210, 215, 217; of witnessing, 205–17

politics; biopower index

303

freedom: individual, 272–73, 293; po-

Heraclitus: meaning and, 145–47;

litical, 110; 115; possibility of, 164;

method and, 169–70; on nomos, 148–

sovereignty and, 237

54, 159, 162–68

Frege, Gottlob, 274

herm¯eneia, 176–77

Freud, Sigmund, 138

historical condition, 92 historicism, 76–77

Girard, René, 10

historicity, 94–99

God: as creator, 240–41; death of, 20,

history: aesthetics and, 96–99; of

38; as lawgiver, 109–10; Locke’s ac-

Auschwitz, 91; concept of, 294–96;

count of, 272–73; Shechinah and, 178;

di√erence and, 250; end of, 191; in-

violence and, 139. See also religion

ner, 205; of law, 146–47, 254–57;

gods: in myth, 121–22, 156–57; nomos

metaphysics and, 176–77, 263–64,

and, 156; violence and, 139

270–71; nomos and, 148, 159; ontic,

good, 12–13, 116–17, 190

94; philosophy and, 92, 264; philos-

good life, 3–7, 21, 39, 78, 107, 266–67,

ophy of, 82, 90–91; political, 37, 44,

271, 277. See also political life

110–14, 264, 283; possibility of, 92–

Gorgias (Plato), 160

94; progress of, 5, 76–77; represen-

Greece, ancient: Anthesteria and, 296;

tation of, 75–76; semantic, 92, 94; of

philosophy of, 26–27, 148; political

sovereignty, 111–12, 163–65; of

tradition of, 109–12; traditions of,

thought, 147, 234; time and, 111;

296

truth and, 75–76; violence and, 136–

Guantánamo Bay, 19, 30, 70–71, 245– 46 guilt, 82–85, 248–49, 260; absence of, 228; innocence and, 85, 202–3. See also shame

40, 194 History of Sexuality (Foucault), 77 Hitler, Adolf, 285. See also National Socialism Hobbes, Thomas, 288–93; Bodin and, 262; law and, 52; on politics, 36;

Hegel, G. W. F., 130; Bataille and, 235– 36; on identity, 5; language and, 276; on language, 5–6; 22, 26; sublime and, 240–41 Heidegger, Martin, 15–19, 23, 29, 175–

Schmitt and, 269–70, 290–93; on sovereignty, 161 Hölderlin, Friedrich, 80, 94–95; on law, 160, 172; on rhythm, 105 Holocaust, 84–85; depoliticization of,

76, 265; on camps, 32, 74–75; ethos

74–75; language and, 82–83; silence

and, 191–92; Holocaust and, 29, 74–

and, 222–47; speech and, 74. See also

75, 223–25; language and, 5–6, 264–

camps; National Socialism

66, 277; on life, 36–38, 140; meta-

homicide. See death; sacrifice

physics and, 15, 175; on subjectivity,

homo laborans, 37

86–87, 93; on technology, 16–17

homo sacer, 10, 19, 37, 42, 49–50, 70,

304 index

138, 142, 234–36, 253–55; law and,

183; of rule for genius, 274; of se-

53–54, 63–64, 147, 163–66, 186–89;

curity and terror, 284; of sovereign

meaning of, 78–79; modernity and,

power, 107–9; ‘‘zone of indetermina-

54–56, 65–69, 78–79, 99, 257–60,

tion,’’ 37

267–71; origin of, 51–53. See also sa-

indi√erence, of language, 42

cred

individual, 150–54

Homo Sacer (Agamben), 2, 6, 8, 29, 35, 76–81, 262, 267–76 human, 4–5, 11–14, 18–20, 25–27, 35– 36, 52, 66, 77, 88, 120–26, 141–42, 164–65, 187, 229–32, 245, 255, 273; historical context and, 92, 198–220; inhuman and, 83–93, 232–40, 263–

infinite, 64, 95–96, 266 interpretation: limits of, 18, 145, 176– 79; representation and, 75 ‘‘In the Penal Colony’’ (Kafka), 248–49, 257–58 intimacy, subjectivity and, 86–88. See also shame

67. See also existence; humanity; sub-

isonomia, 111

jectivity

iustitium, 286–87; action within, 287–

Human Condition, The (Arendt), 265–66, 279–80

88; law and, 289–90; meaning of, 294–96; sovereign and, 295–96;

humanism, 14, 28, 167, 170, 275

state of exception and, 287–89, 294–

humanity, 4–9, 13, 83–84, 93, 263–66;

96. See also exception: state of

(in)distinction and, 83–88; limita-

Iustitium, Das (Nissen), 286–87

tions of, 13, 22–23, 198–202, 231– 32, 242; political and, 115. See also humanity; subjectivity Human Race, The (Antelme), 32

Judeo-Christian tradition, 26, 244; metaphysics and (see God; religion) juridical order, 9–10, 51–64, 237–38,

human rights, 12–13, 263, 270–71

254–55, 269; sovereign and, 287–

identity, 15, 33; attribution of, 166; his-

and, 294. See also exception

89; suspension of, 295–96; violence torical context and, 92; human, 87–

justice: defined, 3, 116, 132, 154–70,

88; individual, 213–15; Jewish, 170;

253; political foundations of, 263

lack of, 59–61; moral, 262; political, 263; will-to-, 39

Kafka, Franz, 168–69, 248–49, 257–

If This Is a Man (Levi), 82–83

58, 259–60; history and, 99; law

impossibility. See possibility and impos-

and, 252

sibility inclusion. See exclusion and inclusion indeterminacy: of Auschwitz, 218; of

Kant, Immanuel: on judgment, 274– 77; on subjectivity, 93; on sublime, 222

civil war and the state of exception,

kh¯ora, 181–84

284; of life and law, 58, 65–66, 80,

killing. See death; sacrifice index

305

knowledge: juridical, 289; love of, 184–

values and, 117–18; violence and,

85; metaphysical, 177–81; possibility

140, 156–67, 194–95, 236–40, 290–

of, 194–95; ‘‘supreme knowledge,’’

92. See also juridical order; nomos

189; transparency of, 81–82

Laws (Plato), 160–61 leadership, divine, 156

Lacoue-Labarthe, Philippe, 16, 28, 264 Lager, 13, 263, 267 Lang, Berel, 75–76, 224–25 language, 34, 180–85, 195–96, 252, 264–65; articulation and, 32; beingin-, 42, 176; dependence on, 34–35;

legitimacy: camps and, 244–45; democratic, 110, 132; political, 188–89, 236 ‘‘Letter on Humanism’’ (Heidegger), 265 Levi, Primo, 12–13, 82–83, 88, 200– 202, 263

faculty of, 4–6, 210–17, 276–77; hu-

Leviathan (Hobbes), 288–93

manity and, 5–6, 25–26, 86–89,

Levinas, Emmanuel, 76; ethics and,

204–11; Idea of, 176–80; law and, 174; legal, 31; paradox of, 80–82; po-

183–92, 196; on shame, 86, 203 life, 36; certainty of, 35; death and, 12,

etry and, 95–96; silence and, 41;

267; dual nature of, 37; as freedom,

speech and, 23, 42–43, 47–48, 88–

272; language and speech and, 86–

89, 91–92; testimony and, 92–94; vi-

89; metaphysics of, 17, 270; sacred,

olence and, 136; voice and, 23; wit-

10, 31. See also death; threshold

nessing and, 139–40. See also speech; thought

limit figure, 9, 63, 76, 237, 269. See also Muselmann; threshold

Language and Death (Agamben), 5–6

literature, 43

Lanzmann, Claude, 32–33, 47–48

Livy, 287

law, 8–13; capital punishment and,

Locke, John, 14, 20, 272; on life and

186–90; distinction and, 49, 78–79; divine, 40, 269; exception and, 288–

death, 272–73 logos, 4–7, 10, 149–53, 277

90; formation of, 135–41, 145–47, 235–36; homo sacer and, 50–56, 61–

madness, 171

69, 253–55; international, 170–71;

marginality, 14, 24–26, 265–70

language and, 174; life and death

mere life. See bare life

and, 11, 31–38, 47, 61–69, 141–42,

metaphysics: critique of, 23, 175–80;

169, 249–60; Locke and, 271–73;

history of, 264–67; Holocaust and,

‘‘preformed,’’ 58–59; Roman, 49,

74; knowledge and, 178; life and, 17,

112, 136–42, 234, 245–46, 285; as

270–71, 278; ‘‘metaphysical move-

situational 9, 269–70; sovereignty

ment,’’ 6–7; ontology and, 185; poli-

and, 24, 56–61, 147–48, 160–67,

tics and, 5–6, 15–16; of speech, 217;

268–69, 294; suspension of, 41,

thought and, 36; Western, 4, 278,

286–87, 294–96; validity of, 78;

294. See also philosophy

306 index

metoikos, 164 Meuli, Karl, 295–96 modernity: Auschwitz and, 226; bi-

physics and, 264, 270; movement through, 5; sovereignty and, 236 neutrality, language and, 34

opolitics and, 77–80, 174; homo sacer

Nicomachean Ethics (Aristotle), 1

and, 54–56, 147; law and, 50, 61–64,

Nietzsche, Friedrich, 2, 223; eternal re-

270–71; political and, 2–3, 12, 77, 109–12. See also biopolitics morality, 22; camps and, 13, 84; obligation and, 22–23 mortality, 5–6, immortality and, 85, 216, 266. See also death Muselmann, 13, 66, 79–95, 104, 198–

turn and, 90–91 nihilism, 2, 39, 95, 270 Nissen, Adolph, 286–87 nomos, 60, 146–68; anomie and, 296; camps and, 199, 208, 277; (in)distinction and, 108, 146–62, 250–51, 258; life and, 163–64; madness and,

201, 220, 233, 263, 267, 270, 276;

171; meaning, 66, 167–69; modernity

representation of, 85–86. See also

and, 79, 148, 164–67; violence and,

bare life; limit figure; threshold

159–60, 194–95, 290. See also law non-human. See human

Nancy, Jean-Luc, 15, 22, 28, 31, 164, 213, 229, 264, 278 narration. See interpretation; representation narrative, 74–75; desire for, 214–18; history and, 91, 136; narratability

normalization, 30, 41, 245–46. See also biopolitics; biopower norms, 170–71; law and, 116, 250, 267– 68, 289; in state of exception, 256, 289–90. See also order Nur-noch-leben, 18

and, 199, 209–16. See also representation nation, 11–12, 270; nation-state, 8, 166–69, 170–71, 262 National Socialism, 14–15, 44, 57, 75– 76, 80, 102, 142, 223, 227, 253–57, 271. See also camps nature, 35; culture and (see threshold); state of, 292–93

objectivity: of facts, 76; of history, 76 obligation: to justice, 13; law and, 157; to speak, 43 oikos, 39–41, 109, 114, 119. See also polis On the Way to Language (Heidegger), 5, 15, 16 ontology: as anaesthetics, 93; animal and, 23; critique of, 185; of Da-Sein,

Nazi Germany, 166–67, 223–24

18–19; ‘‘fundamental ontology,’’ 29,

necessity, 74, 113, 291; absolute, 89–90;

36–39, 173, 191–92, 196; modern,

aesthetics and, 274; philosophy and,

103; names and, 145, 182–83; of sub-

182–84; speech and, 93; of violence,

ject, 103

245 negation, 104; of contingency, 89; of exception, 113; of life, 239; meta-

order, 156–57, 166, 203; legal, 117, 126; normal, 58–61, 268–69, 296; political, 78–79, 219; social, index

307

order (cont.) 49–50; syntactical, 137; of violence, 140. See also juridical order originary relation, of politics and life, 78–79 Origin of German Tragic Drama (Benjamin), 288 Origins of Totalitarianism, The (Arendt), 5, 11–12, 266 other, 41, 79, 83, 178–92, 211, 214, 228

Political Theology (Schmitt), 267–68, 277, 291 politics: Holocaust and, 42–45; law and, 248–60; metaphysics and, 36, 175; modern, 49, 54–56, 68, 77–80, 107–8, 110–13, 120, 200, 218; nature of, 1–18, 35–36, 107–28, 173–74, 185, 235, 262–67, 270–73, 277; ontology of, 18; pathos of, 17; philosophy and, 16, 173–75, 187, 277–78, 296; statist, 41, 116; violence and, 195–96. See also polis; political; sov-

‘‘Pardes’’ (Agamben), 177 past, 1, 97–98, 111, 127, 148, 257–58. See also history

ereignty Politics (Aristotle), 12, 277–78 possibility and impossibility, 62, 159;

Philippics (Cicero), 286

abstraction and, 150, 158; of being,

philosophy, 159, 173–90, 215–16, 277–

15, 38, 157; community and, 196; of

78; of body, 161; first, 174–75, 217;

decision, 11; of distinction, 14, 164–

Greek, 26, 148; history of, 264; of

65, 256; of ‘‘the exemplary,’’ 241–42;

history, 82, 90–91; language and,

of history, 84; human and, 93, 163–

176–84, 262; Platonic, 119; political,

64; of inscription, 146–47; judgment

3, 14–16, 21, 110, 173–75, 191–92,

and, 151; knowledge and, 194–95;

263–64, 278, 288–89. See also Being;

language and, 174, 184; law and, 167;

metaphysics; truth

permanent, 36; of representation,

physis, 64, 108, 160–62, 250–51

75; of silence, 222–41; of speech, 35,

Pindar: meaning and, 145–47; on

42–43, 87–94, 204–16; of violence,

nomos, 154–59 Plato, 6–8, 110, 118–28, 122, 145, 160– 63, 176, 181–83. See also Socrates polis, 3; life inside, 78–79; as site of metaphysics, 278; sovereign and, 78

290, 292; of war, 7; witnessing and, 80–90, 201 potentiality, of speech, 88–89 power, 38; legal, 77; limits of, 55; views of, 77–78. See also law; sovereignty

political, 1–6, 16–17, 31–35, 263–70

presence, dual, 81–82. See also Being

political life, 3–15, 24, 35–38, 77–80,

private, 2, 22, 40, 45, 107–9, 114, 147–

121–23, 200; political philosophy,

52, 253, 266–67, 287, 295

14–16, 110, 119, 173, 185, 191, 219,

property, 2, 20, 92, 183, 254, 272

263–64, 278, 288–89; political prac-

Protagoras (Plato), 160–61

tice, 15. See also law

proximity, 38, 232, 285, 292–96

Political Romanticism (Schmitt), 270 308 index

race: biological, 126; human, 35

self, 199, 209–15

rationalism, 222–28

semantics, 81–82, 92, 95, 162, 179,

rationality, 18, 120, 188, 233–35 reality, 26, 36, 85, 97–98, 116, 121, 127, 213, 228–29, 287, 290. See also corporeality

184–85, 294 shame, 84–87; experience of, 92–93. See also guilt Shechinah. See God

Reinach, Theodor, 285

Shoah (Lanzmann), 32–33, 47–48

religion, 234, 243–44, 254

signification, 80–81. See also language

Remnants of Auschwitz (Agamben), 80

silence: (in)distinction and, 87–88;

repetition, 100, 235–36 representation: biopolitics and, 80–81; facts and, 75–76; modes of, 75 Republic (Plato), 7–8, 119, 122

language and, 74 Socrates, 6, 34, 120, 184 Sophocles, 26–27 sovereignty, 8–10, 24, 31, 262–64,

responsibility, 198–99

268–69, 291–93; biopolitical and,

revolution, 140, 245, 291; democratic,

77; violence and, 295–96. See also de-

111; ontological, 37 rights: to death, 38; natural and civil, 12 Roman law, 285–86; tradition and, 294–96

cision; exception Specters of Marx (Derrida), 183 speech, 15, 32; politicization of, 34; possibility of, 35, 89, 93. See also language; silence

Rousseau, Jean-Jacques, 162, 246

spirit, 85, 92, 96, 201, 231–32

rule, 292–93. See also exception; norms

stasiology, 284–85 state power, 15, 294; sacred and, 15. See

sacred, 9, 37; exclusion and, 79; politics of, 15. See also homo sacer sacrifice, 10, 24, 25–26, 31, 38, 44, 267. See also death Savigny, Friedrich Karl von, 63, 250–53 Schmitt, Carl, 6, 8, 24, 264, 267–70,

also sovereignty statesman, 120–28 Statesman (Plato), 119–28 status civilis, 293. See also political; politics; state status naturalis, 293. See also nature

277, 284, 291; Benjamin and, 288–

Strauss, Leo, 292

93; decision and, 267–78; En-

subject, in language, 198–211

tscheidung and, 291; exception and,

subjectification, 2, 64, 86–94, 104,

78; Hegel and, 270; Hobbes and, 141, 292–93; on law, 267–68; state of emergency and, 9, 268–69; Nazism and, 292. See also exception Schnur, Roman, 284 science, 1. See also technology

198–212, 217–19; language and, 203. See also subjectivity subjectivity, 34; contingency and, 89; history and, 92; shame and, 86, 92; speech and, 86–89 subordination, 21, 57, 69, 110, 231 index

309

su√ering, 93

transcendence, 10, 25–26, 50, 64, 92–

survival, in language, 198

100, 121–22, 125, 138, 140, 158, 164,

survivor, 88. See also victim; witness

231, 235, 252, 278, 293; transcendent beyond, 52–53

technology, 1–2, 16–17, 29, 120, 224– 25, 283 temporality, 11, 59, 64, 93, 97–8, 110, 113–15, 139, 156–57, 213–14, 266 testimony: ethics and, 198–99; language and, 81–84, 88–90. See also au-

transparency, 81–82, 117. See also knowledge; language Trauerspielbuch (Benjamin), 291 Trial, The (Kafka), 259–60 tumultus, 285–87 Two Treatises of Government (Locke), 272

thenticity thanatology, 15

United States, 11, 30, 71, 187

‘‘Theses on the Philosophy of History’’ (Benjamin), 20, 76, 195 thought, 16, 80, 149, 174, 180–86, 235–

value, 109, 117–18, 125, 175, 183–85, 215, 237, 241, 273–74

36; ancient, 2; Greek, 6; history of,

values, 117, 226, 268

147; manifestation and, 265; meta-

Versuchspersonen, 10–12, 270–73

physics and, 23, 36, 44; philosophy

victim, 10–3, 22, 31–34, 75–76, 82, 166,

and, 49, 192–93; political, 76, 107–

222, 230–32, 254, 266–67, 271, 278

8, 110–23, 137; Western, 111–19, 123

violence: justice and, 160; law and, 294;

threshold, 4, 31, 38; of human and inhuman, 233, 267, 277–78; of inside and outside, 60–61, 78, 194–95, 250,

as mythical, 136–42; pure, 290–91, 294; state of exception and, 294–96 voice, 23, 45, 74–75, 90, 175, 183–85,

290; language and, 43; of law and

192–93, 222–45. See also language;

fact, 250–56; of legal and nonlegal,

speech

9, 288–89; of life and death, 10, 22,

‘‘Vor dem Gesetz’’ (Kafka), 168–69

26, 31–36, 200–201, 267; modernity and, 2, 77; of nature and culture, 65–

wealth. See excess

66, 80, 262–64; in politics, 8, 16–17,

West: philosophical tradition of, 15;

36; sovereignty and, 63–64; violence

political life in, 37–38; politics of,

and law and, 159, 237–40

294

Timaeus (Plato), 145, 181–83 torture, 34, 263 totalitarianism, 37, 108, 113, 161, 271– 72, 285 totality, 5, 26, 39–41, 68, 86, 99 Totem and Taboo (Freud), 138

310

index

witness, 80–83; as author, 89–90. See also narrative; representation; testimony Wittgenstein, Ludwig, 23, 32. See also language writing: on Auschwitz, 90–91; history

and, 75–76, 192–93; language and, 176–80; law and, 259–60; silence and, 223–24, 237–41; world of, 258. See also language; speech

Zˇ iˇzek, Slavoj, 74, 84–85, 104; on Hegel and Schmitt, 282; on Holocaust, 74– 75, 95 zo¯e, 37, 77, 252, 262–63. See also bare life; life

index

311

Slightly di√erent versions of a number of these essays have previously been published elsewhere, and I am grateful to the original publishers for generously granting permission to reprint them here. My essays, ‘‘Giorgio Agamben and the Politics of the Living Dead’’ and ‘‘The Exemplary Exception: Philosophical and Political Decisions in Giorgio Agamben’s Homo Sacer,’’ initially appeared in Diacritics 30, no. 4 (winter 2002) and Radical Philosophy 119 (May/June 2003), respectively. Peter Fitzpatrick’s essay ‘‘Bare Sovereignty: Homo Sacer and the Insistence of Law’’ initially appeared in Theory and Event 5, no. 2 (2001). Catherine Mills’s essay ‘‘Linguistic Survival and Ethicality: Biopolitics, Subjectivation, and Testimony in Remnants of Auschwitz’’ incorporates material previously published in Catherine Mills, ‘‘An Ethics of Bare Life: Agamben on Witnessing,’’ Borderlands e-journal 2, no. 1. A German version of Rainer Maria Kiesow’s essay ‘‘Law and Life’’ appeared as ‘‘Leben und Recht’’ in Rechtsgeschichte 1 (Frankfurt: Klostermann, 2002). And a German version of Erik Vogt’s essay ‘‘S/Citing the Camp’’ appeared as ‘‘Was bleibt, stiften noch immer die Dichter: Agamben und der poetische Rest’’ in Erik Vogt, Zugänge zur politischen Ästhetik (Vienna: Turia+Kant, 2003).

Library of Congress Cataloging-in-Publication Data Politics, metaphysics, and death : essays on Giorgio Agamben’s Homo sacer / edited by Andrew Norris. p. cm. Includes bibliographical references and index. isbn 0-8223-3525-5 (cloth : alk. paper)—isbn 0-8223-3537-9 (pbk. : alk. paper) 1. Political science—Philosophy. 2. Agamben, Giorgio, 1942– 3. Biopolitics. 4. Metaphysics. I. Norris, Andrew ja71.p6424 2005 320%.01—dc22

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