Prospectus

Homo Sacer I opened with a vision of the next iteration of the biopolitical paradigm left open by Foucault. An iteration that would critically integrate the jurist tradition, the historical and philogical methods of other traditions, into a central investigation.

Left to its own devices, Homo Sacer I presented questions and gaps even as it ardently pushed the one answer that the problem was the reduction to bare life.

It was a prolegomena for a larger project.

Although Homo Sacer I would be followed by Homo Sacer III in 1998, II.1 would follow in 2003, colored in part by the Patriot Act and its aftereffects that were at the forefront of political consciousness in those years.

The question for us though is this study proves itself not only a worthy contribution to the project of Homo Sacer but if it renders that project viable.

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Homo Sacer II.1: The State of Exception

Carl Schmitt was the first to link the state of exception to sovereignty as such in 1922, yet there has been no genuine juridical effort since to extend this study.

The state of exception is a difficult one to define as it is often wrapped up in extraordinary circumstances as the totalitarian entities of the Second World War (or in Agamben's view the United States following 9/11).

Despite its extraordinary status it is also the originary structure of all sovereign as it has the power to dismiss or depose any existing constituted order hence the problems writes such as Herbert Tingsten, Carl Friedrich, and Clinton Rossiter faced to try to ground the constitutionality of clearly extraconstituional powers.

Some nations such as France and Germany explicitly named a state of exception which could suspend the constitution but the constitutions of United States, Italy, and other nations do not. There is a de facto development and progression of the state of exception apart from any attempt to normatize or regulate it under law.

Does necessity create its own law or does it recognize no law? How can the state of exception be bound to law?

Some theorists such as Santi Romano make a modern gesture which internalizes the state of exception inside the juridical order as an ultiamte ground but thus renders the two in paradoxical relation to one another.

There is a gap between the norm of the law "what it ought to be" and the application of the law "what the law will have it be" (i.e. the decision). Schmitt argues that the norm and the decision is what can still tie the state of exception to a juridical order.

To explore this more, one must first understand the distinction between a commissarial dictatorship that seeks to uphold the constitution through extra-constitutional means and a sovereign dictatorship which operates independently of constitutional or judicial law.

The commissarial dictatorship shows that the application of law and the norm of law are independent of each other through how it uses illegal means to uphold the law. The norm may be "in force" even if the dictatorship does not apply it but rather suspends it.

By contrast, the sovereign dictatorship can apply an ad hoc law which is not formally in force because in a sense it is ratified as matters unfold.

The state of exception is a zone where power is separated from the "force of law" (a concept which since the French Revolution desigantes the law as an untouchable, uninterpretable entity that may strike as the sovereign sees fit). The norm can be technically "in force" but yet practically unenforced. At the same time, seemingly illegal activities gain force and legal grounding. A simple example of this is the suspension of habeas corpus and the subsequent arrest of individuals without charges.

In both the state apparatus of a commissarial dictatorship or the revolutionary body of a sovereign dictatorship, there is a shared inclination to claim the law as their own regardless of what the law previously had said. Just as in hermeneutics, the question emerges how legal judgments can be produced in determinate, tangible ways when the conceptual framework shifts and grows foggy in the state of exception.

It is with this in mind that Agamben rehearses a decades long debate between Walter Benjamin and Carl Schmitt on the nature of the state of exception, the main point of contention being that Benjamin saw violence (Gewalt) as always being outside the law, while Schmitt tried to tie it to the law through the inclusive exclusion of the sovereign decision. The state of exception creates an inclusion for those extralegal powers which were formerly excluded. Violence falls under this category as an extreme decision of the sovereign.

Benjamin's response was that to make a sovereign decision, the sovereign must exclude that decision from the juridical order. This makes the effective decision something that is undecidable from the perspective of law because the law has been suspended and can thus make no decisions at all. In point of fact, this turns into a sovereign indecision that divides power from its exercise, unlike Schmitt who believes power is always united with its exercise.

Benjamin ties this separation to the distinction that Schmitt had previously made between norm and force of law with the commissarial dictatorship. The sovereign who should have decided on the exception has created a rupture between power and its exercise that cannot be mended, as there is no path back to normalcy.

Most concretely, this debate occurred during the 1930s and 1940s a time when National Socialism had proclaimed a state of exception from 1933 with a seeming indefinite end. Schmitt, whose theory rested upon the temporary nature of the state of exception, was backed into an untenable position because as time progresses what was previously a norm becomes clouded and forgotten, and a new normalcy arises via force of law.

As Benjamin argues, the state of exception has itself become the rule. All is reduced to pure, revolutionary violence.

Pure violence is a technical term that Benjamin uses, referring as to pure langauge in other contexts. The purity of violence or language for Benjamin is not due to its internal composition or its intrinsic properties but rather how it relates to means. Violence can be enacted towards certain ends. Pure violence has no end outside of itself. It mediates itself through its manifestation.

Agamben uses this to decipher the debate between Benjamin and Scholem on Kafka's "The Trial" which he had earlier raised in the previous volume. By pairing these topics together, Agamben contends that Benjamin sought to create a new kind of law as mere life "as it is lived".

Law that exists only to be studied but in no sense to be practicied or considered binding. Law untethered from all sovereignty. Law become inoperative.

We can truly only discover what this new use of the law will look like after it has been deactivated and no longer chokes us. Law can become play, and the world will be freed from the juridical.

Alongside this thread, Agamebn also considers the Roman antecedents of the state of exception known in Latin as iustitium. This excursus begins in a philological argument in conversation with Mommsen, Nissen, and Middel who had defined this phenomenon of iustitium as a court holiday.

When the very viabiltiy of Rome was under threat, the Senate could and did issue a senatus consultum ultimum which call upon consuls and in some rare cases all citizens, to take whatever measures were necessary to ensure the safety of Rome. It was a declaration of emergency (tumultum) and quite literally instituted a standstill of the law: ius + stitium.

Interestingly enough, the ancient sources themselves were confused on the juridical nature of the iustitium, particularly the question how a command of law can take effect if the law itself has been susepended.

Like the modern state of exception, the iustitium deactivated all legal determinations but was so essential to the juridical order that it is always grounded as the potentiality of what remains unthinkable from a legal perspective.

Following the fall of the Roman Republic though, iustitium gained a new meaning as public mourning. Scholars have grappled with why and how this came about, with August Fraschetti coming closest in tying the coincidence of tumultuous riots with the death of the sovereign and the subsequent mourning.

By the death of Augustus, the sovereign who had incorporated the law also perished and a state of exception automatically emerged from this chaos. In the Roman Principiate, there was a new principle of sovereignty. As Diotogenes put it, Augustus and his successors were the "living law" (βασιλεύς νόμος ἔμψυχος).

The living law creates a new originary intersection between the state of exception (the end of the Roman Republic) and the inside of the law (the new order of the Roman Principiate) which grounds the modern theory of sovereignty.

If the sovereign is the living nomos, his death creates societal anomie. Thus the imperial apotheosis of ancient Rome was an attempt to channel the lawlessness of this internecine period into a formalized iustitium that could then be controlled and pass into the accession of a successor.

Agamben ties this to two other phenomena: (1) those feasts across societies which suspend rules and customs and everyone changes roles as well as (2) the rituals surrounding banishment and abandonment by the law. In all three we see a maximum tension between subjection to the law and unbridled freedom in lawless anomie.

Law thus has an essential ambiguity between an attempt to establish norms over all life and subject life to those norms but also its tendency to crumble toward entropy, toward the state of exception or the sovereign as living law. These two polarizing forces are operative for law throughout all history.

These can be tied to two other Roman concepts: auctoritas and potestas. When the Senate issued a iustitium it did so not out of magisterial imperium or potestas but out of auctoritas.

Auctoritas emerged first in familial law when a patriarch of a household would confer legal validity or standing on another's actions, such as their child. The father would authorize an act that had already happened. It thus depends on some external element which it then certifies. This is not a guarantee in the modern sense but a direct augmentation of the thing itself.

The most proper prerogative of the Roman Senate was auctoritas which would augment the laws produced by magistrates or other bodies. It ratified such things.

If a legal institution's true character is defined by the extremity that can produce its exception, then its becomes clear that auctoritas is an ultimate power that can suspend law or potestas or reactivate it as it chooses, as we see in interregnum periods when a consul had died.

Augustus' revolutionary change was to appropriate auctoritas to himself, referring to himself as the optimi status auctor. Thus the Roman Principiate radicalized auctoritas to endow it within a single body of the sovereign Caesar who thus augments all Roman political life.

It is in this light that we should re-read Kantorowicz and see this living law of sovereign as a zone of distinction between the public body of the sovereign and the private body of the physical person. The living law is a biopolitical entity which cannot be cleanly divided into two bodies. The two bodies of the sovereign may make sense for magistrates when the physical death of a magistrate instituted a question of the succession of the body of the office, but for a Caesar (or a Fuhrer as Weber, Tripel, and De Francisci would note), the physical death of the man would dissolve all law. Law and life are intricately bound.

For the ancient and medieval political systems, there was an uneasy and yet functional dialectic between potestas as a normative, juridical system of law and the auctoritas as a metajuridical anomie. The state of exception binds these two by rendering it impossible to decide between the two of them through a fiction that anomie is related to the juridical order.

However, as we see in the twentieth century, when auctoritas and potestas converge ina single person, the state of exception becomes the rule, and the state becomes a "killing machine", a machine with an empty center and yet highly effective mobilization and deployment as it takes over the global order.

To escape this totalizing destruction, we must question the binding of life and law. Life is not a given. Anomie is not given either, though state of nature rhetoric would have us believes so. If this is true, then life may not neessarily need to subjugated to law or implicated in it through the state of exception.

Bare life is a product of this killing machine. It cannot pre-exist it. Law has no court in nature. We are simply unable to access or foresee what life could be outside of this fiction we have constructed for ourselves over millennia. We must disenchant ourselves of this fiction, not to go back, but to go forward.

By doing so we can purify politics to redeem it as a realm of human action, uncorrupted by law, and no longer limited to constituent power.

We will then have a pure law which does not bind, does not command, does not cajole us, nor prohibit. It would merely speak itself in its purity without any relation to ends.

In Review

Agamben shines most brightly when he attends his philological eye to the problem at hand. To a semi-informed reader, his analysis of iustitium brought into play with tumultum, auctoritas, and potestas seems remarkably cogent and the most astute observations of this study.

However the conclusions he chooses to draw at the end of this volume, vague glimmers that they are, serve more to undermine the credibility of the author's philosophical judgment than if he had avoided the pretense of gesture to bigger questions altogether.

This is of course Agamben's nebulous remarks at the close of chapters four and six around the deactivation of law as the curative objective uncovered by this investigation. On its own, these claims could be construed as performative ways to wrap up a more rigorous philosophical analysis. Many authors do struggle with endings, and very few of the greatest philosophical works have memorable end-sections.

Yet these gestures here will become recurrent themes throughout Homo Sacer II under the theme of inoperativity which gets picked up again in Homo Sacer IV and is rendered the ultimate theme of the entire project.

As will become more pronounced as the project continues, Agamben is ardently anti-teleological and often deems end goals, objectives, and effects as afflictions we need to do away with. Put more broadly, any form of ought seems to immediately be deemed oppression. (This does make sense when taking into consideration Agamben is fundamentally a Spinozist.)

This does seem to be the conviction undergirding his interpretation of Benjamin who he takes to be saying that all law should deactivated and rendered as play.

I have not read Benjamin sufficiently to adjudicate on this interpretation, but this claim presented as a universal societal-ethical objective is one of those statements which make you question the lucidity of the author.

Has this notion of "law" become so inebriated with the abstractions laden upon it, that it is now merely a fanciful toy which can readily be discarded like a coefficient from a mathematical equation, when it is no longer deemed a good fit?

It is not clear which presents the greater absurdity, that law should be abolished altogether so that society can finally get on living, or that law when abolished would be a most excellent object to study and "play with", as if that is some deeply coveted task we are unable to do right now, until all rules are gone.

It is strange that one can spend so long in research of the juridical tradition and its pedantic gymnastics to not see why such a thing as law emerged in the first place. For someone so historically engaged as Agamben, this is puzzling. Perhaps it is because of the tiresome antics of legal scholars that Agamben simply sees the law as nothing more than a game without stakes. A game that got out of hand, and perhaps we're taking it too seriously.

Unfortunately, the dancing around the concept of law outside its terminological uses by various interlocutors, makes it hard to see what Agamben is really trying to get at in the sense of original philosophical scholarship.

He does present his own claims and critiques to be sure, but they are employed around single pairs of terms or dichotomies in a way that can be traced as a colorful thread making its way around a woven tapestry but lacks systematicity and cohesion outside very fine-tuned, precise debates visited in each chapters.

This is something Agamben struggles to voice across his writings, even outside the Homo Sacer project. How these very detailed analyses, terminological discussions, or neologisms are integrated all the way up to a big picture.

His attempts to do so render claims like we have here where the state of exception's tendency to cause law and lawlessness to converge in utter indistiction somehow necessitates that we deactivate law altogether.

One could poke apart the logical leaps necessary to try to render such a chain of reasoning, but I think it more interesting to consider the structural assumptions that enframe and constrain this narrative.

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Let us revisit the progression of the state of exception narrative from the top.

There is a legal (i.e. juridical) order. Laws articulate norms that those subjugated to the law are required to follow. The application of the law is an attempt to enforce those norms. A crisis emerges that leads to the suspension of the legal order by an entity known as the sovereign. The sovereign may be a figure who seeks to restore the law when the crisis is over like the Roman dictator Cincinnatus, or may seek to disregard the prior law entirely and indefinitely as in the succession of French Revolutionary governments.

When the law is suspended, the state of exception begins. During the state of exception, the laws becomes indistinct in two ways. First, the law is suspended so that it can float out there as a prohibition but is ineffective as it is unenforceable. No one is held accountable to a suspended law. Second, while the law is suspended it remains "in force" in the sense that the sovereign can simply create law in a "what I say goes" sense.

If one single individual takes up the "what I say goes" mantle of sovereignty, it is very unlikely if not impossible to return to the previous legal order. As time goes on, the state of exception that once was temporary is now permanent. Laws newly waved into existence take effect and become the norm. What was previously the enforced norm becomes forgotten or discarded over time. This muddies up what is the norm and what is not, so law and life become indistinguishable. And if the two become indistinguishable while one body exists as the living law, then the killing machine begins.

This is why if the law is to be suspended it must also be severed from sovereignty so that it may not normalize totalitarian regimes. In fact, this deactivation of law will open up new avenues for the possibility of law an artifact of study as well as for the freedom of life.

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The largest and probably most unexcusable dimension of this narrative is the near exhaustive amphiboly surrounding the usage of the term "law". Like "life" which enters this volume strangely only as a cursory side-note, "law" is an incredibly general term which is never granted much if any distinctions into more precise terms.

It is a well-known trick of the Sophists to use vague, heavily loaded terms to twist syllogisms into performing remarkable logical feats including refuting the principle of non-contradiction. For the uncritical listener, it can be an effective rhetorical technique to persuade your audience of just about anything. As Gorgias remarked, it is an incredible tool of power.

Plato and Aristotle took up a different method. If a term seems to present itself in different ways that may even contradict each other, it is important to divide such a term "according to the joints" into its sub-genera or species. The method of διαίρεσις. By identifying proper distinctions, and doing so judiciously, one could build a better conceptual framework for understanding the world.

Agamben has an unfortunate tendency to proclaim paradox when considering two different examples of incredibly broad terms like "life" and "law". It is a surprising lack of analytic rigor given his philogical bent. This is made all the more ironic given his discursus on Benveniste where Agamben discusses how it becomes impossible to render a legal judgment when a rule lacks concrete specificity that can directly designate some tangible reality. The state of exception renders all rules too vague and over-generalized for the law to be applicable.

But anyway let us take him up on the Roman example.

So we do know iustitium suspends the law. But what is the law in Roman eyes?

There is of course natural law (ius naturale), law of the nations (ius gentium), civil law (ius civile), public and private law (ius publicum privatumque), specialized law (ius singulare), and even unwritten law such as ancestral custom (mos maiorum).

Aside from these categories, we also have the legal artifacts that are the vehicles of law. For the Romans this includes leges, plebiscita, constitutiones pricnipum, edicta, and as we saw the senatus consulta.

We are provided very little description or analysis of the structure of Roman legislative and judicial bodies and authorities, how law was enforced, and other salient political processes in the cases of the Republic and Principiate respectively.

So if we are to speak of the iustitium as a pre-modern state of exception that suspends the law, then we must understand with a great deal of care and precision how the legal and judiciary apparatus of Roman times functioned if we are seeking to make this antecedent paradigmmatic of the modern experience. The similarities and differences must be accounted for to construct such a broad parallel. What exactly was being suspended in Rome? How is that relevant considering the vast structural differences between ancient and modern forms of government (which is not alluded to at all)?

And there is some groundwork there. Section 1.6 provides a delightfully detailed list of states of exception across modern nation states including Britain, the United States, Germany, Italy, etc. These are good evidentiary foundations that are strangely left abandoned after he ends this section.

So while his usage of "law" lacks analytic rigor, his comparison of Rome with the modern state of exception also lacks historical rigor.

Which is strange given that he advises us to not confuse the ancient notion of auctoritas with modern notions of the guarantee (even though he does use the verb guarantee in relation to auctoritas later in chapter 6). He makes slight asides to help distinguish slight nuances of terminology between ancient and modern concepts but yet does little to articulate what forms and kinds of phenomena and concepts are indeed historically transferrable.

One moment where this becomes pre-eminently confused is in the discussion of sovereign as living law and how the death of the Roman emperor entailed the death of the law and the triggering of the state of exception. The two bodies of political and personal become indistinct. When the two become indistinct in a single person, the law becomes a killing machine. This is the existential failing of Hitlerism, drawing from the Roman example.

We can probably safely say that when Hitler died as the living law of the Fuhrer, this did indeed trigger a state of exception. Perhaps we can say that since potestas and auctoritas co-inhered in the one person Adolf, this necessitated the beginnings of the killing machine.

But does it need to co-inhere in one single physical person for this killing machine to commence? Is oligarchy exempt from this extreme form of biopolitical dystopianism? Should we disavow the multitudinous ranges of examples where kings performed judiciary functions? There are some points where Agamben could be read to mean, when they co-inhere in one body perhaps like with the French Reign of Terror, but at other junctures he emphasizes it is a single physical body as this is a biopolitical entity.

(The gesture to biopolitics feels unnecessarily forced. His statements remain unconvincing that there is anything distinctly biological about sovereignty as living law that was not already said in Kantorowicz. Conversely, this also seems to betray the meaning of biopolitics on three counts. First, biopolitics is concerned with biological life of entire populations not single individuals, Foucault identified discipline as the mechanism over individual bodies. Second, biopolitics is concerned with particular technologies and mechanisms to "make live and let die". How is the sovereign as living law a biopolitical entity in the sense that its life and body are subjugated to technologies of power? Third, biopolitics considers the means by which bodies are controlled and in a sense made victims and objects. Is Agamben saying that Caesar and Hitler are merely pitiable victims of biopower? What does it even mean to be an originary structure of biopolitics, let alone the sovereign as living law?)

So if the extremity of the state of exception is realized in one individual person, is Agamben saying that this was a deeply troubling development for Rome when it became the Principiate? Is the Roman Empire structurally equivalent to National Socialist Germany as a "killing machine"? This does not seem to his primary intent as Agamben presents the death of Augustus and the imperial apotheosis rather neutrally.

It also does not account for the radically distinct geopolitical, jurisprudential, biopolitical, philosophical, and differences in forms of government between ancient Rome in its various stages and National Socialist Germany.

This already tenuous analogy seems to be reduced to farce when Agamben then gestures to the Patriot Act of 2001 and the War on Terror as an alarming progression of the globalized permanent state of exception engineered by National Socialist Germany. While the dated tone may be excused given the year of publication, but to argue the United States of neoconservatism is a more further evolved killing machine than Hitler's Germany is an awkward display.

Beyond that and in closing, another issue is the stunted and rather underdeveloped sense of the state of exception that Agamben presents, all the more surprising given his extensive reading of both Carl Schmitt and Walter Benjamin on the subject, especially when he attempts to tie it to his dream of the abolition of law's sovereignty.

Agamben only discusses the progression of the state of exception as a progression into chaos and indistinction between law and force.

Although he describes Schmitt's commissarial dictatorship, there is very little attention paid to those states of exception which were then deactivated and there was a restoration of the legal order. Abraham Lincoln suspended habeas corpus but the United States has since reinstated it. The British government deactivated emergency war powers. Cincinnatus. None of these moments of deactivation are considered or analyzed.

And perhaps Agamben does so because as he overtly states, he believes a legal system is most expressly defined by moments of extremity.

This is a more general mode of thought that can be found in Benjamin and Foucault which seems dubious and questionable at best. A larger argument is to be made, but suffice it to say that it is a strange way of analyzing aggregate data if out of ten thousand pretty good days, it would bethe absolute worst day of them all that would define the whole dataset and make it a pretty bad life, just on account of one bad day.

An alternative issue can be taken up with Agamben's seemingly overly reified sense of the law. The entire first chapter is a circuitous treatment on this question, the fact that it is very hard to regulate something that is exceptional or extraordinary. This is why the law cannot quite circumscribe the state of exception.

If we can even describe the law in such a broad sense, Agamben seems to miss the historical de facto truth, that regardless of the law or its violations, there come times where it is in force and applicable, but people just move on. It surely was illegal for Henry Bolingbroke to depose and kill Richard II and become Henry IV with a new Plantagenet bloodline, but it happened and became the norm as would the Tudor accession following the War of the Roses? Did the cavalier instigations of consuls like Marius, Sulla, and Julius Caesar instigate a total suspension of the law and initiate an unmitigated state of exception?

The law is not a unitary, mathematical apparatus that governs the cosmos and causes all to fracture when it breaks. It is an inchoate, contradictory amalgamation that clerks and lawyers and judges scurry around trying to make work from a functional standpoint.

It is also not a mere game that we can simply shut off and pass up as a luxury, as if it were a matter of converting normative astrology to merely studiable astronomy.

It is deeply embedded in our contemporary societies in ways that can certainly be more bad than good, but if entirely ripped out would leave gaping chasms from a logistical point of view for how a society gets run. Agamben's opinioning on this topic must be treated ironically at best unless there is some clever articulation that has not yet been formulated.

For it is not clear how the deactivation of the law would not simply reassert a new state of exception. How the deactivation of the law is distinct from its suspension. Why is one the liberation of all life while the other creates the Holocaust killing machine?

How can we say the abolition of sovereignty is the abolition of all biopolitics?

And what is bare life (ζωή) and how does it tie to the state of exception? The conclusion to the previous volume explains that "bare life is certainly as indeterminate and impenetrable as haplos Being" (149) and yet it is at times shown to be an innocent, anomic, denormalized state of pre-political life, freed from suboordination to law and sovereignty. And yet at other times it is the extreme point of reduction for those who are comatose, for those who live in the camps. It is in the conclusion to this volume that Agamben writes, "Bare life is a product of the machine and not something that preexists it" (241).

Will we escape this amphiboly of bare life, not one step progressed since the last concluded? We shall see.