States don’t really mind their citizens dying (provided they don’t all do it at once): they just don’t like anyone else to kill them

Malcolm Bull

The Italian philosopher Giorgio Agamben does not want his fingerprints taken and, unlike like most European critics of the evil empire, he has been willing to forego an academic visit to the United States in order to prevent it happening. What is at stake, he explains, is the ‘new “normal” bio-political relationship between citizens and the state’. Fingerprinting makes ‘the most private and incommunicable aspect of subjectivity … the body’s biological life’ part of the system of state control. And though it is hard to see how fingerprints, as opposed to the monstrous Other in a passport photo, might constitute an aspect of anyone’s subjectivity, Agamben’s unwillingness to share this information with the American state is still a significant refusal.

For Agamben, fingerprinting is not just a matter of civil liberties: it is symptomatic of an alarming shift in political geography. We have moved from Athens to Auschwitz: the West’s political model is now the concentration camp rather than the city state; we are no longer citizens but detainees, distinguishable from the inmates of Guantanamo not by any difference in legal status, but only by the fact that we have not yet had the misfortune to be incarcerated – or unexpectedly executed by a missile from an unmanned aircraft. Seemingly designed for the current situation, Agamben’s work is one of the few instances of contraflow at a time when European opposition to American imperialism is sustained chiefly through such US exports as Chomsky, Gore Vidal and Michael Moore. But although his recent examples come from the war on terror, the political development they represent is not, according to Agamben, peculiar to the United States under the Bush presidency. It is part of a wider change in governance in which the rule of law is routinely displaced by the state of exception, or emergency, and people are increasingly subject to extra-judicial state violence.

Agamben’s theory, as developed in the first three books of the projected four-volume Homo Sacer series,[*] starts out as an elaboration of Carl Schmitt’s provocative account of sovereignty in his Political Theology of 1922. In opposition to legal theorists such as Hans Kelsen, for whom sovereignty could be ‘nothing else but the quality of a legal order’, Schmitt proclaimed the sovereign to be ‘he who decides the exception’. It is all very well having a legal system, but sovereignty cannot finally repose in the law if someone is able to decide that the law is no longer in force. So the sovereign is not the legislative body, or the laws it creates, but whoever determines that the situation is sufficiently normal for those laws to be applicable, or whether an emergency has arisen that demands they be suspended for a while.

This idea is not immediately compelling, for in most situations, signalling the cessation of an activity doesn’t give you much control over it. Saying ‘Why don’t we break for lunch?’ doesn’t necessarily make you chairman of the meeting, and fixing the dates for next year’s bank holidays certainly doesn’t make you governor of the Bank of England. But, on the other hand, isn’t every intermission a step into the abyss? If all days were bank holidays, the banks would never reopen; you might not come back from lunch, ever. What makes us reasonably confident that our adjournments will not be cessations is the expectation that the suspended activity will eventually be restarted, if not by ourselves then by others engaged in practices that intersect with our own. For this to be the case, the gap that has opened up needs to be located within a densely woven web of related social practices. Following Schmitt, Agamben assumes that the rule of law is not like that. While it may be possible to fill in holes in the law through the application of general legal principles, the applicability of law itself is not a matter of jurisprudence. Although the law may make provision for exceptions of various kinds, whether something is an exception to the law as a whole can be decided only by the sovereign.

However, there is an ambiguity here, for if the sovereign is the one who decides the exception, then there must either be no sovereign before that decision is made (a sovereignless norm) or a sovereign before the decision whose sovereignty was established some other way. Schmitt dismisses the former on the basis that no norm is applicable to chaos, and that the sovereign is needed as the guarantor of the normality that allows norms to be applicable. Sovereignty, then, must originally come not from deciding the exception but from deciding the norm. Yet it does not follow that this sovereign gets to decide the exception as well: stop and start are not always controlled by the same switch.

Put in political terms, this means that constituent power, which establishes government, is not necessarily the equivalent of sovereignty. In Agamben’s work the difference between the two is elided. The transition from the state of nature to the state of law effected by constituent power, and the transition from the state of law to the state of exception decided by the sovereign, are described by Agamben as ‘nothing but two sides of a single topological process’ in which, rather like a Möbius strip, what was presupposed as external (the state of nature) reappears on the inside (as the state of exception). In the state of exception, the state of nature and the state of law are no longer distinct but inside one another, and when (as Agamben believes is increasingly the case) the state of exception becomes the rule, the two ‘coincide in absolute indistinction’.

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[*] State of Exception is the second in the series. The first, Homo Sacer: Sovereign Power and Bare Life, was published in English by Stanford in 1998. The third, Remnants of Auschwitz: The Witness and the Archive, was first published in English by Zone Books in 1999 and reissued by them in paperback in 2002.

[†] It isn’t surprising that Agamben, as the editor of Einaudi’s edition of the works of Walter Benjamin, is struck by the etymological link between iustitium and solstitium, which resonates with Benjamin’s concern with standstills. He also identifies the state of exception with the ‘supplement’ in deconstruction, and with Alain Badiou’s definition of the event as ‘an element of a situation such that its membership in the situation is undecidable from the perspective of the situation’.