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

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’.

However, whereas in Homo Sacer Agamben follows Schmitt in arguing that the exception remains accessible to jurisprudence ‘because the norm as well as the decision remain within the framework of the juristic’, in this book he argues that the state of exception is not a state of law at all, but a legal void within the juridical order. One reason for the change is that the historical model has shifted. According to Schmitt, the sovereign decides not only whether there is an emergency but also what to do about it. This ties the state of exception to the long tradition of temporary dictatorship whose classical model was the Roman republic. In times of danger, the senate could ask the consuls to appoint a dictator who had unlimited power to deal with the immediate crisis and was expected to resign as soon as it had passed (the tribunes could force him to do so if he lingered). Agamben’s historical models are two other provisions of the Roman republic: the senatus consultum ultimum, the final decree of the senate, which gave unlimited power to the consuls to suppress domestic disorder, and the iustitium, originally a suspension of legal business (rather than, as it later became, a period of public mourning). In his account, they are contrasted with the constitutional dictatorship, and linked with each other, on the basis that the adjective ultimus signals the furthest limit of the juridical order, beyond which lies the lawless iustitium.

This is a bit misleading, for the adjective ultimus is only used once in the classical sources to describe decrees of this kind, and then to indicate that, in temporal sequence, it was the last decree on the matter, not, as Agamben implies, the final limit of the rule of law. As for the iustitium, it is not clear how often this was proclaimed following a senatus consultum, whereas, as Livy attests, it was routinely used by dictators from Cincinnatus onwards. And there is little to suggest the iustitium was a total suspension of law, not merely legal process; its association with anomic role reversals comes much later, when it had metamorphosed into a period of public mourning.

Agamben’s theoretical agenda may have led him to invest rather too much in these obscure bits of Roman constitutional history. Although he takes his examples and terminology from his recondite reading in legal history, his conceptualisation of the state of exception owes more to 20th-century philosophy – to Benjamin, Derrida and Badiou – than to Roman law.† And it is on the basis of these affinities, rather than its historical importance, that Agamben considers the state of exception so revealing of the norm. As he says (quoting Schmitt quoting Kierkegaard), ‘endless talk about the general becomes boring,’ whereas ‘the exception explains the general and itself.’

This concern with what is beyond the law points to a wider affinity. Both Badiou and Agamben have written books on St Paul and represent what might be called a neo-orthodox turn in the recent history of the European left. Rather in the way that theological modernism was perceived to be discredited by the ease with which it lent itself to German militarisation in the First World War, so now identity politics and multiculturalism appear to be the ideological buttress for the new imperialism (‘We must invade Afghanistan in order to establish rights for women’). Against the discredited emphasis on the divine presence in history, progressive revelation, and human perfectibility, Karl Barth’s commentary on Paul’s Epistle to the Romans emphasised the otherness and absolute sovereignty of God, the fallen nature of humanity, and the importance of decisions precipitated by an encounter with divine revelation. For Agamben, the state of exception offers similar possibilities, for in it we finally experience the true awfulness of sovereignty and our abjection before it.

In religion, neo-orthodoxy led nowhere. It distanced theology from wider intellectual life, but lacked the mass appeal of fundamentalism. Theories and theologies of crisis tend to have a limited currency, in that one society’s emergency is often another’s normality, and, by definition, normality is always the more common of the two. States of emergency occur most frequently in states with newly minted liberal constitutions. If the constitution already gives the sovereign plenipotentiary powers there is no need to suspend it, and over time officially declared states of emergency may become less common as governments absorb their emergency powers within the constitutional order. Agamben refers to this process as the state of exception becoming the rule, but gives no thought to the question of when such a situation ceases to be exceptional and simply become the norm to be suspended by a future exception.

The issue is of immediate relevance. The ‘new normal’ is already losing much of its novelty, even as 11 September 2001 fades into history. Unlike insurrection or invasion, terrorism tends to be sporadic and ineffectual, and is usually designed to adjust existing arrangements rather than take power as such. But governments, whose actuaries can determine how many of us will be killed every year in a variety of unpredictable ways, and how many will be saved by a variety of possible expedients, want none of us at all to be killed, or even hurt, by terrorists. A pinch of anthrax working its way through the postal system is perceived as a threat of a different order from the MRSA bacteria sauntering down the hospital ward, even though it is the latter that will kill thousands. 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.

Although they may shuffle back and forth between norms and exceptions, sometimes reverting to an earlier norm, sometimes dragging the norm along to catch up with the exception, states always try to maintain a monopoly of violence. The exception itself makes little difference, for even under the law your vulnerability is truly terrifying. You are born into a world where the state can, with the acquiescence of your friends and neighbours, deprive you of your property, liberty, limbs, even your life. It is this sense that Agamben vividly conveys through the concept of the ‘biopolitical body’. But although he acknowledges that ‘the production of a biopolitical body is the original activity of sovereign power,’ he repeatedly claims that this development is somehow the result of the state of exception.

The argument turns on the difference between the two kinds of life represented by the Greek words zoe and bios. The former is ‘the simple fact of living common to all living beings (animals, men or gods)’, while the latter indicates ‘the form or way of life proper to an individual or group’. The assumption of classical political theory was, he claims (following Hannah Arendt), that zoe, or ‘bare life’, did not belong in the public realm but remained within the private sphere of the household. For this reason, ‘the entry of zoe into the sphere of the polis – the politicisation of bare life as such – constitutes the decisive event of modernity.’ Life as such becomes a principal object of ‘the projections and calculations of state power’, and, in the state of exception, zoe and bios finally coincide.

It might be possible to interpret this development in terms of the reduced importance of fixed social roles within the public sphere and the egalitarian reduction of politics to the life shared by all, irrespective of status, gender, or even species. But Agamben, who is hostile to all forms of sociological explanation, prefers to see it in terms of constitutional history. According to him, the introduction of habeas corpus in 1679 was the first indication that bare life had become the new political subject, and it was through the state of exception, deployed by governments since the French Revolution, that bare life has been brought into politics. The most telling example is the use of Article 48 of the Weimar constitution to create numerous states of exception in the 1920s, which prepared the way for the Nazis to suspend the fundamental rights specified in the article. Nazi biopolitics were then realised in the camps, which created the most meagre form of bare life, the so-called Muselmann – the hopeless prisoner who no longer cared whether he lived or died. Incapable of distinguishing between the cold and the ferocity of the SS, the Muselmann experienced ‘an absolute indistinction of fact and law, of life and juridical rule, and of nature and politics’, making him the archetypal inhabitant of ‘the space that is opened up when the state of exception becomes the rule’.

Agamben’s books offer many other examples of the socially dead: people in comas; the tick that lived for 18 years in a Rostock laboratory without stimulus or nourishment; the werewolf (in Marie de France’s Bisclavret) who loses the capacity to resume human form when someone steals his clothes. In most of these cases, there remains the possibility that zoe could return to bios: the tick is still potentially responsive to the smell of a passing mammal; the werewolf finally gets dressed in the king’s bedroom; the Muselmann sometimes survives, his very inhumanity proof that, as Primo Levi put it, ‘the human being is the one who can survive the human being.’ However, Agamben’s original model of bare life holds no such promise. The homo sacer was, according to archaic Roman custom, a criminal condemned not to a quasi-sacrificial judicial execution (which was explicitly forbidden) but to a ‘sacred’ outlaw status in which anyone could kill him without committing murder. In the state of exception, too, the sovereign may kill without due process and with impunity, so that ‘the sovereign and homo sacer present two symmetrical figures . . . the sovereign is the one with respect to whom all men are potentially homines sacri, and homo sacer is the one with respect to whom all men act as sovereigns.’

There are two principal sources for Agamben’s concern with violence and bare life (nuda vita). One is Simone Weil, who, in her essay on the Iliad, ‘L’Iliade ou le poème de la force’, memorably describes ‘un homme désarmé et nu’ pleading for his life at the point of Achilles’ weapon. The other is Benjamin’s assertion, in the ‘Critique of Violence’, that ‘mythical power is bloody power over mere life [über das blosse Leben] for its own sake.’ Fused together, they provide the perfect metaphor for the naked and humiliated prisoners of Abu Ghraib, and, perhaps less compellingly, for the indignities awaiting our fingers at US Immigration. But it remains wholly unclear why, in this regard, Agamben thinks extra-judicial state violence differs fundamentally from judicial state violence, on the one hand, and other forms of extra-judicial violence, on the other. Do an inmate of the camps, a prisoner on death row, and a hostage held by terrorists each represent a different form of life?

Although Agamben is a subtle and original expositor of the particular, the larger structure of his argument is synthetic, and frustratingly dependent on vague analogies. His attempt to articulate the relationship of norm and exception to Benjamin’s distinction between mythical (law-making) and divine (law-destroying) violence is particularly tortured. Benjamin makes his distinction on the basis that the former is the violence of the law, which brings guilt and retribution and a regime founded on bloodshed and sacrifice. For Benjamin, it is mythical violence that demands sacrifice, and holds power over bare life; whereas divine violence is non-sacrificial and expiatory. But Agamben switches things around by identifying bare life with the homo sacer, who is sacred and cannot be sacrificed. He therefore has some difficulty explaining exactly how sovereign violence differs from divine violence, eventually arguing that, although both are to be found in the zone of indistinction between violence and law, exception and norm, sovereign violence maintains the link between these terms, whereas divine violence dissolves it by showing violence to be the real content of law.

In fact, these distinctions are not coterminous, or even overlapping, but barely commensurable. Benjamin’s distinction between mythical and divine violence was inspired by Sorel’s division between political and proletarian general strikes: ‘The first of these undertakings is law-making but the second anarchistic,’ just as ‘mythical violence is law-making, [and] divine violence is law-destroying.’ Sorel rejected law-making violence, such as that of the Belgian general strike of 1893, which brought about a form of universal male suffrage, precisely because it achieved political results. But Benjamin, whose example of law-making violence is Apollo and Diana’s slaughter of Niobe’s children to establish the unlawfulness of her arrogance, erases the radical potential of mythical violence and transforms violence against bourgeois law into punishment for presumptuous mortals.

Agamben follows Benjamin here, losing any sense that mythical and divine violence are both potentially forms of revolution, as opposed to norm and exception, which are forms of state power. Instead, he is concerned solely with their relationship to the law, and because mythical violence is law-making, he turns to divine violence as the only possible alternative to the sovereign violence of the state of exception: mythical violence is dismissed as a means to an end, divine violence celebrated as a ‘means without end’. Sorel himself is never even mentioned, but it is his hostility to anything that couples violence and law that forms the limit of Agamben’s political imagination.

This distorts Agamben’s argument at both a historical and a theoretical level. Missing from his account of the state of exception is any real acknowledgment that, in its modern form, a primary function of the emergency has been to deal with strikes. In the United Kingdom, the first Emergency Powers Act was passed in 1920 and used the following year against the miners’ strike; a state of emergency (which lasted eight months) was declared to deal with the General Strike, and, most recently, during the Heath government, there were five states of emergency, all in response to strikes. The symmetry between the strike and the emergency is not just historical. In a strike, workers break their contracts with a view to renegotiating them, then resuming work. Like the state of exception, the strike is simultaneously within the law and outside it. Yet unlike exceptions to the law, exceptions to work can easily come about by accident, through the spread of wildcat strikes or absenteeism. A formal state of exception may result. Livy mentions an occasion when a iustitium was declared because people had given up going to work to participate in the Bacchanalia. (The 2 January Bank Holiday in Scotland is a more recent example.) Who then decides the exception? In Agamben’s work, the state of exception produces outlaws, but if there are enough outlaws there is effectively no law in any case.

Instances such as this, in which the government sanctions collective (in)action, are unusual. The state of exception is more often used to suppress industrial action: an attempt to turn law into violence in order to oppose the law-making violence of the strike. But Agamben gives little indication that the state of exception is usually only one side of a social confrontation, or that, rather than creating a void in the law, the exception is often made in an attempt to close a space opened up by someone else. According to Schmitt, ‘in the exception the power of real life breaks through the crust of mechanism that has become torpid by repetition.’ Yet it is not the state of exception itself that carries the power of real life so much as the crisis with which it attempts to deal, or the crisis that it provokes. The state of exception is, in itself, a purely formal device which allows ‘the state to exist even as the law recedes’, and provides a bridge across the abyss between two moments of law.

In this respect, the exception differs significantly from constituent power and the political general strike, both of which have the capacity to remake established legal and social frameworks. The ability to revise existing norms is, as Machiavelli first recognised, just as important for the survival of institutions as dictatorship, for while dictatorship only allows norms to be preserved, reformation enables them to be renewed. Dictatorship and renovation may both be precipitated by crisis, but whereas the former is to be deployed as sparingly as possible, the latter is to be encouraged, for institutions last longer if they retain the capacity to start over.

Agamben does not refer to this tradition of exception, but it has its own sacred history. In the Jewish law, jubilees were years when normal working activities ceased, and the socially dead were resuscitated – debtors given relief, slaves freed and the poor reunited with their property. Such practices provided the model for the first attempted general strike, William Benbow’s ‘Grand National Holiday’, so named because ‘a holiday signifies a holy day and ours is to be of holy days the most holy . . . established to establish plenty, to abolish want, to render all men equal.’ Unlike the state of exception, when all men become homines sacri, on the holy day, when ‘we shall legislate for all mankind’, all men are sovereign, and it is the body politic that becomes the defenceless homo sacer.