In recent years the Italian philosopher Giorgio Agamben has become one of the most vital and most discussed figures in academia.1 But as with other major figures such as Michel Foucault, Antonio Negri and Alain Badiou, Agamben’s name and influence have spread beyond the narrow confines of the academy. He has become increasingly well known particularly over the last decade and a half, mainly due to the interest in his Homo Sacer series of books published since the mid-1990s and still ongoing. This work, an enormously expansive investigation into the paradigms that underpin the Western idea of sovereignty, offers—in my opinion—a radical and fresh, if flawed, critique of law and the state, which any of us involved in struggles against war, the inequities of the criminal justice system, or of oppression and injustice in general would be foolish to ignore. Agamben’s work today also has a very large influence over a radicalising milieu among academics and students across a very wide set of disciplines traversing the humanities and social sciences, as well as among other activists. His critique of capitalist democracy, although he never names it as such, is fresh and often penetrating. Indeed, on the crucial question of the relation between law and the state of exception, a question which takes on a certain urgency in a world where the legal grey areas of Guantanamo Bay, extraordinary rendition, mass refugee camps, indefinite detention of “terrorist” suspects without trial, and arrests for “pre-crime” are increasingly coming to dominate policing at a local and global level, Agamben offers an analysis from which Marxists and indeed all revolutionaries can learn.
Who is Giorgio Agamben?
Agamben, born in 1942, was a young man during the tumultuous years of the late 1960s and early 1970s. Many of the ideas he expresses—the stupefying nature of contemporary culture, the persistence of totalitarian tendencies at the heart of Western liberal democracy, cynicism towards the spectrum of mainstream politics—have their roots in this period. Some of his key philosophical influences are also those who came to prominence at this time, including such seminal figures as Guy Debord and Michel Foucault. Agamben, however, appears to have played little active role within the movements of the period. Instead he was attending seminars given by one of the founders of existentialism, Martin Heidegger, and making his career in academia. He also became part of a radical milieu of artists including the writers Ingeborg Bachmann, Elsa Morante and Italo Calvino, and the film-maker Pier Paolo Pasolini. Agamben even had an acting part in the latter’s film The Gospel According to St Matthew.
This closeness to radical thought while maintaining a distance from radical practice, which has persisted to this day, is at the root of both the value and flaws in his work. His early works focus mainly on language, ontology and aesthetics. However, from the early 1990s he began to focus on a critique of the hollowing out of contemporary politics, and on the manner in which certain groups within society were increasingly being forced to remain at the margins of social life. It has been during this period, the last 20 years, that Agamben has come to widespread attention, published prolifically and began his multi-volume work, Homo Sacer.
Homo Sacer and the critique of bourgeois democracy
Since the early 1990s Agamben has been engaged on what must be considered his major work, Homo Sacer. Some of the key themes were originally sketched out in some short articles that were later published as part of the collection of essays Means Without End: Notes on Politics. In 1995 he published what has since become the first volume proper of the work, Homo Sacer: Sovereign Power and Bare Life. Since then the series has expanded to include a further six books, with more planned.2 The task that Agamben has set himself in this work is nothing less than “a rethinking of all the categories of our political tradition in light of the relation between sovereign power and bare life”.3 This is necessary, in Agamben’s view, so that we can more clearly identify the machinery of power and halt it in its tracks.4 These books offer an impressively erudite, although often highly abstract, investigation that ranges from antiquity through medieval scholasticism, the birth of modern political philosophy and an analysis of legal paradigms from archaic Rome to the 20th century. The theoretical grounding for the Homo Sacer project rests upon four key thinkers—Carl Schmitt, Walter Benjamin, Hannah Arendt and Michel Foucault. Schmitt and Benjamin are drawn on mainly for their insights into the state of exception;5 Arendt’s influence stems mainly from an article from 1943, “We Refugees”,6 along with portions of her book The Origins of Totalitarianism7 which deal with the limitations of human rights in relation to the nation-state. The concept of “biopolitics” identified by Foucault is the final and critical piece of the theoretical jigsaw.8 Before discussing these various influences and their place within Agamben’s work, it is necessary to explain who or what the homo sacer is.
Agamben starts with a few scattered references from Roman law that date back to the 5th century BC and that identify a subject who could be killed without legal sanction, but who could not be sacrificed, the homo sacer (sacred man).9 Agamben sees an essential element of sovereign power in the delineation of this figure. For the sovereign’s relation to its subjects is not simply one of inclusion, of who belongs within the political community, but is also crucially one of exclusion. That is, the sovereign has the right both to prevent others from entering its realm, but also the right to expel or abandon its own subjects. Although the homo sacer proper disappeared from Roman law so long ago that no significant record of its application remains, it survives into the modern day in the form that Agamben describes as “bare life”, a life that has no significance beyond the fact of its existence.10 The moniker “bare life” is an attempt by Agamben to resurrect a conceptual distinction between two forms of life as a means for understanding and appreciating what lies between the lives of those who are fortunate enough to be included within the political community, and those who are placed at its margins or outside of it altogether.11 In “Critique of Violence”, a key text for Agamben, Benjamin had identified this problem and the need to resist it: “Man cannot, at any price, be said to coincide with the mere life in him, no more than with any other of his conditions and qualities, not even with the uniqueness of his bodily person”.12
“Bare life” is undoubtedly a powerful and revealing metaphor. It accurately sums up the perversity of a world, which, while being more integrated than ever before, is also able to isolate and push whole swathes of people to the margins, for example refugees, slum dwellers, terrorist suspects etc. Rather than give a romantic gloss to these marginalised groups, as many postmodernists do,13 Agamben demonstrates that they are the first victims of an ever-encroaching sovereign power over life. This takes us back to the homo sacer, who in Roman law was apparently one who was abandoned and completely excluded from the structures of society. But today there is no outside of sovereign power or the nation-state, no space where we can escape the grip of the bureaucratic, legal and financial power of capitalism. Instead spaces are created by states where the law is suspended but where the banished subject is entirely under the state’s supervision, eg concentration camps, refugee reception zones, off-shore detention centres for “unlawful combatants”, etc. These spaces have the curious status of being both outside the normal operation of the law, and also having been created via legal instruments—whether in the form of legislation or executive order. Thus the placing outside of the rule of law is itself a function of law. What Agamben has done is unpick this grey area between the rule of law and the state of exception, and the paradox of the exception becoming the norm.
Carl Schmitt’s classic work Political Theology opens with the famous statement: “Sovereign is he who decides on the state of exception”.14 Or, as Thanos Zartaloudis puts it in relation to the homo sacer, the sovereign is “he who decides on who is, each time, (un)political waste”.15 The collapsing of the rule of law together with the state of exception is increasingly evident in the way in which exceptional measures, used first against marginalised groups, have spilt over into the rest of society. So detention without trial and the denial of other forms of due process do not just take place in military outposts but also in regular jails such as Belmarsh, located in the inner London borough of Greenwich. Anti-terrorist legislation is frequently used to police protests. There is the increased use of “kettling” or “sterile zones” during protests, as temporary spaces of exception in the heart of the metropolis, which is applied to people who, in general, enjoy all the benefits of citizenship. In this sense “perhaps [today] we are all virtually homines sacri”.16 States are therefore able to retain the legal framework of capitalist democracies, with all the claims to legitimacy that that entails, while at the same time violating many of its norms. This has given states, particularly in the West, the ability to impose authoritarian-style repression without resorting to formal moves towards dictatorship such as police states, military juntas or fascism. Therefore, it becomes harder to distinguish between the normal functioning of capitalist democracy and the state of exception as they increasingly collapse into one another.
Many of the arguments put against various episodes in the “war on terror” have been based on the idea that they are illegal acts, and thus illegitimate. So we hear frequent calls for a return to the rule of law as the antidote to the excesses of the Bush/Blair governments. The problem lies in the fact that many of the practices of the “war on terror”, such as detention without trial and the creation of legal black holes for enemies of the state, long predate 9/11. Moreover, most if not all of the acts that have been generally considered illegal have more grounding in the law than is often realised.17 Perhaps the strongest ideological weapon in the arsenal of capitalist democracy is the structure of law and the language of rights. These are concepts central to the founding myth of the capitalist state. When one thinks of any one of the bourgeois revolutions, immediately the rule of law and human rights come to the fore. The Declaration of Independence opens with the statement that “all men are created equal”, and the French Revolution heralded the “rights of man and of the citizen”. Right down to the present day the “rule of law” is trumpeted across the political spectrum as a necessary correlate with democracy. Not only do world leaders and liberal theorists lay claim to this notion as a signifier of a civilised state, but so too have significant sections of the radical left. The Marxist historian E P Thompson argued that the rule of law was a good that would transcend the end of capitalism.18 In this he has been followed by the majority of academic Marxists who have written on the subject of law over the past three decades.19
The objection that can be raised at this point is that as much as law is a tool of sovereign power, it also grants citizens fundamental rights, which they can use against sovereign power.20 “Human rights” have become the rallying call of the liberal and even radical left in the face of apparently untrammelled state power, which has been in evidence during the war on terror. But there is a fatal—for many in a literal sense—flaw in that human rights are not truly or solely contingent on the human, but rather on the citizen.21 And the state has as its subjects its own citizens, not human beings in general. This is where Agamben relies on the work of Hannah Arendt. Writing in the immediate aftermath of Second World War and of Nazism, which had created millions of refugees including Arendt herself, she noted how:
The conception of human rights, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships—except that they were still human.22
Perhaps the most important theoretical influence on Agamben’s Homo Sacer is Michel Foucault’s concept of biopolitics, a term which Foucault coined to describe a form of power that emerged in the late Middle Ages and that endures in modernity.23 Whereas in earlier epochs sovereignty was based primarily on the control of territory, in the modern era it has become mostly concerned with population.24 Foucault had earlier identified a series of disciplinary practices in areas such as healthcare and punishment, which came to typify the overarching effect of power to shape the very bodies and minds of the population.25 This acting of power directly on our bodies, on life itself, is biopolitics. This concept provides a useful way of understanding a novel form of production, capitalism, which seeks to maximise the exploitation of its workforce in a manner that is both more subtle, yet more relentless and consistent than that which had gone before. Moreover, the development of the modern state as an indispensable adjunct for various national capitals in competition with one another has involved the capitalist state in forms of power that necessarily seek to measure, calculate and manipulate the population in such a way as to facilitate the fusion of government over space and over our bodies.
However, one of the major problems in Foucault’s work is the attempt to downgrade the centrality of sovereign state power in favour of a multiplicity of power relations that permeate every level of society from the most intimately private to the public. It was this that led postmodernists to adopt Foucault in their attempt to argue that to focus on undermining the power of the state or of the ruling class in general was to pursue a chimera.26 Agamben, on the other hand, restores sovereignty, law and the state to their central position as forms of dominance and oppression. In this he has, in my opinion, successfully adopted biopolitics, while correcting one of its major flaws. In Agamben’s schema the homo sacer is both the most extreme example of this power, extreme in the sense of creating a life that is nothing but bare existence, but also typical in the sense that it represents the modus operandi of the sovereign power of which we are all subjects. In Agamben’s work the state is correctly identified as at the centre of the biopolitical order, through the plethora of techniques at its disposal for identification, the enforcement of legal categories, and control over population movement.
But Agamben’s adoption of “biopolitics” involves a significant break with Foucault in another direction, one that, in my opinion, is wholly mistaken. In Foucault’s historical framework biopolitics represents a decisive transformation that comes with the advent of modernity. Therefore, Foucault is able to historicise its development as concomitant with the transformation from one social form (feudalism) to another (capitalism). But with the homo sacer Agamben sees the roots of “biopolitics” stretching back much further to the early Roman Republic or even earlier. The legal historian Anton Schütz makes the point succinctly: “No way leads back to a space without law…back to the homo non sacer”.27 In this pessimistic view, the prevailing forms of dominance are not a historically contingent phenomenon, but are rather deeply rooted in humanity’s distant past. Agamben’s genealogy, while seductively erudite and revealing, appears to relegate such epochal transformations as the collapse of the Roman Empire, the Reformation and the French Revolution to mere staging posts on sovereign power’s journey towards ever greater dominance. This has the further effect of impressing upon the reader the idea that humanity’s past gives us no precedent for successful resistance, much less the destruction of sovereign power. To be sure, law and the state are persistent forms of domination. But the fact that quite distinct models of sovereignty have arisen and then fallen or been smashed at various times is missing in Agamben’s work. Andreas Kalyvas sharply and accurately critiques Agamben’s ahistoricism as an “almost totalistic, agentless history”.28 Further:
[Agamben] proposes a theory of history that does not seem to bring forth anything new…an uninterrupted historical and philosophical continuity, embodied in the survival of sovereignty over a period of 25 centuries…sovereign biopolitics, Agamben implies, has uninterruptedly accompanied the ancients and the moderns alike, remaining unaffected by critical events, such as the birth of the ancient-Greek democratic city…the emergence of commercial capitalism, the modern discovery of rights, the invention of constitutionalism, the democratic revolutions of the late 18th century, and the entry of the labouring masses into politics.29
Yet just occasionally Agamben appears to recognise the specificity of capitalist modernity in framing biopolitics. In the first volume of Homo Sacer Agamben describes “the fundamental biopolitical structure of modernity” as one in which “the decision on the value (or non-value) of life as such” is central.30 This appears to be an acknowledgement of the uniqueness in how power confronts life under capitalism—that is, with a ruthless calculation of value. As such, it is possible to glimpse a point at which Marxism could be reconciled with Agamben’s critique of sovereignty. Nonetheless, this remains, for Agamben, an unexplored avenue—one closed off by the problems of his historiography.
State of exception
The opening line of Schmitt’s Political Theology—“Sovereign is he who decides on the state of exception,” which I quoted earlier—is a deceptively simple statement that exposes the liberal fiction of the rule of law as the antinomy of the exception or the emergency situation. An idea deeply ingrained in Western capitalist democracies is that the rule of law is the bulwark against barbarism, and systemic violence and oppression. Therefore, states of exception are by their nature seen as unfortunate but temporary departures from this norm, necessary only for the defence of the system that guarantees the rule of law in the first place. But this circularity is, in fact, an accurate reflection of the relationship between norm and exception. The rule of law that grants powers to the sovereign includes within those powers the right of the sovereign to decide, in certain circumstances, that the rule of law must be suspended. The declaration of a state of emergency is an essential element in the exercise of sovereign power because of this inseparable relationship between law and exception. Schmitt celebrates this aspect of sovereign power as necessary for ensuring stability in periods of crisis.31
It is not surprising therefore that Schmitt was to end up as a jurist in the service of the Nazi regime. What is surprising is that at the time he wrote Political Theology, and throughout the 1920s, he was a staunch defender of the liberal-democratic Weimar Republic. As Agamben shows, Schmitt’s ideological trajectory had more consistency than is often recognised. For in the legal sense, the Nazi state was not the negation of Weimar but its continuation in extremis. Article 48 of the Weimar constitution allowed for the complete suspension of “fundamental rights” in situations where “security and public order” were threatened. Hitler’s government used this article repeatedly throughout its rule, regularly suspending the rule of law so that the situation was reversed: the state of emergency became the norm, and the rule of law the exception. Yet the rule of law was suspended by legal means, using powers granted under the constitution. It was therefore a form of “legal lawlessness”.32 It is instructive to note, as Agamben does, that Article 48 was also used repeatedly by governments of the Weimar period to deal with the crises brought on by economic collapse and the threat of revolution.33 Thus, in terms of using bourgeois law as a means of extreme repression, the Nazis merely followed the example of the Weimar Republic. The fact that the path of Nazi power ended in the unique violence of the Holocaust has obscured the extent to which fascist rule could be facilitated by the rule of law. But today capitalist democracies routinely use their own versions of the Weimar Constitution’s Article 48, without a crisis of political legitimacy of the scale of the 1920s and, thankfully, without so far ending up with fascism. Of course, the present circumstances are volatile and it is difficult to predict what course things will take. What is different today is the relative stability and consistency that has been maintained over a significant period of time under de facto states of emergency.
A theory of the state of exception, albeit one outlined in the vaguest of ways, is also found in the work of Walter Benjamin. In the eighth of his Theses on the Philosophy of History he writes: “The tradition of the oppressed teaches us that the ‘state of emergency’ in which we live is not the exception but the rule. We must attain to a conception of history that is in keeping with this insight. Then we shall clearly realise that it is our task to bring about a real state of emergency”.34 It is clear what Agamben takes from this aphorism, and also what he fails, or refuses, to take from it. Like Schmitt, Benjamin identifies the state of emergency as immanent to law. But he goes further by saying that the state of exception has itself become the norm. This insight, so fundamental to Agamben’s work, is bookended by two things that Agamben ignores. For the eighth thesis is not a mere description of a state of affairs, but a call to action informed by the “tradition of the oppressed” for the “introduction of a real state of emergency”. Benjamin appears to be making a distinction between a pseudo “emergency situation” and what he refers to as the “real” state of emergency. He is therefore calling attention to the continuity between capitalist democracy and dictatorship, and thus recognises the necessity for transcending law to ensure true liberation. Nowhere does Agamben ever discuss this key component of Benjamin’s analysis, despite repeatedly referring to this passage of Benjamin’s throughout Homo Sacer.
In “Critique of Violence” Benjamin writes: “[the] legal system tries to erect, in all areas where individual ends could be usefully pursued by violence, legal ends that can only be realised by legal power”.35 In other words, law forces all human relations to be processed through its own peculiar form. This is something that Agamben too understands and discusses in various ways in Homo Sacer. Benjamin then makes the distinction between the right to strike in specific circumstances, and that of the general strike, which by its very nature goes beyond the realm of the legal right to withdraw labour into a challenge to the authority of the capitalist state itself.36 Or put another way, an action conferred by law becomes “violent” at the moment when it is exercised “in order to overthrow the legal system that has conferred it”.37 The aspect of this piece on which most commentators focus is the identification of two types of violence (there is a third, which I will come onto in a moment)—law-making and law-preserving. That is, violence used to create a legal entity, for example a revolution, which leads to a new constitution or state; and violence deployed to preserve an existing state such as police violence or a military coup. As such, “all violence as a means, even in the most favourable case, is implicated in the problematic nature of law itself.” 38 The relevance of this idea for Homo Sacer is obvious. In the same way that these two forms of violence are immanent to law, so too are the norm and the state of exception. The idea that law can be counterposed to either violence or the state of exception is redundant. Instead, as China Miéville writes, “the chaotic and bloody world around us is the rule of law”.39
But in his engagement with Benjamin, Agamben once again misses the transformative element. For in Benjamin’s work the oscillation between law-making and law-preserving violence can be transcended. The problem is that Benjamin’s formulation throughout much of “Critique of Violence” is frustratingly allusive and contradictory. For one thing it is not clear whether the type of transformative violence he advocates should be called “divine” or “pure” violence, and whether the former is a positive thing or not. Benjamin’s use of Old Testament and ancient Greek myths obscures the issue even further. However, in the conclusion to this piece Benjamin does achieve a lucid exposition that falls absolutely within the classical Marxist tradition:
On the breaking of this cycle maintained by mythic forms of law, on the suspension of law with all the forces on which it depends as they depend on it, finally therefore on the abolition of state power, a new historical epoch is founded. If the rule of myth is broken occasionally in the present age, the coming age is not so unimaginably remote that an attack on law is altogether futile. But if the existence of violence outside the law, as pure immediate violence, is assured, this furnishes proof that revolutionary violence, the highest manifestation of unalloyed violence by man, is possible, and by what means.40
It is telling that Agamben quotes only up to the first sentence of this passage but no further and that he shies away at the point at which Benjamin makes his clearest statement on the content of “pure” or “revolutionary” violence. This leads Agamben, in common with most academic commentators on this text, to claim that Benjamin’s “pure” violence is impossible to pin down. It is not. It is clearly stated to be “revolutionary violence” aimed at the destruction of the rule of law. Admittedly, beyond this rather general statement Benjamin becomes rather obscure. Nevertheless, it is not true that Benjamin “offers no positive criterion for its identification”.41 Indeed, taken together with the other key text of Benjamin’s on which Agamben relies, the eighth of the Theses on the Philosophy of History, which calls for the rupturing of the norm/exception axis, it becomes clearer that “pure” violence is indeed that which breaks through the oscillation between the norm and the exception that ground the rule of law.
The absence of resistance
At this point it is worth reflecting on the most significant gap in Agamben’s work: the absence of engagement with ideas about possible resistance to, or transcendence of, the various manifestations of sovereign power. In Foucault’s work, for example, struggle at all levels of society is often present and critical to the development of the new forms of power that he identifies, and moreover he frequently recognises the underlying conflict that drives these changes. Much of Benjamin’s work, certainly the texts that Agamben engages with, is concerned with how the apparent catastrophes of the modern age can be transcended. Agamben also stands apart from most of the other celebrated critical thinkers of our time in this respect. Antonio Negri, Judith Butler, Alain Badiou, Slavoj Zizek and Jacques Rancière all refer to concrete examples of resistance as well as being deeply engaged with theories. With Agamben, on the other hand, struggle is almost wholly absent in his work, except occasionally at the level of ideas. He never acknowledges anyone anywhere in Western history struggling from below. Instead we are presented with a history of kings and clerics devising new forms of power, assisted by theologians and philosophers. (Although, given Agamben’s idealistic approach it sometimes appears the other way around where kings and popes merely assist the theologians and philosophers in applying their ideas.) Agamben’s work therefore frequently offers a very pessimistic prognosis for humanity. The picture we are presented with is of a sovereign power from which there is no discernable means of escape. Reading Agamben, one often feels as if this power resembles the Orwellian “boot stamping on a human face—forever”. So while Agamben’s description of “bare life” devastatingly captures the lives of those at the margins of society, what is missing in his work is an understanding of how those groups have, even in the depths of the Holocaust, resisted and fought back, and in doing so have resurrected themselves as active political subjects.42
Why is there this gap in his work? One possibility that Nina Power suggests is that Agamben has never really shaken off the inheritance of his teacher, the existentialist philosopher Martin Heidegger.43 This has left Agamben with a suspicion of any notion of collectivities and a philosophical preference for passivity over action. Another reason may have to do with Agamben’s scholasticism. Thanos Zartaloudis, who has written probably the most in-depth study of Agamben’s work so far, argues that the task set by Agamben is not to theorise political transformation but solely that of study for its own sake.44 As another commentator has put it, Agamben “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 rest of his philosophy as well)”.45 However, many of the more serious problems in Agamben’s analysis, particularly his tendency to be ahistorical in transposing certain concepts over a wide disparity of historical periods, can be traced to his methodology. This is most evident in Agamben’s engagement with Marxism, for example in his attempt to reconfigure the Marxist methodology of base and superstructure into one where “the structure is the superstructure”.46 This involves seeing history and society as having a “monadic” structure, a monad being a singularity that cannot be separated into distinct parts. Therefore, instead of an ongoing tension between the economic relations in society and the various political and cultural forms that arise out of them, we have instead an analysis of history in which those tensions are absent. This leads Agamben to portray history as a battle of ideas, but with no clear understanding as to why one side or another should end up victorious. Moreover, absent those tensions, it becomes hard, if not impossible, to see at what point a crisis in the prevailing order can be opened up to allow for a transformative event from below.
Yet it must be said that Agamben’s insistence on viewing the human experience as a totality has prevented him from falling into the nihilism of the postmodernists that would come to dominate continental philosophy throughout the 1980s and 1990s. This philosophical commitment is also at the heart of his often insightful critique of the hollowness of contemporary mainstream culture and politics.47 While he does not contribute to an understanding of transformative change, he has tried to develop an understanding of what a life without law or sovereign power might look like. His first attempt at this in The Coming Community is unfortunately marred by an almost impenetrable obscurantism and convoluted phraseology, as well as some postmodernist pretentions that are uncharacteristic of him.48 However, a recent addition to the Homo Sacer series offers a far more interesting approach to this question.
Law, property and communal life
Altissima povertà: Regole monastiche e forme di vita (The Highest Poverty: Monastic Rules and Form
ofLife) opens the fourth and final part of the series. It sheds light on a key historical moment in the development of law, and its role in facilitating the growth of capitalist relations. Agamben opens up a useful discussion of the relationship between property, usage and law. Moreover, he presents St Francis of Assisi and his followers as harbingers of a possible alternative way of life to that governed by law, property and sovereign power. In this book he focuses on the Franciscans and their attempt to create a “form-of-life” completely separated from that of law.49 We find in this latest work of Agamben’s yet another plea for the closing of the gap that cleaves life into that of mere existence on the one hand, and fully social life on the other, which leaves it open to manipulation by sovereign power through the state of exception. For him the significance of “form-of-life” is that it is “a life that can never be separated from its form, a life in which it is never possible to isolate something such as bare life”.50 The Franciscans therefore offer a window onto a life in which there is a “progressive and symmetrical erasure of the difference between being and acting”.51 Their aim, and one from which we must learn if we wish to escape a life completely subsumed by the legal form, is: “How to conceive of life which can never be the object of property, but only that of common use”.52
The church had by the Middle Ages developed a system of rules by which service to God should be expressed. But the Franciscans went a step further by attempting to integrate such rules into life itself. As such there could be no distinction between the life one lived and service to God. This was the model offered by Christ himself whose life and devotion to God were inseparable.53 Among other things this Franciscan mode would prevent the hypocrisy of those clergy who preached piety and yet lived in a manner at odds with church teachings, a problem that has never left the ecclesiastical profession. As Agamben discusses in Opus Dei, the volume of Homo Sacer that was published just before Altissima povertà, one of the developments that accompanied the growth of ecclesiastical office was the separation of the person from the office they held.54 But in the Franciscan “form-of-life”, service to God and the life one leads become one and the same.55 For such a “form-of-life” to be possible it was necessary for the Franciscans to live a communal life in which rules did not create or govern their community, but in which the very practice of communal life and the rules needed to sustain it would reinforce one another.56 This is what distinguishes the rule from the juridical norm. The latter is an attempt to impose a universal impersonal authority, whereas the former is a mode of living that is sustained organically by human beings living together. There is here an interesting parallel with the Russian Marxist Evgeny Pashukanis, who made the distinction between law, a bourgeois concept founded on notions of competing individual rights and ownership, and rules, which served a purely functional mechanism for facilitating social life. The example Pashukanis gave was the distinction between the law governing the various rights and responsibilities involved in the ownership of the railways, and rules that governed the timetable.57 As Agamben recognises, law serves the purpose of creating a space between rights over something and its use. This aspect of the legal form is one way in which the distinction between exchange value and use value under capitalism is given its juridical and ideological underpinning. Agamben offers an interesting insight here into how such a reification of things was resisted in a period that saw the beginning of the construction of the apparatus that would support capitalist relations. Although he ignores this context, which would underpin his historiography, his analysis of this ideological development in fact supports a historical materialist understanding of the development of law. The timing of this struggle by the Franciscans is important. For it was during this period (13th century) that canon law (the church’s own legal system) would become entrenched within everyday life, which in turn had the effect of gradually effacing the more communal aspects of early Christian teaching such as that of Augustine, and made the church complicit in the apparatus of what would become the modern state. This development within the church was driven by the growth of trade in Europe, which in turn gave rise to the legal form necessary to regulate it. Popular custom was being replaced by bourgeois law.58
A second element that was fundamental to the Franciscans and which greatly troubled the church authorities was that of “common (or free) use”. In order to achieve a life that was focused solely and absolutely on the worship of God, the Franciscans had to renounce all claims to property or possession that could embroil them in legal categories of ownership. And it was on this point that the canon lawyers launched a relentless but sophisticated attack on this core of Franciscanism. For, they argued, did not even the Franciscans take “possession” of food that they consumed or the clothes that they wore? These things could not be exclusive to the person consuming them while remaining for “common usage”.59 Thus property and life, and therefore law and life, were inseparable. We hear a similar sort of argument today: without law, the necessary guarantees for each of us to have possession, and the respect thereof, for the essentials of life would be impossible. The Franciscans’ answer to this was that while common usage was the norm, there would be extreme cases—states of exception perhaps—where necessity would obviate it, such as the need for nourishment which entailed exclusive possession of one’s own food and drink. But the Franciscans, in attempting to refute the canon lawyers, ended up couching their arguments against law in legal terms. Thus one leading Franciscan referred to the “only right being to have no rights”,60 which is curiously the inverse of Arendt’s problematic call many centuries later for “the right to have rights”.61 More fundamentally, once they accepted the logic of law, even at the margins of the exception, the Franciscans would be led along a path that ultimately forced them to accept such logic as a whole. For the logic of law is necessarily all-encompassing. You cannot have a discrete arena for legal relations any more than you can for capitalist relations. The lesson, Agamben argues, is that the Franciscans should never have attempted to engage with the canon lawyers on the precise meaning of usage, as St Francis had himself refused to do.
I wholeheartedly agree with Agamben’s diagnosis of law’s malignant impact. And, indeed, I think he is correct to pinpoint this historical moment as one in which the church was transformed into a vehicle for the resurrection and triumph of law. Yet I have a problem with Agamben’s conclusion. First, the flaw in the argument of the Franciscans lies not in the question of usage, but rather over that of possession. Property and possession are not synonymous. One can have possession of something without owning it in the proper sense of that word. The most obvious example of this would be our bodies, over which we should have possession but which is only turned into property as slavery, prostitution, wage labour, etc. We also possess air to breathe without owning it. There is thus no need to cede the legalistic argument about possession and usage by framing it in terms of an ultimate “right” to food, clothes or whatever. Access to food, for example, should be based on the need for sustenance, not on the ability to buy it or otherwise assert rights over it. Rights claims are only necessary where one has someone else against whom it is necessary to make such a claim. A rights claim presupposes antagonistic and competitive social relations—my, or even our, rights versus your rights. Yet, as communists of various stripes, including Franciscans and Marxists, would argue, once all things are held in common, and providing for everyone’s needs is a given, such individualist-type claims become redundant. The link to be broken therefore is not that between rights and usage, but between usage and property. And the dissolution of property relations would then inevitably involve the withering away of law too.62 In other words, once the economic foundations of the relationship have been altered, it becomes possible for a qualitative shift in the superstructure to take place. But to understand this requires a historical materialist understanding, which was not available to the Franciscans in the Middle Ages, and which Agamben chooses to dismiss today.
In places Agamben’s pessimism already seems to deny the possibility of resurrecting this “form-of-life”, perhaps relegating it merely to a place of nostalgic yearning for a long-gone scholasticism. For example he writes: “This displacement of ethics and politics from the sphere of action to that of a form-of-life constitutes the most difficult legacy of monasticism, a legacy that modernity has been unable to take on”.63 Elsewhere he raises the question as to whether a “non-statist politics” founded upon “form-of-life” is achievable, and then fails to provide an answer.64 Nonetheless Agamben has, I believe, offered a fresh and illuminating take on the question of how to conceive of life without law and private property. In doing so, he makes an important contribution to conceptualising an alternative to the hollow and reified life we experience under capitalism. What Agamben describes as “form-of-life” can of course also be referred to by a well-known term: communism. It will be interesting to see if and how Agamben draws a link to the Marxist tradition on this question in later volumes of this fourth, and so we are led to believe, final part of the Homo Sacer project. But the importance of his work lies in the fact that he is prepared to engage in a thoroughgoing challenge to the apparatus of the state, and is beginning perhaps to formulate a coherent vision of what may lie beyond it.
This article has necessarily dealt with the most current and intellectually pioneering aspect of Agamben’s work, at the expense of many other surely worthwhile contributions that he has made. His writings on culture are often thought-provoking, and, despite proclivities to postmodernism, I would definitely recommend The Man Without Content65 as his most insightful intervention in this field. For those who have an interest in language and ontology, Thanos Zartaloudis’s Giorgio Agamben: Power, Law and the Uses of Criticism66 provides an in-depth engagement with that aspect of Agamben’s scholarship. In contrast I have omitted discussion of the third volume of Homo Sacer, Remnants of Auschwitz because in this book Agamben loses the edge of much of the rest of the series in cutting through the mysticism of sovereign power, and instead contributes to the mystification of the Holocaust.67
Agamben is almost always intellectually exciting, and his etymological and genealogical excavations are often very revealing. But there is a big gap between, on the one hand, his discoveries, his unearthing of the past, his diagnosis of the present and, on the other hand, his understanding of the real material forces that have shaped history, and which can revolutionise society in the future. Yet a critical appreciation of Agamben’s work can nonetheless aid anyone concerned with the real revolutionary transformation of society. The following passage, in which he warns against adopting a “right of resistance” in legal terms, as exists for example in the current German constitution, provides us with a good precis of the central importance of Agamben’s work for us:
It is certain…that if resistance were to become a right or even a duty (the omission of which could be punished), not only would the constitution end up positing itself as an absolutely untouchable and all-encompassing value, but the citizens’ political choices would also end up being determined by juridical norms.68
Although it is undoubtedly the case that the law bestows a certain legitimacy, to cleave too closely to legalism can equally bind us ideologically within a framework that precludes any radical challenge to the system. While there is always a danger of adopting an ultra-leftist celebration of law-breaking for its own sake, a conclusion which could be reached using some of Agamben’s formulations, it seems to me that in the early 21st century a real challenge is posed for those of us in the established capitalist democracies, where ever more extreme state violence and repression are being waged against social movements and the organised working class, not via recourse to police states or fascism, but rather squarely within the norms of capitalist democracy. The decade since 9/11 has made this challenge particularly urgent, and Agamben contributes greatly to our understanding of this phenomenon. A return to some form of dictatorship in the capitalist democracies is not, of course, unthinkable. And should such a threat become a clear and present one, there must be no question that we would have to defend what we have within the existing order.
Agamben’s crucial insight is his uncovering of how the rule of law, through its intimate relationship to the state of exception, eased the way for the arrival of fascism, rather than acting as a bulwark against it. As Agamben also shows, for those many millions across the globe—refugees, the homeless, the starving, terrorist suspects, etc—whose reduction to an existence of “bare life” is set, at least in part, by their legal categorisation, the distinction between law and the exception has almost no meaning. Thus to cling to the language of rights and the logic of law may only serve to restrict our scope for thinking and acting to not just halt the machine, but to smash it.
11: I would like to thank Thanos Zartaloudis, a wonderful teacher and friend, who first introduced me to the work of Giorgio Agamben. I am also very grateful to Louis Bayman, Alex Callinicos and Gareth Dale for their incisive comments on an earlier draft of this article.
2: Homo Sacer has not been published following the order of the series. So there are one or two gaps in the series to be filled, and more may yet be added to earlier volumes. The series so far includes the following: Homo Sacer: Sovereign Power and Bare Life (Homo Sacer I); State of Exception (Homo Sacer II, Part 1); The Kingdom and the Glory: For a Theological Genealogy of Economy and Government (Homo Sacer II, Part 2); The Sacrament of Language: An Archaeology of the Oath (Homo Sacer II, Part 3); Opus Dei: An Archaeology of Duty (Homo Sacer II, Part 5); Remnants of Auschwitz: The Witness and the Archive (Homo Sacer III); The Highest Poverty: Monastic Rules and Form-of-Life (Homo Sacer IV, Part 1).
3: Agamben, 2000, px (Translation modified).
4: Agamben 2005, p87.
5: Schmitt, 2005; Benjamin, 1969.
6: Arendt, 1996.
7: Arendt, 1973, mainly chapter nine.
8: Foucault, 1998, Foucault 2008, and Foucault 2009 are the key texts.
9: Agamben, 1998, p71. It might seem odd that one who is “sacred” could be treated in such a manner. But the term meant at the time to be placed outside of society. It later evolved into its present meaning as something that was outside of the everyday or usual, and thus something special and untouchable. Thus to profane is to reunite that which has been made sacred, or reified from everyday use. See the essay “In Praise of Profanation” in Agamben, 2007a.
10: Agamben’s use of the homo sacer has been subject to criticism, with some arguing that the surviving evidence is too obscure to locate its actual meaning in the law of the early Roman republic. See, for example, Fitzpatrick, 2005, and Kiesow, 2005. Agamben’s response to these criticisms can be found in the essay “What is a Paradigm?” in Agamben, 2009.
11: The ancient Greeks had two words for “life”: “Zoé” meant simply the state of any living thing, in other words what we might think of as mere existence. “Bìos” referred to life as a member of the political community, thus involving the endowment of legal status and rights. This distinction was used by Aristotle to define the parameters of life in the home on the one hand, which concerned all including women, children, slaves etc, and on the other hand life in the city which was the preserve of male citizens.
12: Benjamin, 1979, p299.
13: See Kaplan, 1996, which although generally in praise of postmodernism offers an excellent critique of this aspect of its approach.
14: Schmitt, 2005, p5.
15: Zartaloudis, 2010, p146.
16: Agamben, 1998, p115.
17: For example, in the case of Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the US Supreme Court effectively upheld the right of the government to indefinitely detain “enemy combatants” with a mere nod in the direction of the rights of US citizens to a minimal level of due process before being so defined. In the UK the House of Lords, in the case of A and others v. Secretary of State for the Home Department  UKHL 56, ruled against the government’s detention without trial of terrorist suspects only on the grounds that it was discriminatory between citizens and non-citizens. But the right of the government to derogate from many aspects of due process in the face of a broadly defined “threat to the life of the nation” was upheld. This decision was later confirmed by the European Court of Human Rights in A and others v. UK  ECHR 301.
18: Thompson, 1977, p266.
19: Miéville, 2006, stands out as a notable exception to this trend. See also Neocleous, 2006, for an excellent critique of left illusions in law in relation to the state of exception.
20: Kalyvas, 2005, pp115-118.
21: Arendt, 1973, pp290-299.
22: Arendt, 1973, p299.
23: He introduces the concept in Foucault, 1998.
24: Foucault, 2009.
25: Foucault, 2003; Foucault, 1991.
26: The place of law within Foucault’s schema has been the focus of an interesting debate. See Hunt and Wickham, 1994, and Golder and Fitzpatrick, 2009. In my opinion, Foucault is somewhat inconsistent on this question. In some works, notably Foucault, 2002, he appears to argue that juridical paradigms are the fundamental basis for modern forms of power. Yet in Foucault, 1991, and elsewhere he suggests that law is merely one of many disciplines along with things such as education and psychiatry, which all play a more or less equal role in the service of power.
27: Schütz, 2008, p 126.
28: Kalyvas, 2005, p112.
29: Kalyvas, 2005, p111.
30: Agamben, 1998, p137.
31: Writing over 20 years later, Schmitt is even more explicit in arguing, from an ultra-right point of view, that the downfall of Western power is rooted in adherence to bourgeois legal fictions, rather than the more honest criteria of relations based on a clear friend/enemy dichotomy-Schmitt, 2003.
32: Zartaloudis, 2010, pxiv.
33: Agamben, 1998, pp14-15.
34: Benjamin, 1969, p257.
35: Benjamin, 1979, p135.
36: Benjamin, 1979, pp136-137.
37: Benjamin, 1979, p137.
38: Benjamin, 1979, p142.
39: Miéville, 2006, p319, emphasis in original.
40: Benjamin, 1979, pp153-154.
41: Agamben, 1998, p63.
42: I am grateful to Gareth Dale for this point.
43: Power, 2010.
44: Zartaloudis, 2010, pix.
45: Thurschwell, 2005, p173.
46: Agamben, 2007b, p136.
47: In this respect Agamben, 1999b, offers some brilliant critiques of the separation of art from life and the split between “high” and “low” culture in modernity.
48: Agamben, 1993.
49: Agamben, 2011. Although he had earlier touched upon the Franciscan concepts of “form-of-life” and “free (or common) usage” in Agamben, 2000, and Agamben, 2007a, it is in this latest work that he most fully deals with them, and integrates them into his critique of sovereignty. I have used the French translation of this work, as no English one was available at the time of writing. However, it has since been published in English as The Highest Poverty: Monastic Rules and Form-of-Life (Meridian).
50: Agamben, 2000, pp3-4 (translation modified).
51: Agamben, 2011, p119.
52: Agamben, 2011, p10.
53: Agamben, 2011, p134.
54: Agamben, 2012.
55: Agamben, 2011, p158.
56: Agamben, 2011, pp87-88.
57: Pashukanis, 2002, p79.
58: Tigar, 2000, gives an excellent description of this development in parts II and III.
59: Agamben, 2011, p174.
60: Agamben, 2011, p153.
61: Arendt, 1973, p298.
62: Pashukanis, 2002.
63: Agamben, 2011, p90.
64: Agamben, 2000, pp8-9.
65: Agamben, 1999b.
66: Zartaloudis, 2010.
67: Agamben,1999a. Zizek makes a very good critique of this sort of mystification in Zizek, 2001, p66.
68: Agamben, 2005, p11.
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