Protest in the State of Exception (Reprise)

We are hearing much about the president's arrogation of authority as a so-called "wartime" commander-in-chief to overrule FISA law in order to permit domestic spying by the NSA. (See this Kevin Drum post for more on the self-proclaimed status of "wartime" president.) These revelations are nothing new, but they seem to have garnered more attention than other such events. This has prompted a reprise of a piece I wrote last May:

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In a Washington Post op-ed of January 12, 2005, Harold Meyerson summarized the likely legacy of George W. Bush’s presidency: he will be known as the “president of fabricated crises.” Meyerson explains, “To attain goals that he had set for himself before he took office -- the overthrow of Saddam Hussein, the privatization of Social Security -- he concocted crises where there were none.”

From the false pretenses for war and the techniques of extraordinary rendition employed to deny legal status and humane treatment to wartime detainees to the hype of an imminent crisis in the Social Security Trust Fund and the triumph of ideology over scientific fact—what is common to all these cases is the notion of the exception. No matter what the norms and the facts of our situation may be, it is always possible to arrogate the authority to declare a suspension of those norms and to simply deny the facts. That is, it is always possible to fabricate a crisis and declare a state of exception.

Near the end of Walter Benjamin’s life when many of his worst fears seemed to be on the verge of realization, he issued the following admonition: “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 concept of history that accords with this fact.” [Walter Benjamin, Illuminations, translated by Harry Zohn (New York: Schoken Books, 1968), p. 257.] In the work of Giorgio Agamben from the past fifteen years or so, it is clear that Agamben has heard this call and is attempting to think through its implications for our time. His projected four-volume series Homo Sacer (i.e., “sacred man”) represents his most concerted effort on this subject and builds on some of his prior meditations from the early 1990s published in Means without End: Notes on Politics.

In those early writings, Agamben issues a stern warning of his own: “the spectacular-democratic world organization that is emerging actually runs the risk of being the worst tyranny that ever materialized in the history of humanity, against which resistance and dissent will be practically more and more difficult.” [Giorgio Agamben, Means without End: Notes on Politics (hereafter ME), translated by Vincenzo Binetti and Cesare Casarino (Minneapolis: University of Minnesota Press, 2000), pp. 86-7.] This claim, though quite extreme, may seem less so in light of the reports regarding the August 2002 memo from White House legal counsel which “suggested that the president's commander-in-chief authorities meant that those acting at his direction would be immune from prosecution for torture. That memo drew on a January 2002 memo that suggested … that the president could suspend the application of international protections for detainees.”

In Jane Mayer’s New Yorker article “Outsourcing Torture,” she interviews John Yoo regarding his advisory role to the president on U.S. torture policy. She writes:

Yoo . . . argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation’s defense…. As Yoo saw it, Congress doesn’t have the power to “tie the President’s hands in regard to torture as an interrogation technique.” He continued, “It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture.”

When it is a "core" function of the Commander-in-Chief to abuse his powers, the state of exception has become the rule. Furthermore, even if this process is established by “fabricated crises” which purport to warrant emergency measures of various sorts, when the exercise of power has found ways to escape its own legitimation, this situation constitutes a real crisis in the legitimacy of the state-form itself.

Although the risk of tyranny has notable markers in recent history and is especially obvious in contemporary American politics, Agamben’s work as a whole offers a more extensive account—dare I say, a grand récit—of the pervasiveness of this nihilistic condition. For Agamben, this condition is named the state of exception, and it is not only becoming the rule as a “technique of government” but, as he writes in State of Exception, “it also lets its own nature as the constitutive paradigm of the juridical order come to light.” [Giorgio Agamben, State of Exception (hereafter SE), translated by Kevin Attell (Chicago: University of Chicago, 2005), pp. 6-7.] A great deal of Agamben’s work deals with this problem of the constitutive paradigm of the juridical order and in particular with Carl Schmitt’s provocative account of sovereignty in his Political Theology. I will now spend some time trying to make that constitutive paradigm come to light.

Following Schmitt, Agamben agrees that the sovereign is the one who decides the exception. In the words, the sovereign is the one who gets to decide when the rules can be suspended. However, Agamben follows Schmitt even further in this logic of sovereignty. Having said this much about sovereignty, two possibilities emerge: either there was no sovereign before that decision to suspend the rules, or there was a sovereign before the decision. Schmitt argues that the first case would require a sovereignless norm, a norm that would have to be applicable to chaos. He finds this nonsensical. Thus, the truth must lie in the second option—that the sovereign preexists the decision to suspend the rules and also decides the norm itself. In other words, the sovereign establishes the condition of normality within which norms can be applied. Thus, the concept of sovereignty entails constituent power. In practice this constituent power is exerted every time a state of crisis prompts a government to absorb within its constitution the sovereign plenipotentiary powers that have been deemed necessary to deal with the emergency at hand. Agamben offers numerous examples of this phenomenon from ancient Rome to the Weimar Constitution to the emergency powers assumed by U.S. Presidents Lincoln, Wilson, Roosevelt, and Bush. When a crisis lasts long enough, it tends to become the norm—a fact which has not escaped the notice of crisis theologians in the neo-orthodox tradition.

Agamben schematizes this process in Hobbesian terms. The transition from the state of nature to a state of law is instituted by the constituent power of the sovereign, and this sovereign power maintains its authority by retaining the right to suspend the state of law and thereby initiate a state of exception. This process leading from nature to law to exception, however, is too simple. By “state of nature,” we are to understand this anomic condition as one of absolute exposure to violence. Thus, it is from this unlimited danger of anomie that the nomos protects us, but a latent threat always resides in the state of law because of the permanent possibility of its own suspension in a time of crisis—whether real or fabricated. (See ME, pp. 5-6.) Thus, the threat of a state of exception is a threat of a return to a peculiar kind of state of nature—one that exists as a legal void within the juridical order and in fact founds the legitimacy of the political constitution.

This is a key point for Agamben—that there can be anomie structured within nomos such that each is constitutive of the other. As he puts it State of Exception,

There are not first life as a natural biological given and anomie as the state of nature, and then their implication in law through the state of exception. On the contrary, the very possibility of distinguishing life and law, anomie and nomos, coincides with their articulation in the biopolitical machine. (SE, p. 87.)

Agamben argues further in Homo Sacer that as the exception becomes the rule in political life, “the realm of bare life—which [in classical Aristotelian political theory] is . . . situated at the margins of the political order—gradually begins to coincide with the political realm, and exclusion and inclusion, outside and inside, bios and zoē, right and fact, enter into a zone of irreducible indistinction.” [Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (hereafter HS), translated by Daniel Heller-Roazen (Stanford: Stanford University Press, 1998), p. 9.] Once we have entered this zone of indistinction, we become caught in the biopolitical machine.

Agamben writes extensively on the issue of biopolitics, i.e., the relation of biological life and political power. Drawn from his reading of Aristotle's De Anima, the key concept is the distinction between the instinctual animal life of zoē and the politically engaged life of bios. Reading Aristotle against the grain, Agamben recognizes the dependence of bios (political life) on zoē (animal life) not only as its logical precondition but as a necessary exclusion. Political life is constituted and sustained by its exclusion of animal life from the political domain.

To understand what this "exclusion" of bare life consists in, it will be necessary to see the true character of political power: namely, the power over life and death. This power, according to Benjamin whom Agamben follows closely here, is that of pure violence, and hence establishes the links of bare life to violence and violence to law.

A key point about this relation of violence and law requires clarification. There is something sacred which conditions all instances of sovereign power. This condition is exemplified by homo sacer ("sacred man")--a term borrowed from Foucault which Agamben expands to denote any figure, i.e., any body, who has been abandoned before the law.

Agamben argues that modern political theories have omitted this violent ground of all state power. While political theory often posits a contractual origin of state power, Agamben claims that all sovereignty originates from the “ban” or “abandonment,” by which he means the isolation and exclusion of bare life. In other words, politics is always from its origin biopolitics. Whereas in classical politics there were rights (natural, human, logical) at the foundation of political liberty, in Agamben's scheme there is the arbitrary decision of sovereign power. This is the logic of sovereignty; its true character appears from and within the state of exception, the hallmark of which is the power over life and death as was exemplified most fully by the Nazi death camps.

Thus, Agamben writes, “[t]here is no return from the camps to classical politics,” (HS, p. 188.) and furthermore since “[b]are life is a product of the machine” (SE, pp. 87-88.) there is also no return to nature. In other words, there is no easy way out of the bind that we are in, i.e., the pernicious form of nihilism rendered by modern metaphysics and technologism. If moderns like Habermas are calling for the reinstitution of respect for the Aristotelian distinction between the grown and the made in order to prevent the domination and mastery of the latter over the former, such Romantic defenses of the victimization of pure nature or bare life are hopeless. There is no return to that Garden in which there might be a harmonious oikos. Nor is there hope for some new body devised by biotechnology which might resolve the relation between zoē and bios; that is, once life inevitably becomes the “bare” life of the state, there is no return from the inexorable economics of biopolitics.

At this point, I would like to return to the Benjamin passage that got all of this started. After claiming that the state of exception is becoming the rule, he states that “it is our task to bring about the real [wirklich] state of exception, and this will improve our position in the struggle against fascism.” If there is a glimmer of hope in Agamben’s hermeneutic of political life, it is neither a return to nature nor to classical politics but through a “deactivation” of the use of law as when the Apostle Paul claims that “Christ is the end of the law” (Romans 10:4). The Law is not abolished or annulled but “deactivated” (katargein), thus confirmed—as the exception confirms the rule. Thus, Agamben points toward an eschatological condition in which, in accordance with Romans 3:31, we do not overthrow the law but uphold it in this “real state of exception” which can never be fully inscribed within the biopolitical machine.

One final suggestion. Given the Heideggerian diagnosis of the Western metaphysical tradition as based upon the nihilistic desire for mastery—mastery of being itself, of nature, and of the animal, Agamben tends to pose the problem of biopolitics in relation to the call for Heideggerian passivity and openness because anything else would recapitulate the nihilistic state of exception. We must “let the earth be,” experience being as such, recognize our boredom as an opening to our environing world which prevents us from becoming entirely captivated by it, etc. However, there are some obvious counterexamples to this account of sovereignty as deriving from crisis and leading to dictatorship. For example, there can be collective democratic actions which suspend the rules in order to create a state of exception. This is precisely what a labor movement accomplishes through a strike. In Jewish law, the jubilee represents a time when the socially dead are resurrected from debt-slavery. Finally, in terms of biological or bare life, Richard Dawkins and Keith Stanovich have written extensively on the distinct human capacity to “rebel against the tyranny of the selfish replicators,” i.e., the genes which would otherwise enslave us to biological determinism. All of these points would require further discussion than is possible here. Thus, I end with a question: can our model of eschatology reflect these more active and rebellious moments in human experience without succumbing to the nihilistic logic of sovereignty?