Critical Legal Thinking

Law & the Political

Sovereign Exception: Notes on the Thought of

Giorgio Agamben
by Amy O'Donoghue2 July 2015

KeyConcept

Giorgio Agambens HomoSacer:SovereignPowerandBareLife, the first

book of his multi-volume Homo Sacer project, urges a reconsideration of
theories of sovereignty as put forward from Hobbes to Rousseau (1998:
109). The theory of sovereign power offered by the book is based on the
state of exception (as in Schmitt[1]) and the production of a bare, human
life caught in the sovereign ban, which constitutes the threshold of the
political community. Responding to Foucaults theory of biopolitics, in

which human life becomes the target of the organisational power of the
State, Agamben argues that there exists a hidden tie between sovereign
power and biopolitics, forged in the exceptional basis of State sovereignty.
SovereignPowerandLaw
Sovereign power, Agamben argues, establishes itself through the
production of a political order based on the exclusion of bare, human life.
This it achieves through the enactment of the exception in which the law is
suspended, withdrawn from the human being[2] who is stripped of legal
status and transformed in relation to sovereign power into a bare life
without rights. Bare life, encompassed in the exception, inhabits the
threshold of the juridico-political community.
The sovereign exception, Agamben shows, gives rise to the juridical order.
[T]he rule, suspending itself, gives rise to the exception that is, the
juridical order, suspending its own validity, produces the exception of bare
life and, maintaining itself in relation to the exception, first constitutes
itself as a rule (ibid: 18). Upon this (inclusive) exclusion of bare life,
Agamben argues, the Western State itself is constituted.
HomoSacer
The bare life in the sovereign exception is captured in a specific relation to
sovereign power, what Agamben terms a relation of exception or relation
of ban. Those who inhabit the state of exception cannot be said to be freed
from the juridical order and sovereign rule; bare life is not simply set
outside the law and made indifferent to it (ibid: 28). Through its own
suspension, the law encompasses living beings (2005: 3) who are
simultaneously bound and abandoned to it. As such, the bare life captured
in the sovereign ban is included in the juridical order through its
exclusion; it finds itself tied to the order, and the sovereign power by which
it is constituted, in the relation of exception (1998: 18).
The paradigm of the bare life captured in the sovereign ban Agamben finds
in the figure of homosacer of archaic Roman law (ibid: 8). Homosacer
has been excluded from the religious community and from all political
life: he cannot participate in the rites of his gens, nor [] can he
perform any juridically valid act. What is more, his entire existence is
reduced to a bare life stripped of every right by virtue of the fact that

anyone can kill him without committing homicide; he can save himself
only in perpetual flight or a foreign land. (ibid: 183)

Stripped of legal status and expelled from the political community, homo
sacer is exposed unconditionally to the potential for killing by anyone.
Homosaceris in a continuous relationship with the power that banished
him precisely insofar as he is at every instant exposed to an unconditional
threat of death (ibid).
ZoandBios
Those who are captured in the sovereign ban and stripped of all legal
status, find themselves, by the same act, banned from the political
community. In this way, the sovereign decides which lives will be
recognised as belonging to the community of political beings and which will
be classified only in terms of biological fact. The basis of this distinction is
addressed by Agamben with recourse to the two terms used by the Greeks
to distinguish between forms of life: zo, natural reproductive life confined
to the private sphere, and bios, a qualified form of life, political life (ibid:
1).
Those who are banned from the domain of political beings are reduced by
the sovereign to life defined only in terms of zo (ibid: 183), recognised by
the sovereign only as biological beings.
The separation of zo from bios, and the production of a bare, human life as
a product of sovereign power can be said to undergo a transformation in
modernity as zo, or biological life, is repositioned inside the polis,
becoming the focus of the States organisational power. This process,
rooted in classical politics and extending into the present, indicates, for
Agamben, a Western politics that has constituted itself from its beginnings
as a biopolitics (ibid: 181).
Biopolitics
Michel Foucault identified a transition in modernity by which the State
increasingly took as its task the care and regulation of biological, human
life itself. The establishment, beginning in the 17th century, of what
Foucault terms biopower, a regularising technology of power that
distribut[es] the living in the domain of value and utility (1990: 144),

signifies for him the emergence of a biopolitics of the human race (2003:
243).
Biopower is distinguished for Foucault from sovereign power. This new
technology of power, he argues, has to qualify, measure, appraise, and
hierarchize, rather than display itself in its murderous splendor (1990:
144). As such, biopolitics begins with the emergence of biopower in
modernity. Agamben, however, offers a corrective to Foucaults theory:
sovereign power is itself already biopolitical, based on the constitution of
bare life as the threshold of the political order. For Agamben, the
emergence of the technology of biopower signifies, not a break in the
history of Western politics, but the expansion of the existing biopolitical
imperative of the State, as bare life moves from the periphery to the centre
of the States concerns, entering in modernity into the political order as the
exception increasingly becomes the rule (1998: 9). Placing biological life at
the center of its calculations, the modern State [] does nothing other than
bring to light the secret tie uniting power and bare life (ibid: 6).
The production of bare life through the exception, and the preoccupation of
State power with the management of zo, advance increasingly and in
parallel throughout modernity, reaching an apex in the 20th century as the
concentration camp system of the totalitarian State attempted the first
normal and collective [] organization of human life founded solely on
bare life (ibid: 135).
TheCamp
The historical concentration camp, such as those of the Spanish in Cuba or
the British in South Africa, Agamben writes, were born out of a state of
exception and martial law (ibid: 167). Writing of the Nazi State, Agamben
argues that a transition has occurred, that the concentration camp system
of 20th century totalitarianism is now the product of a willed state of
exception. It is
thus the structure in which the state of exception [] is realized
normally. The sovereign no longer limits himself [] to deciding on the
exception on the basis of recognizing a given factual situation (danger
to public safety): laying bare the inner structure of the ban that
characterizes his power, he now de facto produces the situation as a
consequence of his decision on the exception. (ibid: 170; emphasis in
original)

Under modern liberal democracy, the state of exception, once a temporary

suspension of law, became a stable, generalised condition[3]: the
declaration of the state of exception has gradually been replaced by an
unprecedented generalization of the paradigm of security as the normal
technique of government (2005: 14). This tendency provided the
totalitarianisms which emerged in the 20th century with the framework by
which rule by a permanent state of emergency was possible (ibid: 2). As the
site in which the state of exception is given a permanent spatial
arrangement (1998: 169), the concentration camp is, for Agamben, the
paradigmatic space of this new political arrangement. It is the space that is
opened up when the state of exception begins to become the rule (ibid:
168-9).
The camp, brought into being through the enactment of the state of
exception, is distinctly the product of sovereign power. It is the space in
which bare life is most clearly seized by the State. Insofar as its inhabitants
were stripped of every political status and wholly reduced to bare life, the
camp was [] the most absolute biopolitical space ever to have been
realized, in which power confronts nothing but pure life, without any
mediation (ibid: 171). Agamben quotes Arendt who writes that the camp is
the space in which everything is possible (ibid: 170). The camp cannot be
said to be defined by the atrocities that take place there, but by the
potential that exists that they may. This is the condition to which the bare
life of homosacer is banished. As such, the camp is realised wherever bare
life abandoned by law is produced.
Agamben locates the camp in such spaces as the Stadio della Vittoria in
Bari to which thousands of Albanian immigrants were consigned in 1991
before being forcibly deported, and the Vlodrome dHiver where in 1942
Jews were detained following mass arrests by the French police before
being sent to Auschwitz (ibid: 174). Agambens analysis of the process by
which the state of exception has become generalised shows, however, that
our conception of the camp should not be limited to historico-geographical
instances. Rather, the camp, as the space of the exception, must be
understood as an ever-present condition existing in potential within the
political order.
Today, as politics has been transformed into the realm of bare life (that is,
into a camp) (ibid: 120), and the exception has been realised as a

permanent and stable condition, all citizens can be said [] to appear

virtually as hominessacri (ibid: 111).
BIBLIOGRAPHY / FURTHER READING
Agamben, G., 1995. We Refugees. Translated by M. Rocke. Symposium. 49(2),
Summer, pp. 114-119.
Agamben, G., 1998. HomoSacer: Sovereign Power and Bare Life. Translated by
D. Heller-Roazen. Stanford, California: Stanford University Press.
Agamben, G., 1999. Remnants of Auschwitz: The Witness and the Archive.
Translated by D. Heller-Roazen. New York: Zone Books.
Agamben, G., 2005. State of Exception. Translated by K. Attell. Chicago:
University of Chicago Press.
Agamben, G., 2007. The Work of Man. In: M. Calarco and S. DeCaroli eds.,
2007. Giorgio Agamben: Sovereignty and Life. Stanford, California: Stanford
University Press.
Foucault, M., 1990. The History of Sexuality, Volume 1: An Introduction.
Translated by R. Hurley. London: Penguin.
Foucault, M., 2003. Society Must Be Defended, Lectures at the Collge de
France, 197576. Translated by D. Macey. M. Bertani and A. I. Davidson eds.
London: Penguin.
Raulff, U., 2004. An Interview with Giorgio Agamben. German Law Journal,
2004,

Vol.

5,

No.

5,

pp.

609-614.

[Pdf]

Available

at

<https://www.germanlawjournal.com/pdfs/Vol05No05/PDF_Vol_05_No_05
_609-614_special_issue_Raulff_Interview.pdf> [Accessed 17 June 2015].
[1]The decision [on the exception] reveals the essence of State authority most
clearly (Schmitt quoted in Agamben, 1998: 16).
[2] The juridical order withdraw[s] from the exception [bare life] and
abandon[s] it (ibid: 18).
[3] During World Wars I and II, Agamben writes, the democratic regimes were
transformed by the gradual expansion of the executives powers (2005: 6);
World War One (and the years following it) appear as a laboratory for testing
and honing the functional mechanisms and apparatuses of the state of
exception as a paradigm of government (1998: 7).

194

 Tags: Agamben Exceptionality

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