Agamben and Law

Philosophers and Law

Series Editor: Tom Campbell

TitIes in the Series:

Habermas and Law Marxand Law

Hugh Baxter Susan Easton

Cicero and Modern Law Hobbes on Law

Richard 0. Brooks Claire Finkelstein

Aquinas and Modern Law Foucault and Law

Richard 0. Brooks and James Bernard Murphy Ben Golder and Peter Fitzpatrick

Aristotle and Modern Law Derrida and Law

Richard 0. Brooks and James Bernard Murphy Pierre Legrand

Augustine and Modern Law Hume and Law

Richard 0. Brooks Ken Mackinnon

Plato and Modern Law Gadamer and Law

Richard 0. Brooks Francis J. Mootz 111

Locke and Law Nietzsche and Law

ThomBrooks Francis J. Mootz 111 and Peter Goodrich

Rawls and Law Wittgenstein and Law

ThomBrooks Dennis Patterson

Rousseau and Law Hegel and Law

ThomBrooks Michael Salter

Kantand Law Nussbaum and Law

B. Sharon Byrd and Joachim Hruschka Robin West

Spinoza and Law Agamben and Law

Andre Santos Campos Thanos Zartaloudis
Agamben and Law

Edited by

Thanos Zartaloudis
University oiKent, UK

I~ ~~o~;~;n~~;up
LONDON AND NEW YORK
First published 2015 by Ashgate Publishing

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Contents

Acknowledgements ix
Series Prejace xiii
Introduction xv

PART I LIFE AND SOVEREIGNTY

2 Anton Schütz (2008), 'The Fading Memory of Homo non Sacer', in Justin Clemens,
Nicholas Heron and Alex Murray (eds), The Work ojGiorgio Agamben: Law,
Literature, Life, Edinburgh: Edinburgh University Press, pp. 114-31. 3
2 William Watkin (2013), 'Homo Sacer and the Politics ofIndifference',
in Agamben and IndifJerence: A Critical Overview, London: Rowman and
Littlefield International, pp. 181-207. 21
3 Kirk Wetters (2006), 'The Rule ofthe Norm and the Political Theology of
"Real Life" in Carl Schmitt and Giorgio Agamben' , Diacritics, 36, pp. 31--46. 49
4 Mathew Abbott (2012), 'No Life Is Bare, the Ordinary Is Exceptional:
Giorgio Agamben and the Question ofPolitical Ontology', Parrhesia, 14,
pp. 23-35. 65

PART 11 STATE OF EXCEPTION AND GOVERNMENT

5 Steven DeCaroli (2007), 'Boundary Stones: Giorgio Agamben and the Field of
Sovereignty', in Matthew Calarco and Steven DeCaroli (eds), Giorgio Agamben:
Sovereignty and Life, Stanford, CA: Stanford University Press, pp. 43-69. 81
6 Daniel McLoughlin (2012), 'Giorgio Agamben on Security, Govemment and
the Crisis ofLaw', GriffithLaw Review, 21, pp. 680-707. 113
7 Bruno Gulli (2007), 'The Ontology and Politics ofException: Reftections on
the Work of Giorgio Agamben' , in Matthew Calarco and Steven DeCaroli (eds),
Giorgio Agamben: Sovereignty and Life, Stanford, CA: Stanford University Press,
pp. 219--42. 141
8 Jessica Whyte (2013), "'The King Reigns but He Doesn't Govern": Thinking
Sovereignty and Govemment with Agamben, Foucault and Rousseau', in Tom Frost
(ed.), Giorgio Agamben: Legal, Political and Philosophical Perspectives, London:
Routledge, pp. 143-61. 167
9 Anton Schütz (2009), 'Imperatives without Imperator', Law and Critique, 20,
pp. 233--43. 187
vi Agamben and Law

PART III LAW, VIOLENCE AND JUSTICE

10 Thanos Zartaloudis (2011), 'On Justice', Law and Critique, 22, pp. l35-53. 201
11 Mathew Abbott (2014), 'The Creature before the Law', in The Figure ofThis World:
Agamben and the Question of Political Ontology, Edinburgh: Edinburgh University
Press, pp. 106-22. 221
12 Catherine Mills (2008), 'Playing with Law: Agamben and Derrida on Postjuridical
Justice', SouthAtlantic Quarterly, 107, pp. 15-36. 239
l3 Tom Frost (20 l3), 'The Hyper-Hermeneutic Gesture of a Subtle Revolution',
Critical Horizons, 14, pp. 70-92. 261
14 Paolo Bartoloni (2008), 'The Threshold and the Topos ofthe Remnant:
Giorgio Agamben' ,Angelaki: Journal ofthe Theoretical Humanities, 13,
pp. 51-63. 285

PART IV FULFILLING THE LAW: THE POWER OF EXPERIENCE

15 Alice Lagaay and Juliane Schiffers (2009), 'Passivity at Work: A Conversation

on an Element in the Philosophy of Giorgio Agamben' , Law and Critique, 20,
pp. 325-37. 301
16 Alexander Cooke (2005), 'Resistance, Potentiality and the Law:
Deleuze and Agamben on "Bartleby''', Angelaki: Journal ofthe Theoretical
Humanities, 10, pp. 79-89. 315
17 Carlo Salzani (2013), 'In a Messianic Gesture: Agamben's Katka',
in Brendan Moran and Carlo Salzani (eds), Philosophy and Kafka,
Plymouth: Lexington Books, pp. 261-82. 327
18 Adam Kotsko (2013), 'The Curse ofthe Law and the Coming Politics:
On Agamben, Paul and the Jewish Alternative', in Tom Frost (ed.),
Giorgio Agamben: Legal, Political and Philosophical Perspectives,
London: Routledge, pp. 13-30. 349
19 Nicholas Heron (2011), 'The Ungovernable', Angelaki: Journal ofthe
Theoretical Humanities, 16, pp. 159-74. 367

PART V STUDYING THE LAW

20 Anton Schütz (2000), 'Thinking the Law with and against Luhmann, Legendre,
Agamben', Law and Critique, 11, pp. 107-36. 385
21 Daniel McLoughlin (2009), 'In Force without Significance: Kantian Nihilism
and Agamben's Critique ofLaw', Law and Critique, 20, pp. 245-57. 415
22 John Lechte and Saul Newman (2012), 'Agamben, Arendt and Human Rights:
Bearing Witness to the Human', European Journal ofSocial Theory, 15,
pp. 522-36. 429
23 Connal Parsley (2010), 'The Mask and Agamben: The Transitional Juridical
Technics ofLegal Relation', Law Text Culture, 14, pp. 12-39. 445
 Agamben and Law vii

24 Steven DeCaroli (2013), 'Political Life: Giorgio Agamben and the Idea of
Authority', Research in Phenomenology, 43, pp. 220--42. 473
25 Bostjan Nedoh (2011), 'Katka's Land Surveyor K.: Agamben's Anti-Muselmann',
Angelaki: Journal ofthe Theoretical Humanities, 16, pp. 149-61. 497
26 Giorgio Agamben, Stephanie Wakefield (trans.) (2014), 'What Is a Destituent
Power?', Environment and Planning D: Society and Space, 32, pp. 65-74. 511

Name Index 521

Acknowledgements

Ashgate would like to thank the researchers and the contributing authors who provided copies,
along with the following for their permission to reprint copyright material.

Brill for the essay: Steven DeCaroli (2013), 'Political Life: Giorgio Agamben and the Idea
of Authority', Research in Phenomenology, 43, pp. 220--42. Copyright © 20 l3 Koninklijke
Brill NV, Leiden.

Duke University Press for the essay: Catherine Mills (2008), 'Playing with Law: Agamben
and Derrida on Postjuridical Justice', South Atlantic Quarterly, 107, pp. 15-36. Copyright ©
2008 Duke University Press.

Edinburgh University Press for the essays: Anton Schütz (2008), 'The Fading Memory of
Homo non Sacer', in Justin Clemens, Nicholas Heron and Alex Murray (eds), The Work of
Giorgio Agamben: Law, Literature, Life, Edinburgh: Edinburgh University Press, pp. 114-31.
Copyright © 2008 Anton Schütz; Mathew Abbott (2014), 'The Creature before the Law',
in The Figure of This World: Agamben and the Question of Political Ontology, Edinburgh:
Edinburgh University Press, pp. 106-22. Copyright © 2014 Mathew Abbott.

Johns Hopkins University Press for the essay: Kirk Wetters (2006), 'The Rule of the Norm
and the Political Theology of"Real Life" in Carl Schmitt and Giorgio Agamben' , Diacritics,
36, pp. 31--46.

Maney Publishing for the essay: Tom Frost (20l3), 'The Hyper-Hermeneutic Gesture of a
Subtle Revolution', Critical Horizons, 14, pp. 70-92. Copyright © 2013 W.S. Maney & Son
Ltd.

Parrhesia for the essay: Mathew Abbott (2012), 'No Life Is Bare, the Ordinary Is Exceptional:
Giorgio Agamben and the Question ofPolitical Ontology', Parrhesia, 14, pp. 23-35.

Pion Ltd, London for the essay: Giorgio Agamben, Stephanie Wakefield (trans.) (2014),
'What Is a Destituent Power?', Environment and Planning D: Society and Space, 32,
pp. 65-74. Copyright © 2014 a PION publication.

The Rowman & Littlefield Publishing Group for the essays: William Watkin (20l3), 'Homo
Sacer and the Politics of Indifference', in Agamben and IndifJerence: A Critical Overview,
London: Rowman & Littlefield International, pp. 181-207. Copyright © 2014 William
Watkin; Carlo Salzani (2013), 'In a Messianic Gesture: Agamben's Katka', in Brendan Moran
and Carlo Salzani (eds), Philosophy and Kajka, Plymouth: Lexington Books, pp. 261-82.
Copyright © 2013 Lexington Books.
x Agamben and Law

Sage Publications for the essay: John Lechte and Saul Newman (2012), 'Agamben, Arendt
and Human Rights: Bearing Witness to the Human', European Journal ofSoäal Theory, 15,
pp. 522-36. Copyright © 2012 the authors.

Springer for the essays: Anton Schütz (2009), 'Imperatives without Imperator', Law and
Critique, 20, pp. 233--43. Copyright © 2009 Springer Science + Business Media; Thanos
Zartaloudis (2011), 'On Justice', Law and Critique, 22, pp. 135-53. Copyright © 2011
Springer Science + Business Media; Alice Lagaay and Juliane Schiffers (2009), 'Passivity
at Work: A Conversation on an Element in the Philosophy of Giorgio Agamben' , Law and
Critique, 20, pp. 325-37. Copyright © 2009 Springer Science + Business Media B.Y.; Anton
Schütz (2000), 'Thinking the Law with and against Luhmann, Legendre, Agamben' ,Law and
Critique, 11, pp. 107-36. Copyright © 2000 Kluwer Academic Publishers; Daniel McLoughlin
(2009), 'In Force without Significance: Kantian Nihilism and Agamben's Critique of Law',
Law and Critique, 20, pp. 245-57. Copyright © 2009 Springer Science + Business Media B.Y.

Stanford University Press for the essays: Steven DeCaroli (2007), 'Boundary Stones: Giorgio
Agamben and the Field of Sovereignty', in Matthew Calarco and Steven DeCaroli (eds),
Giorgio Agamben: Sovereignty and Life, Stanford, CA: Stanford University Press, pp. 43--69.
Copyright © 2007 by the Board of Trustees of the Leland Stanford Junior University. All
rights reserved; Bruno Gulli (2007), 'The Ontology and Politics of Exception: Reftections
on the Work of Giorgio Agamben' , in Matthew Calarco and Steven DeCaroli (eds), Giorgio
Agamben: Sovereignty and Life, Stanford, CA: Stanford University Press, pp. 219--42.
Copyright © 2007 by the Board of Trustees of the Leland Stanford Junior University. All
rights reserved.

Taylor & Francis for the essays: Daniel McLoughlin (2012), 'Giorgio Agamben on Security,
Government and the Crisis of Law', Griffith Law Review, 21, pp. 680-707. Copyright ©
2012 (Taylor & Francis Ud, http://www.tandfonline.com) on behalf of Griffith University;
Jessica Whyte (2013), '''The King Reigns but He Doesn't Govern": Thinking Sovereignty and
Government with Agamben, Foucault and Rousseau', in Tom Frost (ed.), Giorgio Agamben:
Legal, Political and Philosophical Perspectives, London: Routledge, pp. 143-61. Copyright
© 2013 Tom Frost. Reproduced by permission ofTaylor & Francis Books UK; Adam Kotsko
(2013), 'The Curse ofthe Law and the Coming Politics: On Agamben, Paul and the Jewish
Alternative', in Tom Frost (ed.), Giorgio Agamben: Legal, Political and Philosophical
Perspectives, London: Routledge, pp. 13-30. Copyright © 2013 Tom Frost; Paolo Bartoloni
(2008), 'The Threshold and the Topos ofthe Remnant: Giorgio Agamben' ,Angelaki: Journal
ofthe Theoretical Humanities, 13, pp. 51-63. Copyright © 2008 Taylor & Francis and the
editors of Angelaki, reprinted with permission ofthe publisher (Taylor & Francis Ud, http://
www.tandfonline.com); Alexander Cooke (2005), 'Resistance, Potentiality and the Law:
Deleuze and Agamben on "Bartleby"', Angelaki: Journal of the Theoretical Humanities, 10,
pp. 79-89. Copyright © 2005 Taylor & Francis and the editors of Angelaki, reprinted with
permission of the publisher (Taylor & Francis Ud, http://www.tandfonline.com); Nicholas
Heron (2011), 'The Ungovernable', Angelaki: Journal of the Theoretical Humanities, 16,
pp. 159-74. Copyright © 2011 Taylor & Francis and the editors of Angelaki, reprinted with
permission of the publisher (Taylor & Francis Ud, http://www.tandfonline.com); Bostjan
Nedoh (2011), 'Kafka's Land Surveyor K.: Agamben's Anti-Muselmann', Angelaki: Journal
 Agamben and Law xi

ofthe Theoretical Humanities, 16, pp. 149--6l. Copyright © 2011 Taylor & Francis and the
editors of Angelaki, reprinted with permission ofthe publisher (Taylor & Francis Ud, http://
www.tandfonline.com).

University of Wollongong for the essay: Connal Parsley (2010), 'The Mask and Agamben:
The Transitional Juridical Technics ofLegal Relation', Law Text Culture, 14, pp. 12-39.

Every effort has been made to trace all the copyright holders, but if any have been inadvertently
overlooked the publishers will be pleased to make the necessary arrangement at the first
opportunity.

Publisher's Note

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can retain the original pagination to facilitate easy and correct citation ofthe original essays.
It also explains the variety of typefaces, page layouts and numbering.
Series Preface

The series Philosophers and Law selects and makes accessible the most important essays in
English that deal with the application to law ofthe work ofmajor philosophers for whom law
was not a main concern. The series encompasses not only what these philosophers had to say
about law but also brings together essays which consider those aspects ofthe work ofmajor
philosophers which bear on our interpretation and assessment of current law and legal theory.
The essays are based on scholarly study of particular philosophers and deal with both the
nature and role of law and the application of philosophy to specific areas of law.
Some philosophers, such as Hans Kelsen, Roscoe Pound and Herbert Hart are known
principally as philosophers of law. Others, whose names are not primarily or immediately
associated with law, such as Aristotle, Kant and Hegel, have, nevertheless, had a profound
inftuence on legal thought. It is with the significance for law of this second group of
philosophers that this series is concerned.
Each volume in the series deals with a major philosopher whose work has been taken up
and applied to the study and critique of law and legal systems. The essays, which have all
been previously published in law, philosophy and politics journals and books, are selected and
introduced by an editor with a special interest in the philosopher in question and an engagement
in contemporary legal studies. The essays chosen represent the most important and inftuential
contributions to the interpretation ofthe philosophers concerned and the continuing relevance
oftheir work to current legal issues.

TOM CAMPBELL
Series Editor
Centre for Applied Philosophy and Public Ethics
Charles Sturt University
Introduction

Thinking of any idea in its historical experience, appreciates that an idea, such as law, traverses
the disciplinary boundaries of legal study and practice and has done so from its inception. In
other words, the legal system could not monopolize the idea of law, though more and more
it captures within its reason a legal conception of law as weIl as what may lie outside it, by
capturing, pre-emptively, the so-posed outside itself. The capturing ofthe outside oflaw is the
result of a legal operation. Thus, the distinction between law and life becomes paradoxical in
that it is, at the same time, presupposed to occur outside history, that is, not as an act, but as
a matter offact (whether natural or institutional). In contrast, Agamben's most important, yet
subtle, contribution to legal and philosophical thought of the law, may be in that he offers to
our thinking what could be called, in one sense, a radical kind of pragmatism (which however
does not fall into the confines of conventional distinctions between 'ideas and things', such
as in the career-building conftict between materialism and idealism, or the career-stabilizing
pragmatism).
If to act or to be, more than ever today, means to have a right to act or to be, then Agamben 's
reopening ofthe question 'what does it mean to act?' searches for a way ofbeing (an ethos)
whereby a right would no longer be able to separate itself from the life it promises or
presupposes. In this ethos, the fulfilment ofrights (laws) can only be a life, a life immanent
to itselfand not to an ahistoricallaw; and this would be the Idea oflaw, the good. Agamben's
syntagma of a form-of-life, that is, a life that can no longer be separated from its form (or
qualities) and vice versa, does not lead to a life of nihilism, or pessimism or an apoliticallife,
but a life that is no longer a programme or a promise. Instead, law is operating for centuries
on the scission of a life-as-lived (a life that could never be other than it is) and a life-as-an-
abstract ideality (a life that can never be). A religion of law of the secular dress-code that
necessitates, once more, a discipline ofhope.
What could an Idea of law entail? While the concept of law is most frequently understood
as confined to legal practice and legal academic study, it is worth noting that historically
the concept of law has had a far wider use and engagement and 'was said in many ways'.
In Homeric tim es, for instance, law as nomos was not a matter of applying a general rule or
a principle to a particular case, while in early ancient Roman law, the law was not delineated
as monocular and certain, but as a field of means through which to respond to situations.
Furthermore, there were times when there were more than one 'Laws' , be they divine laws,
naturallaws, civillaws, cannon laws and so forth, all ofwhich may have eventually struggled
against each other to defend an imperialistic territory of applicability, but often co-existed
and remained at least comparable, rather than incompatible. With the undeniable success of
the positivization of the law, already in the fourteenth century, if not earlier, in what is called
modernity, law comes to increasingly appear as a self-referential operation of, ultimately,
being governed itselfby law rather than by 'men'.
Yet ifthis success is considerable it has also replaced the earlier comparability oflaws to the
variety of sources internal to positive and customary law, as weIl as to the imperialistic scission
xvi Agamben and Law

between 'cultures' oflaws. Western law in particular in its ever-widening imperialistic project
restricts its comparability more and more to its self-absorbed internal scissions and reforming,
while denying any comparability to other legal systems (positive, natural or customary) that
it declares to be outside its 'progressive logic' and hence secluding any chance of translation.
To find one's self-sufficient unity within one's self, however, is to end experience. It is a
reactive kind of progression where the wider the horizon may appear in later modernity, the
narrower the possibility of comparability, translation, encounter. In this manner law has been
more and more divorced from experience and the Idea of law has been often turned into a
concept that one cannot participate in.
One is often told that in modem law, earlier problems have been displaced, but have they
disappeared? If positing a law, each time, means positing a limit (presupposing and effecting
a division between two things), that is limiting (also) that very positing as such within its own
contingency in denial; the crucial relation that is posited (and hidden), each time, between the
posited and what may lie outside it as its excess, or its unknown territory, remains the key
matter for thought.
For instance, it has been a recurring suggestion that a 'culture' of positive law (though
this is not to undervalue the contributions of positivism) has achieved progress by capturing
excess as its very own in the first place in an attempt to pre-define, in one way or another,
the past, the present and the future of its field of vision. If this has been crucial towards the
achievement of systemic autonomy, at least to an extent, of the legal system; affording a legal
system the hugely advantageous benefit of normatively distinguishing its claims from those
of moral, theological, philosophical, economic and sociallaws, the disadvantage remains that
instead of comparability and knowledge, the field of law can become one of monocular self-
indulged (though often still creative) administrative analytics. While the criticism, too, of
legal systems as to their self-enclosed analytics often misses itself the point (without such
self-enclosed analytics the system oflaw would be unable to become the generally appreciated
system of legal reasoning and adjudication that it is), it remains the case that such systemic
closure can lead to self-reliance as much as to blindness. Law, after all, must be made (to see).
It relies upon human acts relying upon other human acts and so forth. And legal acts have the
peculiarity ofbeing both human acts, as well as acts 'in the name ofthe law'.
Agamben has in fact examined within his long (and now fully published) book series of
Homo Sacer, in asense, this very peculiarity and what consequences follow from it.! The
response of the legal system to its potential blindness towards social and existential desires,
laws and acts, has been to attempt to capture whatever lies outside it and render it procedurally
as an inside-outside part of the system to which a relation can be maintained in the sense

The series is composed as folIows: volume I, part I is Homo Sacer: Sovereign Power and Bare
Life, trans. D. Heller-Roazen (1998). There does not seem to be apart 2 to this volume. Volume 11,
part I is State 01 Exception, trans. K. Attell (2005). Part 2 is The Kingdom and the Glory: For a
Theological Genealogy olEconomy and Government, trans. L. Chiesa (with M. Mandarini) (2011). Part
3 is The Sacrament olLanguage: An Archaeology olthe Oath, trans. A. Kotsko (2010a). There may be
an error as to whether the next volume is part 4 or 5 but in any case the part that follows is indicated in
print as part 5: Opus Dei: An Archaeology olDuty, trans. A. Kotsko (2013a). Volume III is Remnants 01
Auschwitz: The Witness and the Archive, trans. D. Heller-Roazen (l999a). Volume IV entails two parts:
the first is The Highest Poverty: Monastic Rules and Form-of-Life, trans. A. Kotsko (2013b); and the
second is The Use 01 Bodies, trans. A. Kotsko (2015, forthcoming).
 Agamben and Law xvii

of areservoir, a field of potentiality for the sovereign law's application and enforcement
(see Agamben, 1999). To ensure that the system can occupy both sides to a limit it hopes to
control itself so to be on the threshold of its own positing, is the ambition of legal (but also
political, economic or moral) closure. An absolving limit that through its sufficiency promises
the salvation of its subjects. From then on the two camps of 'the law in the name of law' and
'justice in the name of justice' are separated, unaware that their relation has been played out
always already from the inception of the closure of the legal system. What is missed by both
sides is that there is no justice for us (not at least in the sense of a salvation or reparability),
and there is also no way in which law can merely be posited in some kind of purity of its own
making, secluding all comparability to other 'laws' or 'traditions' or potentialities.
Given that philosophy, despite its waning 'academic' importance, has been the classic
field wherein the act of positing and its presuppositions have been thought, it is particularly
meaningful that the Italian philosopher, who has had training in both law and philosophy, has
during the last 20 years or so, turned thought, to key questions as to how law is conceived
and experienced, such as in raising questions as to: the relation between astate of normalcy
and astate of exception, the relational foundation of law in violen ce, the forms of exclusion
of certain 'bare lives', the relationship between sovereignty and government (or oikonomia),
the distinction between using things and having rights to use things, studying the law and
applying the law, and so forth.
Beside the legal profession, legal operations and processes, the academic study of law,
and further, wider political and social expressionisms withlagainst the law, it is a good idea
to maintain, thus, for a theoretical thinking of the Idea of law, both within the auspices of the
discipline of law, but equally crucially outside its disciplinary limits and academic skirmishes
in a usually far too stifting field of doctrinal legal study. One could call this thinking Idea
ofthe law in its multiple (and anything but unitary) historical formations and deformations,
while remembering that the metaphysics oflaw are as old (and prevalent) as the Idea oflaw.
Yet what ifthe Idea oflaw was understood as an experience? Historically, the Western image
of thinking the law, while not exclusively in the field of legal knowledge, has mostly been
presupposed as a movement or a passage from a, more or less, ahistorical, transcendental or
pseudo-immanent foundation (or origin) to a plane ofknowledge, expression, application; and
in late modernity, perhaps most characteristically a self-referentially qualified-truth position.
Law appears increasingly in this version of its history as a signature-arrow that crosses time.
In fact as a signature that can even cross backwards in time and determine whatever the
so-called pre-Iaw state ofthings may have been. Ifthinking the law in the discipline is to be
divided only between the glorifications of doctrinal communion and the reactive sociological
reformism of reparations, then this would be a dis service to both the necessity of doctrinal
tradition-forming and the sociological vision. What would indeed happen if one was to think
oflaw without having to join a movement or a programme?
Instead, when thinking (the Idea of law) as an experience that does not suppose such a
movement, thought at its contingent starting point finds, could only find some questioning,
some hesitation and peculiar combination of negligent modesty so to render its articulation not
on the obsessive trail of self-sufficient progress, truth, society, meaning, values and the like,
but in an affirmative relation to a zone ofnon-knowledge. What would it mean to maintain a
genuine relation to a zone of the unknowable or the unsaid in thinking the law? This question
could help one conceive what Agamben's, the unlikely legal theorist, contribution to coming
xviii Agamben and Law

legal thought may be. Thinking the law, the aim of a study of law as an experience, and as ever
as a continuous social experiment that can never elirninate doubt, dis agreement and change.
That is, as such legal thought would suggest finding not a way out of ignorance, but the right
relationship with ignorance or non-knowledge (see Agamben, 2010b, pp. 113-14). While this
is not yet another programme for better care and subtlety in the study and application of law
(though that remains always useful), neither is it an antithetical programme for the fetishization
of the contingently other or the 'critically' different that lies' outside' the law (as in some forms
for criticallegal studies). Instead the right amount of modesty and interventionist distinction
is needed, since no thought is remarkable unless it registers its contingent imagination in
its particular experience, while it proceeds to dismantle archaeologically the matter of the
situation in which it happens to find itself, not as an event, but as a life that, above all, does
not obsess over its normative self-worth and meaning.
It should perhaps be noted that modesty is here understood not as a personal attribute to
thought or the thinking-subject, but as a modality ofthought, a modality ofneither identity nor
difference (since for thought neither identity nor difference are ever self-sufficient). Instead,
thought finds itself in the middle of a modality of some degree of necessity in the midst of
knowledge's inherent contingency. In this regard, Watkin (2013), in what is probably at the
moment the best study of Agamben's thought, has shown extensively the importance of the
notion ofindifference in Agamben's writing. In this sense, modesty's aim is not some kind of
humility or self-restraint, but instead the indifferent end of modesty as a mediator of identity
and difference, or the common and the proper. Agamben insists that difference is as much
a composite in the system of metaphysics as that of identity. Identity as much as difference
(as philosophical structures) is historically contingent (that is, not logically necessary) and
neither of them can claim to be prior to the other, foundational and so forth. Identity and
difference are instead abipolar structure of the same. In this sense they can be understood
to form a common state of in-difference as their plane of structuration. When then Agamben
claims to render these inoperative he thinks through the ways in which key oppositional (or
differential) machines like that of zoe-bios, or sovereignty-oikonomia are to be suspended in
order for their exposed indifference to be suspended in itself without ever being able to be
reconstituted as some kind of indifferent unity or totality of possibility ever again.
By studying the how we know what we know, the airn becomes to avoid knowing things
in what may appear as the only sanctioned manner, in order to suspend indifference itself and
open the field to new uses of the law. Equally it becomes necessary to avoid being simply
opposed to this or that and be caught in the bipolar relation between identity and difference
over an empty throne ofpower (whether conformist or revolutionary). It is to render, in fact,
thought indifferent to indifference. Avoiding polemics, the stakes are unexpectedly higher,
than they seemed when in astate of opposition. What would it mean to render indifference
intelligible and in this way indifferent to itself? There is no pure state of nature or bare life
to which one can return away from the polemic politics, for nature as much as bare life
is the construct of the polis and of the law. In a similar sense there is no pure glory of the
unconditioned to which one aims at, at the end of one's life of struggle, for the unconditioned
is itself a construct that attempts to deny the contingent conditions of one's life (Watkin,
2013). What does it mean then to think indifference as indifferent to itself than to think
without negative origins and absolute ends?
 Agamben and Law xix

In Homo Sacer Agamben (1998) following his method ofphilosophical archaeology traces
the structuring of the concept (or, in his terms, the signature) 'life' through its claim to a
foundational scission between a common bare life (an originallife without qualities, naked)
and a life of qualification (ofproperties, actualities, identities and differentiations). Agamben
then exposes the machine of anthropogenesis that is the motor ofbifurcation or bipolarization
at the centre of this scission, and which presupposes and reproduces constantly this scission
in order to be able to defend a particular actuality of qualified life (such as, for instance, the
Western concept of citizenship) as if it were a common universal 'nature' signed by life 'as
such' (bare life). Exposing this machine of negativity (see Agamben, 1991) (since in this
structure an infinitely replenishable commonality that is naked or empty remains as a reservoir
to the actual qualification of life that is posed as proper), requires the study of extreme cases,
the exceptions that reveal the limit-drawings of the rule and so Agamben has ever turned his
attention to the margins of the logic of such anthropogenesis.
From the margins (bare life, the camp, etc.) Agamben is able to expose philosophically how
this alleged universality and necessity ofthe proper life is historically constructed, contingent
and founded on a scission that is, in reality, astate of constant indifferentiation, a threshold of
indistinction as Agamben often calls it. Such indistinction or indifferentiation, when exposed,
suggests that the concept of life as presupposed and reproduced by this anthropogenetic
machine is unnecessary, catastrophic and a form of capture that needs to be transposed into
what really lies at its place: an immanent, free and common, plane ofpower ofwhich no one
knows what it is capable of. Human beings have no essential origin or destiny, and the Ideas
oflaw, freedom and ethos are the most difficult andjoyful experiences. What remains is a life
as living.
On the one hand this means that when law, government and power assume an ahistorical
Law, Sovereignty and Power that founds and legitimates them, what is in fact shown instead is
that these foundations are a product of their contingent existence, rather than a transcending of
pre-existing limits. Instead, sovereign power is shown to presuppose and require an oikonomic
or administrative power and the two polarities are in a functional unity or indifferent relation.
On the other hand, this means further that to stand opposed, to resist (at least in that sense)
in the name of a cult of contingency becomes more and more insufficient in the longer term,
when shown to be non-differential as a result of its reformist reactiveness or nihilism, despite,
or especially because of, its supposedly self-sufficient differential claim to another law (of
contingency), truth or power, without challenging or exposing the bifurcated structure of
power that it itself relies upon in the first place. Between transcendence and immanence, the
common and the proper, to refer to traditional metaphysical terms, Agamben suggests the
existence of an oikonomia (an economy in the sense of management or government) of every
dominant conceptual-discursive form in the Western canvas of conservative, as well as more
radical, political and legal thought.
The intelligibility of law is thus concealed as indifferent, above all else, in the signature of
a Law that wishes to manage identity as well as difference. Yet when the relational and at the
same time divisive manner oftheir historical contingency is shown, thinking the law becomes
an experience that could expose indifference as such; and the signature Law could ce ase its
supposedly necessary negation of its self in each of its others, and vice versa (as for instance,
in the age old battle between positivism and naturallaw). This turn of law's intelligibility
to an experience, does not aim at the return to some pre-divisive state of grace, nor at some
xx Agamben and Law

synthetic andJor neutral intelligibility of some totality or a justice to come. The singularity
of an experience, a thought or a casus (case) in this manner never transcends its singularity,
but learns to read itself as an exemplar of indifference suspended: as apower (potentia) that
is not exhausted in its actual guise, here or there. Only such suspended indifference has no
original example or law to refer to any longer than its own ultimate suspension of propriety;
and so the free use of the proper becomes the hardest thing as Agamben often repeats, reciting
Hölderlin. 2
The suspension of indifference points not to an essence but to an existence, not a what,
but a how something is taken to be adetermination, a consistency or a limit. And the how
something is, is never a thesis or a hypothesis, but instead a paradigmatic exposition in the
constellation of irreparable existence, it is a parasite not asolid ground. In this regard it is
crucial for new as well as experienced readers of Agamben's work to read his Homo Sacer
series after considering his book on method (see Agamben, 2009). Neutrality is not possible
since philosophical archaeology, Agamben's central method, is defined in the following
manner:

Provisionally, we may call 'archaeology' that practice which in any historical investigation has to
do not with the origins but with the moment of a phenomenon's arising and must therefore engage
anew the sources and tradition. It cannot confront tradition without deconstructing the paradigms,
techniques, and practices through which tradition regulates the forms of transmission, conditions
access to sources, and in the final analysis determines the very status of the knowing subject. The
moment of arising is objective and subjective at the same time and is indeed situated on a threshold
ofundecidability between object and subject. It is never the emergence ofthe fact without at the same
time being the emergence ofthe knowing subject itself. (Agamben, 2009, p. 89)

Yet the image of experience here is one that 'comes ab out every time as a shuttling in both
directions along a line of sparkling alternation on which common nature and singularity ...
change roles and interpenetrate' (Agamben, 1993, p. 20), and the same image of experience
can be transposed to law so that the positions of a singular case and a common law can
interpenetrate at least within the study of legal thinking. If the aim of legal study is the
intelligibility of the justice of whatever there is, and not the application of this or that law,
then justice could be understood in Agamben's thought as neither memory nor forgetting,
but as the experience at the threshold of their suspended indifference: a life. A life or an
immanence where the transcendent is the taking place of the entities, as their innermost
exteriority. The suspension of the division between matter and form, not in the name of some
pure formlessness or pure materiality but instead as a thought, the experience of a taking
place. That is, perhaps, a way to name justice. The intelligibility of what there is, which
encounters the non-intelligible and the unthought, beside itself.

The Collection in Outline

In this collection of already published work on Agamben's thought that bears a wide (as
well as direct) relation to law, gathered from within the legal field and theory in particular, it

'The free use of the proper is the most difficult', in Hölderlin's famous letter to Böhlendorf, in
Hälderlin Werke undBriefo (1969, H, p. 941, my trans.).
 Agamben and Law xxi

has been aimed to offer an exemplary range of varied readings, reftections and approaches
of different intensity and merit, compiled in one reference volume to aid especially the
researcher of Agamben's work in relation to his reftections on law, as well as those of some
of his readers. It has to be noted that the literature available on Agamben 's thought is already
vast and this compilation in no way claims to be exhaustive. 3 It could also be noted that the
current state oflegal, in particular, scholarship on Agamben's thought is energetic but remains
in a nascent state and perhaps the current collection will provide questions and paths for fresh
and better attempts.

Life and Sovereignty

In the first part ofthis collection - 'Life and Sovereignty' - I have collected in no particular
order four essays that approach the key question in the eight volumes of the Homo Sacer
series of Agamben's: that of what the relation may be between life and sovereign power
or law more generally. The first essay titled 'The Fading Memory of Homo non Sacer' by
Anton Schütz (Chapter 1), is a text that offers unique insights into understanding Agamben's
study of biopolitics in close but differentiated juxtaposition to Foucault's; along the lines
of crucial observations on Agamben's method. The second essay titled 'Homo Sacer and
the Politics of Indifference' by William Watkin (Chapter 2) is a key chapter taken from the
author's impressive book on Agamben's thought (Watkin, 2013). In this essay Watkin offers
a remarkable rereading of Homo Sacer in relation to what Watkin has called Agamben's
philosophy of indifference. In doing so Watkin, like Schütz, offers a significant corrective to
the many misreadings of Agamben's study of Homo Sacer. The third essay titled 'The Rule
ofthe Norm and the Political Theology in "Real Life" in Carl Schmitt and Giorgio Agamben'
by Kirk Wetters (Chapter 3), offers a useful critical reading of political theology and life in
Schmitt and Agamben, by rereading Agamben's work in the context of normative discourse
with particular reference to Kurt Hildebrandt, and Georges Canguilhem through a biopolitical
reading of the juridical norm. In the final essay Mathew Abbott in his 'No Life Is Bare,
the Ordinary Is the Exceptional: Giorgio Agamben and the Question of Political Ontology'
(Chapter 4) offers a rereading ofthe notion ofbare life andAgamben's work more widely with
a particular interest in understanding what is a political ontology.

State 0/ Exception and Government

In Part 11 - 'State of Exception and Govermnent' - I have gathered contributions by five

authors who write on various aspects, rather awkwardly collected under a single banner here,
ofAgamben's thoughts on the state of exception, security and govermnent. Steven DeCaroli, in
'Boundary Stones: Giorgio Agamben and the Field of Sovereignty' (Chapter 5), rereads what
he calls the field of sovereignty in order to begin to conceive, through a reading of Agamben 's
critique ofthe tradition of sovereignty, of a political community that does not presuppose it. It

Selecting a sufficiently indicative representation of various approaches and intensities of

understanding and critical engagement was admittedly a hard task. To those not included here who
may feel undeservedly excluded please accept my apologies in advance. I hope the bibliographical note
at the end offers some compensation in this regard, though it also remains a non-exhaustive list of a
continuously proliferating secondary literature.
xxii Agamben and Law

may be an impossible task but DeCaroli sets his sights on what certainly appears possible as a
first step. In order to do so he traces in a rich analysis the concept ofbanishment and the ways-
of-life subject to it, through the Greek context and the Roman republic with elose reference
to the juridical context. The second essay by Daniel McLoughlin titled 'Giorgio Agamben
on Security, Govemment and the Crisis of Law' (Chapter 6), connects Agamben's earlier
critique of sovereignty and banishment with the state of exception as a normalizing technique
of govemment. He traces earlier fragments of Agamben's references to govemment, even
though he did not have the benefit at the time of writing, of referring also to Agamben's
most recent work, in relation to the earlier volumes of the Homo Sacer series, in what is
now a elearer connection between all the volumes of the series as to the bipolarity between
sovereign power and govemment. The third essay by Bruno Gulli titled 'The Ontology and
Politics of Exception: Reftections on the Work of Giorgio Agamben' (Chapter 7) offers a
reading ofthe notion ofthe exception through a reading of Agamben's philosophical tools of
the neither/nor and the normalcy/exceptionality structures of double negation in relation to
one of Agamben's major investigations into the concept ofpower (potentiality), his reading
of Paul and his fundamental critique of the concept of the will. In the fourth essay, lessica
Whyte's "'The King Reigns but He Doesn't Govem": Thinking Sovereignty and Govemment
with Agamben, Foucault and Rousseau' (Chapter 8), offers a rethinking of sovereignty in
conjunction with govemment in Agamben's thought, via Foucault, and interestingly via
Rousseau also, providing a political rereading of key presumptions in legal, political and
philosophical theories as to the bifurcation between Kingdom and administration. In the final
essay, 'Imperatives without Imperator' (Chapter 9), Anton Schütz offers another illuminating
approach to Agamben's radicalization ofFoucault's study of govemment, with his archaeology
of oikonomia, by tracing key implications of Agamben's crucial contribution to legal and
political theory that forms, as the author writes, a change of epistemic paradigm.

Law, Violence and Justice

In Part III titled 'Law, Violence and lustice', five essays are collected that offer different
readings and analyses on the relationship between law and violen ce, law and life and law and
politics. In the first essay by myself, titled 'On lustice' (Chapter 10) I propose a preliminary
reading of Agamben 's fragments of thoughts on justice through an analysis that takes its cue
from Teubner's relatively recent work on justice and the ideas of justice in Benjamin and
Agamben. The second essay by Mathew Abbott titled 'The Creature before the Law' (Chapter
11) offers a reading of Homo Sacer through an engagement with Benjamin's reftections on
violence andAgamben's appreciation ofthem in his work. The third essay by Catherine Mills
titled 'Playing with the Law: Agamben and Derrida on Postjuridical lustice' (Chapter 12)
offers one ofthe relatively earliest notable reftections on the 'debate' between Agamben and
Derrida as to lustice. The fourth essay by Tom Frost titled 'The Hyper-Hermeneutic Gesture
of a Subtle Revolution' (Chapter 13) is a reading of the key idea in Agamben's critique of
community, that of whatever being, in relation to its political and ontological implications
with a special emphasis on the analysis of exemplarity that Agamben provides as a key move
to understanding what he calls - the politics to come (see Agamben, 1993). The final essay of
Part III is by Paolo Bartoloni, titled 'The Threshold and the Topos ofthe Remnant: Giorgio
Agamben ' (Chapter 14). Bartoloni 's essay centres its exploratory focus on another key concept
 Agamben and Law xxiii

of Agamben's, the threshold, through a close reading of Agamben's Pauline understanding of

hope and vocation, with significant differentiations drawn between that reading and Bataille's
'unemployed negativity' as well as Blanchot's 'neuter'. A contribution that points, among
others, to the key significance ofPaul to Agamben's thinking oflaw, politics andjustice.

Fulfilling the Law: The Power 0/Experience

The penultimate Part IV ofthe collection - titled 'Fulfilling the Law: The Power ofExperience'
- opens with a quite unique contribution in dialogic form by Alice Lagaay and luliane
Schiffers, 'Passivity at Work: A Conversation on an Element in the Philosophy of Giorgio
Agamben' (Chapter 15), which in its seeming only simplicity manages to convey what is at
stake in Agamben's thought perhaps better than many hundreds of pages of exegesis offered
in secondary literature. The second essay by Alexander Cooke titled 'Resistance, Potentiality
and the Law: Deleuze andAgamben on "Bartleby'" (Chapter 16), offers a detailed analysis of
potentiality and the law in Deleuze's and Agamben's readings of Bartleby which shows the
proximity between the two thinkers. The next essay by Carlo Salzani titled 'In a Messianic
Gesture: Agamben's Katka' (Chapter 17), adds a significant reading of Agamben's supposed
messianism through the central importance for his work of Katka's writings. Agamben's
Katka is without doubt key to any attempt to understand Agamben's reflection on law and
subjectivity. The fourth essay is by Adam Kotsko and is titled 'The Curse ofthe Law and the
Coming Politics: On Agamben, Paul and the lewishAlternative' (Chapter 18). Kotsko returns
to the key significance of Paul for Agamben's understanding of law and politics through
reference to a short discussion of Paul in Agamben's Sacrament 0/Language (201Oa), which
however has far-reaching implications for the way in which Agamben understands what it
means to make the law into an object of study or play. The final essay of Part IV, Nicholas
Heron's 'The Ungovernable' (Chapter 19), provides a detailed rereading of key themes of
Agamben's more recent work on govemment, linking them to his earlier volumes in the Homo
Sacer series, and offering an attentive analysis ofwhatAgamben proposes as the ungovernable
subject.

Studying the Law

In the final Part V ofthe collection - titled 'Studying the Law' - seven further essays bring
the volume to a close with a wide variety of propositions as to how one can occupy what we
earlier called with Watkin indifference as the experience of thought and the study of law. The
first essay by Anton Schütz titled 'Thinking the Law with and against Luhmann, Legendre,
Agamben' (Chapter 20) offers a comparative overview of three thinkers as to thinking the
law which sets out key parameters for understanding Agamben's reflection of the law. Daniel
McLoughlin's essay titled 'In Force without Significance: Kantian Nihilism and Agamben's
Critique of Law' (Chapter 21) offers a critical reading of Agamben's reading of Kant's
moral philosophy, which is key to his reflection on legal nihilism as the legal condition of
modernity, in relation to the totalitarian constitutional theory of Schmitt's. The third essay by
lohn Lechte and Saul Newman titled 'Agamben, Arendt and Human Rights: Bearing Witness
to the Human' (Chapter 22) offers a rethinking of the notion of the human in Agamben's
thought as a basis for a critique ofhuman rights in what they call their reduction to biopolitical
xxiv Agamben and Law

humanitarianism. The fourth essay by Connal Parsley titled 'The Mask and Agamben: The
Transitional ludirical Technics ofLegal Relation' (Chapter 23) provides a study ofthe notion
of the person in Agamben's thought with particular reference to the juridical person and the
metaphysics of the legal, moral and political subject. The fifth essay by Steven DeCaroli
titled 'Political Life: Giorgio Agamben and the Idea of Authority' (Chapter 24) reads mainly
Aristotle in relation to Agamben's key references to the Greek philosopher with regard to
the question of how the Western tradition conceives of authority, political life and power.
The penultimate essay by Bostjan Nedoh titled 'Katka's Land Surveyor K.: Agamben's Anti-
Muselmann' (Chapter 25) offers a critical outline of Agamben's theory ofthe subject in close
relation to his critique of legal and political agency, with particular reference to a key essay
by Agamben titled 'K' which centres on two famous Katkian figures and on what it may
mean to fulfil the law. The final essay is by Giorgio Agamben himself and is titled 'What Is
a Destituent Power?' (Chapter 26). In this essay Agamben offers perhaps a most illuminating
reftection on what he has called the politics to come with regard to the concept that he has
been referring to throughout his work in numerous ways and which is named here: destituent
power. In this essay an important brief rereading of Benjamin 's famous critique of violence
becomes the basis for a formulation of rethinking radicalor revolutionary subjectivity and the
problem ofthe will as the problematic foundation ofWestern subjectivity.

A Concluding Note

Agamben's is not a philosophy ofpotentiality or impotentiality, operativity or inoperativity as

it is often thought. The relation between the actual (that is incapable of total actualitization)
and the potential (that is incapable ofnever being actualized) forms a signature ofPower, in
Agamben's writings, in which one is not encouraged to take sides, but instead to consider the
problem that power encounters within its own structuring as a supposed movement from a
state of potency to astate of actuality. The problem here is no other than the human experience
of power as that whereby one is capable of one's own impotentiality. In this regard one is in
relation to one's own privation, or so has the Western tradition predominantly, for Agamben,
thought of legal, moral and political power. What is exhausted according to this structure
in actuality is not potentiality but impotentiality, and thus, in a key strategy of rereading
the Aristotelian tradition for Agamben, potentiality is saved and gives itself to itself (see
Agamben, 1999b, p. 184). As saved, and not negated, the potential can thus co-belong or
compose itself in actuality rendering existence not as a being-this or that, but as a being-
capable-to-act indicating also what cannot be appropriated at any point.
F or legal thought this perhaps means that thinking the law is not consigned to either applying
the already existent law and its operations, or simply to problematize and criticize them.
Thinking the law does not mean here to reconsider the law's own pre-determined potential as
an actuality that is awaiting to be simply enacted, so that its order can remain intact. Thinking
the law does not have the goal of determination, but more radically it is revisioned as the
experience of occupying the place of a suspended indifference, whereby the law becomes,
instead, a living contemplation (Agamben, 1999b, p. 234). While legal thought in the sense
of legal formalism is understandably useful to the practice and study of operational law, for
legal thought in its wider sense it is crucial to suspend the now exposed indifferent structuring
of law between norm and fact, or law and right, and instead to read law genealogically as an
 Agamben and Law xxv

inseparable part to a multitude of philosophieal, political and theological traditions. And this
in order to open the space of indifference to one of poiesis: becoming-Iaw.
To suspend this end in itself means that law can then be studied as a means without end,
suspending in this sense the metaphysics oflaw that are presented as ever necessary in Western
juridical culture. Whatever one may think of Agamben's own reftections on the fulfilment of
the law, it remains of great interest that Agamben offers the student of the law an unexpected
gift: a way in which the law can be rethought outside ofthe strait-jacket oflegal doctrine (not
in order to naively disregard it, but in order to open the law to new uses).
If there is no Law that can save us now, there is also no philosophy that can save uso Both
philosophy and law are co-implicated in the metaphysical structures of the signature called
the West. Legal thought can reread the pairing of a self-referential and foundational Law
of law as an example of the wider problem of the pairing of the common and the proper.
In this sense contrary to calls for the repoliticization of law, akin to the ones that argue for
the repoliticization of bare life (finding agency at the place where agency is deformed), it
needs to be said that so-called politics is already contained and marked by law through the
anthropogenesis that marks the juridification of life as the formal articulation between nature
and culture or potentiality and history.
Having observed this, everything becomes more complicated since life is thus produced in
the seemingly double mode of an unconditioned and a conditioned or qualified being. In this
sense the outside is not and cannot become avantage point for subversion, reform or critique,
it is already co-implicated in the process of metaphysical negativity that characterizes legal,
philosophieal, political and theological thought and institutions. Law itself in the Western
tradition has been thought in different ways as an empty and indeterminate concept akin
to the way in which this tradition has ended up thinking of being and life. In search for the
totalizability ofthe notions ofLaw and Life, law has been bereft of desire or interest. Instead
the law, perhaps, needs to be reconceived as a living law, a law that cannot be separated from
its life and vice versa.

Acknowledgement

The editor would like to thank the contributors for allowing permission for republication of
their work in this compilation, Peter Fitzpatrick for his support, Tom Campbell for his kind
invitation, as weIl as Dymphna Evans and Lianne Sherlock for their assistance, understanding
and kindness.

References

Agamben, Giorgio (1991), Language and Death: The Place 0/ Negativity, trans. Karen Pinkus with
Michael Hardt, Minneapolis, MN: University of Minnesota Press.
Agamben, Giorgio (1993), The Coming Community, trans. M. Hardt, Minneapolis, MN: University of
Minnesota Press.
Agamben, Giorgio (1998), Homo Sacer: Sovereign Power and Bare Life, trans. D. Heller-Roazen,
Stanford, CA: Stanford University Press.
Agamben, Giorgio (1999a), Remnants 0/ Auschwitz: The Witness and the Archive, trans. D. Heller-
Roazen, New York: Zone Books.
xxvi Agamben and Law

Agamben, Giorgio (l999b), Potentialities: Colleeted Essays in Philosophy, trans. and ed. D. Heller-
Roazen, Stanford, CA: Stanford University Press.
Agamben, Giorgio (2005), State ofExeeption, trans. K. Attell, Chicago, IL: University ofChicago Press.
Agamben, Giorgio (2009), The Signature ofAll Things: On Method, trans. L. D'Isanto with K. Attell,
New York: Zone Books.
Agamben, Giorgio (20IOa), The Saerament ofLanguage: An Arehaeology ofthe Oath, trans. A. Kotsko,
Stanford, CA: Stanford University Press.
Agamben, Giorgio (20 lOb), Nudities, trans. D. Kishik and S. Pedatella, Stanford, CA: Stanford
University Press.
Agamben, Giorgio (2011a), The Kingdom and the Glory: For a Theologieal Genealogy ofEeonomy and
Government, trans. L. Chiesa (with M. Mandarini), Stanford, CA: Stanford University Press.
Agamben, Giorgio (20llb), 'K.', trans. Nicholas Heron, in Justin Clemens, Nicholas Heron andAlex
Murray (eds), The Work ofGiorgioAgamben: Law Literature, Life, Edinburgh: Edinburgh University
Press, pp. 13-27.
Agamben, Giorgio (20 13a), Opus Dei: AnArehaeology ofDuty, trans. A. Kotsko, Stanford, CA: Stanford
University Press.
Agamben, Giorgio (2013b), The Highest Poverty: Monastie Rules and Form-of-Life, trans. A. Kotsko,
Stanford, CA: Stanford University Press.
Agamben, Giorgio (2015, forthcoming), The Use of Bodies, trans. A. Kotsko, Stanford, CA: Stanford
University Press.
Hölderlin, Friedrich (1969), Hälderlin Werke und Briefe (vol. 2), ed. F. Beißner and J. Schmidt,
Frankfurt-am-Main: Insel.
Watkin, W. (2013), Agamben and Indifferenee: A Critieal Overview, London: Rowman & Littlefield
International.

Bibliographical Note

Below are listed indicative only selections of secondary literature that are directly or indirectly
relevant to thinking the law with Agamben.

Indicative Monographs in English (in Chronological Order)

Wall, T.c. (1999), Radieal Passivity: Levinas, Blanehot, and Agamben, New York: State University of
New York Press.
Mills, C. (2008), The Philosophy ofAgamben, Stocksfield: Acumen.
De la Durantaye, L. (2009), Giorgio Agamben: A Critieal Introduetion, Stanford, CA: Stanford
University Press.
Murray, A. (2010), Giorgio Agamben, London: Routledge.
Zartaloudis, T. (2010), GiorgioAgamben: Power, Law and the Uses ofCritieism, London: Routledge/
Cavendish.
Kishik, D. (2012), The Power of Life: Agamben and the Coming Polities, Stanford, CA: Stanford
University Press.
Snoek, A. (2012), Agamben's Joyful Kafka: Finding Freedom beyond Subordination, New York:
Bloomsbury.
Watkin, W. (2013), Agamben and Indifferenee: A Critieal Overview, London: Rowman & Littlefield
International.
Abbott, M. (2014), The Figure of This World: Agamben and the Question of Politieal Ontology,
Edinburgh: Edinburgh University Press.
 Agamben and Law xxvii

Prozorov, S. (2014), Agamben and Polities: A Critieal Introduetion, Edinburgh: Edinburgh University
Press.
Whyte, J. (2014), Catastrophe and Redemption: The Politieal Thought o/Giorgio Agamben, New York:
SUNNY.
Attell, K. (2015), Giorgio Agamben: Beyond the Threshold 0/ Deeonstruetion, New York: Fordham
University Press.

Indicative Edited Collections (in Chronological Order)

Norris, A. (ed.) (2005), Polities Metaphysies, and Death: Essays on Giorgio Agamben 's Homo Saeer,
Durham, NC: Duke University Press.
Calarco, M. and De Caroli, S. (eds) (2007), Giorgio Agamben: Sovereignty and Life, Stanford, CA:
Stanford University Press.
Clemens, 1., Heron, N. and Murray, A. (eds) (2008), The Work o/Giorgio Agamben: Law, Literature,
Life, Edinburgh: Edinburgh University Press.
Murray, A. and Whyte, J. (2011), The Agamben Dietionary, Edinburgh: Edinburgh University Press.
Svirsky, M. and Bignall, S. (eds) (2012), Agamben and Colonialism, Edinburgh: Edinburgh University
Press.
Frost, T. (ed.) (2013), Giorgio Agamben - Legal, Politieal and Philosophieal Perspeetives, London:
Routledge.

Indicative Articles and Book Chapters Not in Edited Collections/Special Issues

Barbour, C. (2011), 'Swearing to God: Agamben 's "The Sacrament of Language"', Theory & Event,
14, pp. 2-11.
Chiesa, L. and Ruda, F. (2011), 'The Event of Language as a Force of Life: Agamben's Linguistic
Vitalism',Angelaki, 16, pp. 163-80.
Deranty, J.-P. (2004), 'Agamben's Challenge to Normative Theories ofModem Rights', Borderlands
(Online Journal), 3, at: http://www.borderlandsjoumal.adelaide.edu.auIVo1.3no 1_deranty_
Agambenschall.htm.
Faulkner, J. (2010), 'Innocence, Evil, and Human Frailty: Potentiality and the Child in the Writing of
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 Part I
Life and Sovereignty
 [1]
The Fading Memory ofHomo non Sacer
Anton Schütz

Has there been a time before homo sacer? A bios forfeited (proscribed,
banned, vogelfrei) and stripped of significance, reduced to zero-status
and at the same time unsacrificeable: how far back does the history of
this life disposed and disposed-of, supplied and confiscated, go? The
question is all the more inevitable as Giorgio Agamben does not sub-
scribe to the confident gesture with which Michel Foucault assigned a
date of emergence to Western modernity, a 'birth' of what he called
'biopolitics'. A clean-slate type discontinuity, particularly the idea of
modernity as innovation - whether the innovation is a point, or
whether it extends over more than a century, makes no decisive dif-
ference here - leaves one with the possibility of a calendar, of a
sequence of ages succeeding each other in one unique trajectory.
This is exactly what Agamben does not offer. Agamben's stakes in
Homo sacer are incompatible with the paradoxically soothing aspects
of an approach that deconstructs the Western episode in aseries of
successive and independent epigenetic creations - and it would
be tempting to draw the line through to Martin Heidegger on
Seinsgeschichte and historiality. Although Agamben is just as wary as
Foucault (from whom his work has doubtlessly received its most deci-
sive impulse, after Heidegger) of the implications of what has become
identifiable as the 'legal' or 'juridical' style of approaching politics
and especially biopolitics, and is just as wary of the legalism that
unconfessedly inspires a field like epistemology, the results both
philosophers reach with respect to historical 'method' - and, far more
importantly, to history itself - diverge significantly.
Foucault sees historico-political factuality as subject to watershed-
like historical discontinuities, and in consequence, before his turn
towards antiquity around 1980, sticks to the idea that every configu-
ration of Western culture as we know it can be fuHy traced back to its
modern origins. This is an idea which Foucault shared not only with a
vast majority of the Western left during the second half of the twenti-
eth century, but with the entire spectrum of 'progressive' elements.
4 Agamben and Law

The Fading Memory ofHomo Non Saeer 115

Agamben, on the other hand, thinks the sequence of events known as

'Western history' as a compassing phenomenon, as the ever unfolding
his tory and/or pre-history of Western modernity, rather than conceiv-
ing it as aseries of discrete, mutually closed ineidents in the way in
which Foucault does. A certain historical compromise that flourished
in Foueault's days under the sign of progressivism, and whieh finally
became Foucault's own target - for instance, in his critique of the
repressive hypothesis, and more generally in his parting ways with
Marxism - has never had any pure hase on Agamben. In spite of these
divergences (in part perhaps merely generational), what one should not
overlook is the fact that what stops Agamben from repeating Foucault
is less Foucault than those who repeat Foucault. Among the most
visible theoretieal steps linked, wrongly or rightly, to the name
Foucault is what might be called the 'there-is-always-something-that-
happens-just-before-or-around-1800' stanee. Once a provocative
move, it has, in the meantime, become a commonplace.
Audiences and minds have undergone, in the time since Foucault's
death, a rather drastic mutation whieh deserves to be noted, and needs
to be identified. What had enioyed massive publie-intellectual credit in
France, throughout the time that Foucault was teaching and writing
rhere, was an overall conception of the way the world was moving. Let
me call it the 'leftist-humanist Janus bifrons', and describe it as mildly
Marxist and at the same time resolutely conformist. Foucault had
recognised this as a mere compromise and rejected it, yet carefully
avoided ta king issue with it, limiting hirnself to making the distances
clear, for instance by insisting, on a methodologieal level, on the
superiority of small but demonstrable facts over large but false prin-
ciples. Foucault opted for the model of hard-core discontinuities, both
because this was heretical with respect to a prevailing intellectual con-
sensus which he despised, and because it meant joining forces with the
more ambitious, 'anti-humanist', forms of Marxism, such as Althusser
(even if Foucault almost denies the Althusserian part of his ascendancy
and presents his model on Nietzschean and subsidiarily Heideggerian
premises).
In the daily business of aglobai academic institution evolving under
the durable speIl of Foucault's work, the assumption that all eon-
stituent parts of the world as we know it are born somewhere around
1800 looms large.1t has dominated the history writing of the last third
of the twentieth century, for three decades of which an important part
of the historical profession mainly delivered birth certificates provid-
ing an all-but-unending series of institutions, achievements. cultural
 Agamben and Law 5

116 The Work of Giorgio Agamben

configurations, etc., with the confirrnation of its origin in modernity.

The major innovations responsible for the world as we know it,
whether technological or anthropological, scientific, pastoral or media-
historical, date from somewhere before or around 1800. In 2007, there
is no trace left of what might have been so irresistible about the stance
underlying this claim, when, from the late 1960s onward, clad in the
dignity of its provocativeness, it conquered the hearts and minds. We
are here confronted with a fact pertaining to the level where the disci-
pline of history becomes itself visible in its historicity - the 'history of
historiography' as the great Italian and English historian Arnaldo
Momigliano had famously termed it. The suggestion that we live in a
short and dense - 200 year long - genealogy of modernity is predicated
on a whole intellectual-political structure. This structure, with the
narrow relationship that connects it to the political history, has by now
melted away without remnant. French politicians who, in 2007,
den ounce the 'spirit of '68' are barking up the wrong tree.
One should not forget, on the other hand, that today's absolute
unavailability of a politico-legal perspective that would be at once
empirically acute and ethically acceptable provides as restrictive a
set of conditions as did its earlier availability. The question here is
simply whether the politically motivated philosophical thought
reacts to situations. If our answer is yes, as it is, we cannot mimic
surprise, when such a difficult question as to what happened during
the past two or three millennia of Western history will, in different
and incompatible historical circumstances, elicit different and
incompatible replies.
The point at stake here is not, obviously, the discrepancy between
Foucault's and Agamben's historical perspectives regarding, for
instance, biopolitics. Only - as their views are not simultaneous, but
responding to different situations - what becomes undecidable is
whether the discrepancy represents opposite viewpoints or rather dif-
ferent points in the history of a common, even identical project. If one
compares the present tense of Foucault's years to the present tense of
the ten or twelve years preceding 2007, the one characterised by pris-
oner revolts, homo sexual militancy and strike movements (to name
only a few fronts of action), the other by their pacification and inte-
gration into institutional everyday life, even their cancellation out
under the impact of new policies of 'outsourcing conflict' (of which
the war in Iraq is an example) - it becomes much less surprising that
even identical views might give rise to different positions, or at any
rate to different 'prises-de-position'.
6 Agamben and Law

The Fading Memory of Homo Non Sacer 117

Such a comparative exercise in present or short-term history is able

to show that philosophical thought, like everything else, has within
its present a specific Sitz-im-Leben which conditions its existence.
Contrary to the assumptions of a certain history of ideas the com-
patibility of different discourses within the social fabric is not nearly
as unproblematic as that of books on a bookshelf. It is true, by the
way, that even different minds are not always compatible, pace
Foucault (who, as it is well known, was interested in that and only
that wh ich makes it to historical visibility - minds were thus of inter-
est to hirn only to the extent to which they succeed in making them-
selves seen at the surface of history - of discourse). The Sitz-im-Leben
of Foucault's lesson was quite inseparable from those contemporane-
ous militancies and movements, which it would be difficult to hold,
today, that they have fully survived. Yet, apart from Foucault's
methodological specificities, there are other, possibly even more
massive differentiating factors. The media have changed their pres-
ence, increasing their strict economic dependency, while at the same
time intensifying their role as laboratory of election results. The uni-
versity has changed its structure. Most importantly, there had been a
general conviction, half a lifetime ago, which was omnipresent and
unproblematic, and which concerned something like the Western
global stewards hip, which was firmly in place both in its ethico-
political principle and in its geopolitical invulnerability.
It hel ps also to understand Foucault's polemical foregrounding of
discontinuities, his emphasis on the succession of epistemes, etc.
Foucault took up an active resistance against an omnipresent prefer-
ence for continuities if not for 'transhistoric objects' (Paul Veyne),
which, he felt, loomed large in his times. Superficially, that was of course
owing to Marxism and is no longer the case. It is true that, throughout
the modern age, consensus es - when 'alive and kicking' - tend to
modesty and low-key appearances, to painting their own self-portraits
in unremarkable colours: consensus larvatus prodit, to paraphrase
Descartes. What is common to Foucault's times, forty to twenty-five
years ago, and our own, is that both are characterised by the presence
of views widely shared, indeed incontrovertible and sacrosanct enough
to deny their specificity, their historicity, their merely 'artificial' consis-
tency. Their content is, however, hugely different. The factor which
Foucault was up against was a 'natural-Iooking' certainty predicated
on continuity; this is scarcely what we find ourselves confronted by
today. Today - and if this is not taken into consideration, there is
simply no way to understand the history-related moves of an author
 Agamben and Law 7

118 The Work of Giorgio Agamben

like Agamben - similar effects emanate, on the contrary, from a post-

natural certainty that emerges as a supplement of globalised technol-
ogy. A different, if equally mythologieal, horizon has opened up, one
based upon the idea that global self-programming is already in charge,
that needs are already provided for, that life is a question of access to
these provisions, that the age of Nature - or, more generally, the age of
default-regimes or continuities -lies behind uso In certain respects, the
well-known claims that we have outlived history is indistinguishable
from the claim that we have outlived Nature.
In this new setting, not continuity, but its opposite - namely media-
imposed discontinuity - is accredited wisdom. In Foucault's time, the
category of 'man' was only the most flagrant example of a whole
range of continuous or long-term history-related stable categories. In
the view that had been omnipresent, as something like a silent
anthem, in classrooms, textbooks and all types and sizes of secu-
larised successors to churches, man was the ultimate sire of norma-
tivity, tautology or 'non-Iearning'. It was subversive to maintain, at
the time, what Foucault maintained: namely, that history is best
understood as empty, as the indifferent whiteboard on which succes-
sive inscriptions succeed each other withour beginning or end. Today
- and no doubt partly owing to the success of Foucault's claims - what
underlies the ubiquitous anthem is no longer a claim or promise of an
integrity placed in 'man'. Instead, it is predicated on the disclaimer of
any claim, the cancellation of any pro mise or common horizon, of
any feature, in short, that would transcend the timelessly present
network of real-time performances.
It suffices to draw attention to these changed conditions and to
what one might call the new empire of bare performance which
results from them, in order to glimpse why the choice of following
Foucault in matters of strict historicity is today intellectually sterile,
why the 'from-something-around-1800-onward' stanza has lost the
subversive potential which it commanded a lifetime ago, and why
modernity-historicism (or postmodernism) is, in fact, today's stale
equivalent of the stale humanism of the first post-Second World War
decades. That is, it is part and parcel of the stew of outlived pro-
grammes that constitute the retrospective scholastic menu of 2007, so
different from earlier versions of the retrospective scholastic stew
both in its ingredients and in its overall fragrance. With respect to
Foucault, the step taken by Agamben is predicated on the undoing of
the strict historical time-setting of a group of basic Foucauldian cat-
egories - biopolitics being among them. Wherever an undoing of a
8 Agamben and Law

The Fading Memory of Homo Non Sacer 119

previously conquered and proudly asserted position is pursued in the

history of politico-Iegal thought, it immediately gives rise to further
questions. While some ask how to welcome it, others how to protect
themselves against it, there are also more important issues, such as:
why at all? why now? why here? why in this connection and not
another one?
In comparative perspective, Agamben's criticism of Derrida is
unquestionably much more complicated and philosophically complex
than his sharp, yet also sharply circumscribed, 'otherwise than
Foucault' move. What is obvious is Agamben's unrestricted admira-
ti on of deconstruction as a philosophical method that, by means of
its infinite renvoi to a text without outside, makes 'opinionating' irrel-
evant and unnecessary. Agamben's admiration, which coexists with
his philosophical critique of the deconstructive approach, has an
important role to play, even in the historical parts and aspects of his
work, and especially with regard to the regions of biopolitics, bare life
and homo sacer. One of the more astonishing features of the
history of global French philosophy in its FoucaultlDeleuzelDerrida
moment - as opposed to its BadiouIRanciere moment - was the inces-
sanr and faithful general respect paid to the demarcation lines which
these thinkers succeeded in drawing between each other. While some
moderate amount of fronrier traffic between Foucault and Deleuze
has existed for a long time, the number of border-crossings between
these authors, on the one hand, and the Derridians, on the other, had
been minimal and was limited - as far as I see without exception - to
the one early dispute about Descartes, philosophy and madness. 1
Although he never refers, as far as I can tell, to this canonical
dispute, Agamben in one sense takes side with Derrida against
Foucault's commitment to sharp historicisation. If Agamben, while
taking up a large number of Foucault's claims, no longer assumes that
the constituent parts of the world as we know it were born some-
where around 1800, it is at least tempting to see a passionate refusal
on the part of Agamben to take on the idea that one 'has to choose'.
Derrida's reaction to Foucault, directed against the historicisation of
madness, is epitomised by the claim that philosophy has always
involved as perilous and close a contact to the other side of Reason
as did madness at the brink of modernity. Agamben, similarly, argues
that biopolitics had emphatically not waited for modernity to set in:
neither for the emergence of the modern practice of gover-
nance/discipline, nor for the modern substitution of population for
territory.
 Agamben and Law 9

120 The Work of Giorgio Agamben

This is a crucial point, especially in the light of the fact that

Agamben's work, indebted to Heidegger in its relation to philosophy
or Western metaphysics as much as it is to Benjamin in its relation to
the messianic, remains, in its historico-political branch, unquestion-
ably indebted to Foucault. Agamben, by force of his 'faithless' atti-
tude, his picking and choosing, exposes himself clearly, no doubt
intentionally, to the ban of the guardians of borders, gates and iden-
tities; 'The struggle is not against God or supreme sovereignty ... but
against the angels, the messengers and the functionaries who appear
to represent it. '2 Even if Foucault's wrestling with the issue of his-
toricity, with the datedness of modernity, has certainly not passed by
Agamben unawares, the latter is obviously less interpellated by the
entire issue of historical campaigns of emerging newness which plays
such an overwhelming role in Foucault's account of modernity and
biopolitics. Agamben's own notion of biopolitics accordingly follows
an entirely different set of coordinates. It is, in fact, not easy to see
wh at people really mean when they find that something is wrong
about the fact that, while Foucault uses the notion of biopolitics in a
particular way, related to one group of archives and documents, to
one landscape of events or situations, Agamben uses it in another
way, and in relation to an at least partly different, and historically
much more extensive, substrate. The idea that of two people who
make claims about a particular object - the one maintaining that it
has only existed a short time, the other for a much longer time - one
of them at least 'must be wrong' seems to be based, at most, on some
commonsensical conviction and, in addition, on the idea that the
meaning of a word is subject to a sovereign decision, an idea best por-
trayed in Lewis Carroll's caterpillar. On a certain, exceedingly
humble, factuallevel this idea is certainly, if not right, at least desir-
able from the viewpoint of discourse-economy. Yet one can scarcely
avoid the question whether either of the two authors ever operated
on this humble level. If the answer to this question is negative, to
examine one of them on the basis of this type of expectation might be
a category mistake, if not simply a case of 'love's labour's lost'.
Furthermore, the idea of awarding the earlier author a special, privi-
leged position or mastery over the term he had coined first, simply
because he has done so, is itself not entirely obvious. Is it not, perhaps,
simply an illegitimate transposition of copyright law reasoning on a
question of a wholly different sort? What remains is the issue of the
most appropriate way - in the sense of the philosophically most
rewarding - of historically and conceptually formalising the problem
10 Agamben and Law

The Fading Memory ofHomo Non Sacer 121

of the intrinsic indeterminateness of the concept of biopolitics. The

risk was without any doubt already part of Foucault's initial wager of
short-circuiting, within one composite term, two of the most power-
ful root categories of a cultural-referential universe in order to create
a fitting label for a certain modern innovation. Were not the elements
far too rich in connections and references to do the work of a simple
label? On the other hand, of course, was the term not purposely
chosen by Foucault, in order precisely to abduct those culturally all-
powerful root categories from the seraglio of philosophy? Agamben,
of course, while deconstructing the notion of biopolitics and
acknowledging the powerful network into which it is plugged thanks
to the cultural omnipresence of its two components bi os and politics,
did not find any interest in pursuing the Foucault-Derrida conflict
(which, in a sense, was still a 'conflict of faculties': an attack 'against'
Philosophy, a riposte 'in defence of' Philosophy).
Another aspect that should be kept in mi nd in this connection is
the fact that the topics and academic disciplines implicated by
Foucault's and Agamben's work are less than favourable to the con-
struction of an axiomatic that would be valid once and for all -
whether or not one deerns this regrettable. It is true, of course, that a
William of Ockham would have wished us to be as parsimonious as
possible in our use of concepts and models, famously enjoining us not
to 'multiply' them beyond necessity, but it is no less true that, dealing
with exercises and investigations on matters that are highly and in a
sense even 'naturally' subject to contestation because of their politi-
cal implications, what is to be acknowledged is precisely the presence
of such a necessity. Nothing precludes that the presence of different
interrelating yet not fully compatible appraisals can be more instruc-
tive than the supposition that only one judgment can be ultimately
right. Foucault throws light on the shores of biopolitics at the deci-
sionist or decision-making level - the level of his famous phrase 'a
certain decision had been taken' in History of Madness - outlining the
new paradigm of Reason of the classical age. 3 Later on, Foucault
investigates biopolitics and the build-up of the new scientifically
domesticated, disciplined and de-metaphorised reference to life that
underlies it, with reference to its massive and ever-increasing histori-
cal effects over two centuries. He shows how the moment at which
the governmental care for population sets in marks a historical point
of no return.
Agamben, by contrast, operates at ground rather than shore level,
inspecting the continental shelf that joins the present to a much longer
 Agamben and Law 11

122 The Work ofGiorgioAgamben

history - precisely the one which Foucault had opted to treat as irrel-
evant. Yet, looking at Foucault's life work, one recognises that he was
first on both accounts: first not only in the sense that it was he who
coined the concept of biopolitics at the level of Western history of the
past two or three centuries, but also first in examining the level of the
'continental shelf' of life-related social practices. He is first, and
indeed unique, in his claim of learning and changing position, which
he upheld until the end of his life. Ir is dear that if one dismisses the
writing and lectures of his last five years as some sort of anecdotal
postscript, no real understanding of Foucault is possible. During
those final years, turning with increasing exclusiveness towards
Hellenistic and Roman Antiquity, Foucault suspended his own earlier
campaign in which he had substituted historical discontinuities for
the great narratives of continuity (whether theological, Marxist or
Whig). In his vast output of lectures and studies from these
years, Foucault, for the first time, leaves the relationship which
diverse moments and episodes of Ancient History are supposed to
entertain with later horizons (up to and including the present) open
and undefined.
In that sense the final Foucault is certainly among the precedents
of the narrative pur to work in Agamben's homo sacer. Clearly
Agamben substituted a new topic, one unconnected with Foucault's
main topics - madness, the care of the self, discipline, government.
Agamben takes up, at a later stage, the question of government, but
more immediately and fundamentally, that of biopolitics. He resitu-
ates the topic at the crossroads of three hitherto unconnected series
of concepts and observations: Foucault's work on biopolitics from the
1970s is one example; the concept of bare life as it appears in a group
of writings by Walter Benjamin from the 1920s is another; finally, the
homo sacer, Agamben's own philologically refined concept for the
Western institutional coinage of dispossessed humanity, is a third.
What do these notions have in common? The answer to this - apart
from the fact that each of them expresses the notion of an inconsis-
tent universallaw - is a legal order which, while suffering no excep-
tion as to its validity, at every point coexists also with its own
lawlessness. While there is nothing very surprising in the fact that
lawyers do not welcome this news as soothing, it is difficult to see
which are precisely the values that are threatened by such a claim.
How, in other words, could this historically focused and philosophi-
cally argued account be all that threatening to °law', as numerous -
especially lawyerly - reactions to them see m to suppose. Ir is not even
12 Agamben and Law

The Fading Memory ofHomo Non Sacer 123

new, or, if it is, the newness does not lie in the structural account of
rule and exception where it is often situated.
For Hans Kelsen, a twentieth-century legal philosopher and con-
stitutionalist - never mentioned by Agamben, who, in contrast, fol-
lowing Benjamin, relies on Kelsen's intimate adversary Carl Schmitt-
the condition of any legal order is the Grundnorm, a legal equivalent
of what linguists refer to as a shifter. In the same way in which the
shifter is not part of any of the messages it enables, so Kelsen's
Grundnorm is not part of the legal order: it is simply 'presupposed'
by any existing legal order. Kelsen describes the Grundnorm even as
a 'mere hypothesis' and, in later years, as a fiction. It is true that his
conception, which comes close to Agamben's concept of law as sus-
pended by astate of exception, encountered much resistance not only
among clerical and fascist natural lawyers throughout Europe, but
even from 'realist' jurisprudence scholars in the US.4 In short, if we
hear how much the notions of exception and state of exception are
professionally unacceptable, that they represent a shocking insult to
lawyers, it is by no means all that original. Kelsen, the 'cleverest legal
theorist of the twentieth century' (as he was called in a 2004 meeting
by the legal theorist and historian Tony Honore, co-author of H. L. A.
Hart, Kelsen's competitor) had, apparently with no less insulting
effect to many lawyers than Agamben's short study, anticipated it.
What is new is not the notion of exception per se, but the ambivalent
and fascinatingly insight-provoking notion of the ban. Agamben
draws this notion from an earlier work of J.-L. Nancy, and makes it
the cornerstone of a new, unlawyerly, understanding of law.
From Agamben's dialogues with a whole gamut of disciplines - an
aspect of Homo Sacer that, as we know, has chagrined many a
devoted specialist in the trajectory of its wide-ranging argument - two
results emerge. On the one hand, a taking, a Nehmen, has taken place:
a 'Nahme' in Carl Schmitt's idiom, who, however, uses the term exclu-
sively in connection with territory, as in Landnahme. In the subject of
bare life, subjection has become indistinguishable from dispossession,
from exposure. The crucial point in understanding the structure at
work is uncomplicated enough. In the homo sacer, the taking fails to
move on to live up to its completion, namely the effective taking of
the subject's life. 'Taken' or 'genommen', the life is, not in the literal
sense of being killed, but in the figurative sense of being degraded or
abandoned to another, insignificant, indifferent life.
One aspect not explicitly dealt with by Agamben is the strictly legal
dimension of absolute exposurelbare life: what kind of transgression
 Agamben and Law 13

124 The Work ofGiorgioAgamben

is constituted by the fact of attributing significance to life, or espe-

cially to the taking of life, if the life at stake had been legally - that is,
correctly, validly - deprived of its right to being of significance? A
dear ca se in point here is the extraordinary disproportion evident in
the amount of fuss made about casualties in armed conflicts today.
The normaley of this disproportion normatively constitutes as pre-
posterous the 'humanist' idea of the value of any human life whatso-
ever. The homo sacer is exactly this: devalued life, life as ce qui reste,
a remnant that happens, not to 'be', but to be 'around'. Dispossession
without killing results in a provisional, precarious, merely factual
existence. 5 This - to the extent to which relevant modern and current
examples do not come anywhere dose to the horizon of sacrifice -
inspires many readers of Agamben to ask whether we are effectively
confronted with Festus's category of homo sacer and not rather his
secularisation. 6 The majority of academic lawyers involved in the
attempt of feeding Agamben's thought into an academically or con-
sensually sustainable critical jurisprudential world-view have never
quite overcome the obstade raised by what they perceive as the reli-
gious component of the 'sacrifice' involved in the paradigm of the
homo sacer. The Agambinian double formula, 'can be killed without
breaking the law' and 'cannot be sacrificed', leaves them speechless.
So me delve into early religious history, trying to unsettle the author
with the means of 'internal critique'. Yet Agamben here refers to the
legendary vocabulary of early or 'archaic' Roman institutions only in
order to tap its potential for elucidating a situation, a fate, a ca se of
fact, that does not cease to reappear through a large range of exem-
plary figures, each of them throwing its light upon the ban-structure
according to which law has been instituted all along the extended -
but in precisely this respect uneventful - history of the West.? To the
gods Agamben (and Festus) assign no other than a strictly institu-
tional or structural standing, their quality of being addressees of
prayers and sacrifices, their function as a raison d'etre not only of
priestly power, to be sure, but of power as such. A structural-
functional attitude with respect to 'religion' that is expressed with
equal and rather uncanny perfection by a number of eminent elder
statesmen of the Roman tradition, such as Tacitus when he vituper-
ates against ethnic or religious groups who refuse to participate in the
sacrifices (as everyone knows, there had not been human sacrifices for
a long time by Tactitus's era).8 The sacrificial horizon from which the
homo sacer takes his name is likewise purely structural; this is why it
is pointless to body-search the sacred human to see whether he bears
14 Agamben and Law

The Fading Memory ofHomo Non Sacer 125

the religious ;e-ne-sais-quoi which supposedly constitutes particular

social bodies or experiences as religious social bodies or experiences.
Yet it is not only the question of religion that is absent from the homo
sacer thesis. It is equally incorrect to suppose that its core reference
resides in the sacrifiee. Taken in itself, the sacrifice is of no impor-
tance, eompared to the sacrificial institution's late, derailed, fer-
mented manifestations, its Schwundstufen or zero degrees. The
manifold and heterogeneous incumbents of the homo sacer role, dedi-
eated but not saerificeable, who roam the eommon abode are read-
able as such Schwundstufen.
The expression homo sacer is not religious and fails to correspond
to religious saerifice or any other notion of religious terminology. It
should be understood as equidistant from or indifferent to realities
both religious and seeular. As Agamben explains in Profanations, the
homo sacer corresponds to a different divide, the divide between the
sacred as opposed to the profane. 9 Whereas the first division refers to
a eertain phenomenology of social history, which here takes the
aspect of an impoverished version of the Enlightenment mapping
where the secular stands for the movement forward and the religious
for the legacy of the past, the seeond division, between saered and
profane, is consistent with striet legal terminology, with the change of
status before/without devotion as opposed to after/under the impact
of devotion. This is the reason why it fits into Agamben's reading of
Western history, whieh is striet1y law-related. The saeredness of the
homo sacer transforms his life by banning it and abandoning it to a
neeessarily insignificant death. This tension in the semantics of the
word 'abandon' between its two components 'to leave somebody to
hirnself', 'to give somebody into the ban' - two clearly diverging
meanings wh ich the word nonetheless authenticates equally and
simultaneously - is not diseussed. To declare an individuallawless,
deprived of legal protection, is equivalent to suspending a eertain type
of institutional flourishing, of effective legal rule or command: rather
than clamping down on the eulprit, the legal order chooses to 'with-
draw' from hirn, limiting itself to revoking certain rights it had
granted, thereby simultaneously falling back into a status quo ante.
This amounts only to a relatively or at least potentially harmless
partial caneellation or self-cancellation of the legal order, a down-
grading of the level of legal protection, a withdrawal of the legal
order, a 'deregulation'. There is, however, undecidably, another sense
of lawlessness as weil, which is entirely located within the legal order,
and aecording to which lawlessness in itself is registered as a legal
 Agamben and Law 15

126 The Work of Giorgio Agamben

status. Instead of being a mere exclusion or revocation from a tide or

a right, of a dismissal out of the commonwealth into the legally
untouched state of nature, the lawless, or the excluded, here remain
perfecdy 'included' in the legal order, as lawless and no longer enjoy-
ing protection. All this constitutes the positive predicament of 'ban'.
While, technically (and logically) speaking, lawlessness is thus a
perfecdy negative determination, the non-role wh ich embodies law-
Iessness is positively identifiable, and so is the life that awaits its
incumbent.
Agamben's wager that the two meanings of abandoner (to
abandon) and a-ban-donner (to banish, to outlaw) secretly but factu-
ally coincide is predicated on a strong presupposition of 'law's
integrity' (at least in Friedrich earl von Savigny's sense: law under-
stood as man's life if it is considered from a certain vantage point).
The legal order 'covers' human life entirely, according to this view,
not leaving any free space, any remaining space that would be open
to being colonised by law (or, on the contrary, to be preserved against
such a colonisation). As in the ca se of Pandora's box, the gate of the
law is wide open, and the history of its opening is irreversible. No way
leads back to aspace without Iaw - and therefore without abandon
and bare life - back to the homo non sacer. The integrity is, however,
the effect of an incessant polar tension, and should not be mixed up
with the other claim, namely it is an integrity only in the sense that it
is accompanied by an outside, a potential or actual exception, that it
presents itself at every point as the bipolar tension of nomos and
anomia. 10 It is this polar tension which Agamben refers to under the
name 'ban'. The law of lawllawlessness: one 'abandons always to
law', as Agamben states quoting Nancy.u
Agamben find a hermeneutics of the inescapable 'Pandoran' ubi-
quity of law in Kafka's 'Before the Law' .12 Most of this tale's many
interpretations are impressed by the tragic aspect of the story, reading
it as the tragedy of a person who fails to gain access to what he desires
most, namely 'entry into the law'. However, right from the start, the
gate of the law stands wide open. The guardian forbids the man to
enter, yet at the same time leaves the man to enter in spite of the for-
bidding words. The man chooses to stay at the gate. This is, in asense,
the surprise of the story (most people that any reader has met in her
life would doubdessly have entered at some point). Yet it is also the
reason why the story can go on, and can become the biography of at
least the whole mature part of the man-from-the-countryside's life. In
the end, or at the moment at which the man is close to his end, the
16 Agamben and Law

The Fading Memory ofHomo Non Sacer 127

guardian closes the door to the law. Looking back at his life, now,
does it become clear that the law has been the main if not the sole
focus of the man? Yes, as far as his social exchange is concerned. Yer
it is essential to be more precise here. The role that the man from the
countryside assigns to the law has been to provide the unique topic of
an extended, indeed life-Iong, conversation with the guardian at the
open gate of the law. The point he re is of course the man's steadfast
refusal to give the law any other role in his life, apart from that of
being the topic of his conversation with the guardian. To be that topic
is the only role the man from the countryside assigns to the law. And
it is in virtue of this unapparent restriction that Kafka's story about
the man from the countryside offers Agamben (as before hirn, Walter
Benjamin, much to Gershorn Scholem's displeasure)13 the occasion of
distancing hirnself from any hyperbolic interpretation of the law, and
especiaIly from any prematurely tragic interpretation of the man's
failure to penetrate into the law. 14
In spite of one of the mottoes preceding the first chapter - Savigny's
famous line on law and life - Agamben never approaches the
intricacies of legal-historical modernity, the advent of legal posi-
tivism, but rather inscribes this matter into a more 'general' philo-
sophical (Heideggerian) account of an ever-uncompleted end of
Western metaphysics. Law here becomes the paradigm of the unten-
able compromise between an exhausted raison d'etre and the speIl
which nonetheless it continues to exert. Agamben denounces a
common pattern of law's continuation as legal zero degree (or
Schwundstufe) as the philosophically insufficient solution of the
problem posed by law; what Agamben opposes is the idea of endow-
ing the law with the dignity of being its own negative representative
by the idea of investing it with the role of being its own sign or pseu-
donym or, finaIly, the monument of its own disappearance. In
Agamben's eyes, the insufficiency of this solution manifests itself not
only through the aura of unthinking tragicality which it exudes, but
also through the admittedly illegitimate, i.e. unavowable, mode of
being which results from this spectral condition. Kafka's story and its
interpretations offer a strong ca se in point.
This anti-tragic bent of Agamben's thought can be seen at work in
other connections as weIl. It is, it might be suggested, also decisive for
the fact that crime is far less central to the themes touched upon by
his studies than the non-criminal facts linked to the abandonment,
exposure and dispossession of survivors. The volume Agamben has
dedicated to Auschwitz 15 has been answered, in France, by a book of
 Agamben and Law 17

128 The Work o( Giorgio Agamben

not far from the same size, a volume of substantial, sharp and in a
sense unforgiving yet understanding and astute criticism. 16 This is
neither surprising nor difficult to understand; yet it should be
pointed out that there is no clue in Agamben's work that would allow
us to construe his emphasis, especially regarding the figure of the
Muselmann, as being, in one way or the other, at the expense of those
murdered in the same or other concentration camps. Nonetheless,
Agamben rejects the idea that the division between death and life is a
sufficient, rather than only a necessary, condition of an appropriate
ethical take on the question of Auschwitz. The praxis of the reference
to death and destruction in the advanced society of the spectacle is
patently characterised by the fact that destruction and death, or spe-
cific instances thereof, have been instrumentalised to render plausible
actions and agendas that would otherwise not resist an examination
of their ethical or legal acceptability.
Agamben reacts to this situation by referring to 'elimination'
rather than death or destruction. How should we understand this?
Elimination, in the case of the homo sacer, should be taken in the
sense of being erased from the book of life, according to the biblical
passage in Exodus 32. The opposition of life and the book-of-life to
wh ich I am referring means the distinction and mutual dependence of
life and its code-duplication, life and that which it is taken to stand
in far. Freedom, roaming freely, are institutional attributes which
pertain to the 'book of life' rather than to 'life itseIf'. They are not
superposable with factual or functional appropriateness. 17
The question of the homo non sacer looks easy, as if a positive
answer to its possibility would result, simply and in an almost self-
explanatory manner, from the fact that man can, at any rate, not be
said to have entered the arena of history as homo saceT, that man
cannot have been created as homo sacer. Yet the intricate internal
structure of the notion involves too many levels of negation to allow
such a clear-cut reply. The construction of the homo saceT throws its
shadow forward - in the sense that it categorically excludes the imple-
mentation, even the elaboration, of a political programme that would
allow the phenomenon to be got rid of, as the genealogy of the advent
of the homo saceT leaves no doubt that such a remedy would re-enact,
precisely and point by point, the process that has led to the phenom-
enon's appearance in the first place. But also backwards. 'There is an
infinite amount of ho pe - only: not for us', as Kafka said to Max
Brod. In matters of the homo sacer this means that once the division
between status and life has inscribed itself, the possibility of becoming
18 Agamben and Law

The Fading Memory ofHomo Non Sacer 129

again - of teaching ourselves to become again - homines non sacri has

shut down behind uso

Notes
1. This well-known dispute was triggered by a passage of Foucault's 1961
Folie et deraison - Histoire de la folie a l'age classique, where the
Descartes of the First Metaphysical Meditation is taken as representa-
tive of the rule of Reason proper to classic rationality and the operations
which the classical age assigns to madness; Derrida's reply, a conference
paper 'Cogito et histoire de la folie' in 1963 (integrated, in 1967, into
Writing and Difference), deconstructs the divide, asserting a common
and unique origin to both Madness and Reason. Foucault's riposte 'This
Body, This Paper, This Fire' (published in 1972 as an appendix to the
second edition of Madness and Civilization) uses Nietzsche's critique of
priestly pro domo thinking to push Derrida ioto the position of an apol-
ogist of Philosophy as a discourse of power. The rudimentary nature of
the results of this fascinating but insufficieot debate leaves a wide terri-
tory uncharted. Is it possible that part of the scandal of Agamben's
Homo sacer lies in its constantly moving sides between Foucault's his-
toricity and Derrida's historiality, when most other interpreters have
learned to stay put in one or in the other position?
2. Cf. (K), 11, 7, in this volume, p. 25.
3. Michel Foucault, History of Madness, ed. Jean Khalfa, trans. Jonathan
Murphy and Jean Khalfa (London: Routledge, 2006), Ch. 2.
4. Cf. Julius Stone, Legal Systems and Lawyers' Reasonings (London:
Stevens, 1964).
5. The primary object of this exposure is, in ancient history, the infant:
'The killing of infants is generally considered as an indifferent action
morally and emotionally, as the infant does not yet participate in the life
of the social group. As long as it has not been integrated, through the
required rituals, into the community, as long as, first of all, it has not
been given a name, everything happens as if it did not exist; its disap-
pearance, then, even fails to provoke what we call "natural feeling" "
Pierre Roussel, 'La famille athenienne', Lettres de l'Association
Guillaume Bude (Paris), Vol. 9 (1950), p. 26.
6. If the question of bare life and 'auspicious life' (or whatever other term
one chooses to refer to bare life's 'opposite') involves the difference a life
makes, thus the attention it commands, it is essential to specify that the
distinction refers to an effectively mobilisable attention in the present,
rather than a discursively alleged memory of the past. Memory, and
interna I states generally, are unable to test or document precariousness
or exposure. A sequence from Berthold Brecht's play Mann ist Mann
illustrates what is at stake at the threshold of bare life. 'Und wozu auch
 Agamben and Law 19

130 The Work of Giorgio Agamben

immer er umgebaut wird' ('and whatever he is transformed into') is said

about the protagonist, a job-seeking proletarian, 'in ihm hat man sich
nicht geirrt' ('there is no need to correct one's views about hirn'). With
shrill pseudo-optimism Brecht speaks, in 1920, of 'transformation', in
order to point to the fact that prevailing views on lives subject to prole-
tarian conditions are unspecific or callous enough to prevail, no matter
the fate of their object. Brecht here takes issue with - or rather offers an
explanation of - man's indestructibility. 'Man, being indestructible, can
be infinitely destroyed,' Maurice Blanchot, quoted in Giorgio Agamben,
The Time that Remains: A Commentary on the Letter to the Romans
(Stanford, CA: Stanford University Press, 2005), p. 73.
7. The frequent contention that this equals playing the long since obsolete
card of 'universal history' mixes up universality with globalisation and
history with genealogy. Agamben does claim that a structure of
immemorial occidental standing, of which it would be easy to prove that
it is subject to 'globalisation', underlies a complex bipolar tension of
which he proposes a genealogical account - not, however, the history of
its meaning. Agamben's topic offers the concept of law as ban, a concept
of law which he subjects to a vast hermeneutic exercise that involves
both sovereignty and bare life. This can be interpreted as an overall
biography of the Western episode or, alternatively, as a redrawing of the
starting line of Western modernity. Either way, we are dealing with the
history of a singularity, where it remains difficult to spot a 'universal'
character; the plausibility which accretes to the argument from the fact
that the singularity has become subject to globalisation deserves to be
considered spurious.
8. Tacitus, Histories V.13.1, here quoted after the French edition, Histoires,
ed J. Hellegouarc'h and H. Le Bonniec (Paris: Les Belles Lettres, 1992),
p. 86, where Tacitus criticises the Jews for being enernies of religious
practices.
9. Giorgio Agamben, Profanazioni (Rome: Nottetempo, 2005); trans. as
Profanations (New York: Zone Books, 2007).
10. Giorgio Agamben, State of Exception (Chicago: Stanford University
Press, 2005).
11. The formula 'quantum in se est' - 'as far as itslone's capacities reach' -
supplements and nuances numberless propositions in Spinoza's Ethics.
In fact, the formula itself comes close to an expression of ban or
abandon: it denies any standing to transcendence or providence, but
sticks to a zero degree of legality, just enough to prescriptively state
every entity's abandonment to the law/exception compound. On
another level, twenty-first-century society is portrayed in Zygmunt
Bauman's notion of a liquid society. In their successful pages, Bauman's
books offer an apt description of contemporary sociological conditions
of life abandoned. Cf. Anton Schütz, 'How aufarbeiten 'liquid society'?
20 Agamben and Law

The Fading Memory of Homo Non Sacer 131

Zygmunt Bauman's wager', in Jiri Priban (ed.), Liquid Modernity and

Its Law (London: Ashgate, 2007).
12. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life
(Stanford, CA: Stanford University Press, 1998), eh. 4, 'Form of law'.
13. Gershorn Scholem, in one of his first letters on the topic of Kafka, crit-
icises Walter Benjamin's attempt of interpreting Kafka's work without
conceding fundamental importance to the legal reference. Cf. Walter
Benjamin-Gershom Scholem, Briefwechsel 1933-40, ed. Gershorn
Scholem (Frankfurt: Suhrkamp, 1988), p. 117.
14. Ibid.
15. Giorgio Agamben, Remnants o{ Auschwitz: The Witness and the
Archive (New York: Zone Books, 1999).
16. Philippe Mesnard and Claudine Cahan, Giorgio Agamben a l'epreuve
d'Auschwitz (Paris: Editions Kirne, 2001).
17. As a reference to the uncoded and uncharted, ever revocable, merely fac-
tuaHy accessible region in which alone the notion of bare life unfolds its
meaning, see, apart from the sources given in Agamben, the term pro-
letariat in its use by Marx. As in Benjamin's 'bloßes Leben', 'bare life'
should be maintained as the correct translation of nuda vita. Translating
nuda vita as 'naked life' or 'nacktes Leben' inflates it with a dramatisa-
tion that seems incongruous; in German, it also triggers the association
with the common phrase 'mit dem nackten Leben dal'onkommen' ('to
save one's naked life'), where 'life' figures as a 'saveable' good, an object
of ownership or capital open to enjoyment.
References

Introduction

Agamben, Giorgio (1991), Language and Death: The Place 0/

Negativity, trans. Karen Pinkus with Michael Hardt,
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Agamben, Giorgio (1993), The Coming Community, trans. M.

Hardt, Minneapolis, MN: University of Minnesota Press.

Agamben, Giorgio (1998), Homo Sacer: Sovereign Power and

Bare Life, trans. D. Heller-Roazen, Stanford, CA: Stanford
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Agamben, Giorgio (1999a), Remnants 0/ Auschwitz: The

Witness and the Archive, trans. D. HellerRoazen, New York:
Zone Books. Agamben, Giorgio (l999b), Potentialities:
Colleeted Essays in Philosophy, trans. and ed. D.
HellerRoazen, Stanford, CA: Stanford University Press.
Agamben, Giorgio (2005), State ofExeeption, trans. K.
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Agamben, Giorgio (20IOa), The Saerament ofLanguage: An
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Radieal Passivity: Levinas, Blanehot, and Agamben, New
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Prozorov, S. (2014), Agamben and Polities: A Critieal

Introduetion, Edinburgh: Edinburgh University Press.

Whyte, J. (2014), Catastrophe and Redemption: The

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Attell, K. (2015), Giorgio Agamben: Beyond the Threshold 0/

Deeonstruetion, New York: Fordham University Press.

Indicative Edited Collections (in Chronological Order)

Norris, A. (ed.) (2005), Polities Metaphysies, and Death:

Essays on Giorgio Agamben 's Homo Saeer, Durham, NC: Duke
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Calarco, M. and De Caroli, S. (eds) (2007), Giorgio

Agamben: Sovereignty and Life, Stanford, CA: Stanford
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Clemens, 1., Heron, N. and Murray, A. (eds) (2008), The

Work o/Giorgio Agamben: Law, Literature, Life, Edinburgh:
Edinburgh University Press.

Murray, A. and Whyte, J. (2011), The Agamben Dietionary,

Edinburgh: Edinburgh University Press.

Svirsky, M. and Bignall, S. (eds) (2012), Agamben and

Colonialism, Edinburgh: Edinburgh University Press.

Frost, T. (ed.) (2013), Giorgio Agamben Legal, Politieal

and Philosophieal Perspeetives, London: Routledge.
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Collections/Special Issues

Barbour, C. (2011), 'Swearing to God: Agamben 's "The

Sacrament of Language"', Theory & Event, 14, pp. 2-11.

Chiesa, L. and Ruda, F. (2011), 'The Event of Language as

a Force of Life: Agamben's Linguistic Vitalism',Angelaki,
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Deranty, J.-P. (2004), 'Agamben's Challenge to Normative

Theories ofModem Rights', Borderlands (Online Journal),
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Faulkner, J. (2010), 'Innocence, Evil, and Human Frailty:

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Fitzpatrick, P. (2001), 'Bare Sovereignty: Homo Sacer and

the Insistence ofLaw', Theory and Event, 5. DOI:
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Fraser, D. (1999), 'Dead Man Walking: Law and Ethics after

Giorgio Agamben's Auschwitz', International Journal 0/
the Semioties 0/ Law, 12, pp. 397-417.

Heller-Roazen, D. (1999), 'Editor's Introduction: "To Read

What Was Never Written"', in Giorgio Agamben,
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Stanford University Press, pp. 1-23.

Humphreys, S. (2006), 'Legalizing Lawlessness: On Giorgio

Agamben's State ofException', European Journal
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Jenkins, F. (2004), 'Bare Life: Asylum-Seekers, Australian

Politics andAgamben's Critique ofViolence', Australian
Journal 0/ Human Rights, 10, pp. 79-85.

Johns, F. (2005), 'Guantanamo Bay and the Annihilation of

the Exception', European Journal 0/ International Law, 14,
pp. 613-35.

Kisner, W. (2007), 'Agamben, Hegel and the State

ofException', Cosmos and History: The Journal 0/ Natural
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Kohn, M. (2006), 'Bare Life and the Limits ofthe Law',

Theory & Event, 9. DOI: 10. 1353/tae.2006.0027.
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About the authors

John Lechte (Doctorate Univ. Paris VII) is Professor of

Social Theory (with Personal Chair) in the

Department ofSociology at Macquarie University in

Australia. He has written widely on continen

tal theory, particularly the thought ofDeleuze, Kristeva

and Agamben; theories ofthe image; and

new approaches to human rights and the rights of refugees.

He is the author of a number of major

works including the best selling textbook Fifty Key

Contemporary Thinkers (Routledge, 1994)

which has since been reprinted five times, published in its

2nd edition and has been translated into

many different languages. He is currently working on a book

on Agamben and Human Rights (with

Saul Newrnan) for Edinburgh University Press (EUP) [email:

john.lechte@mq.edu.au]

Saul Newrnan (PhD UNSW) is Reader in Political Theory in

the Politics Department at Gold

smiths University ofLondon. He has written widely on

continental political and social theory and

radical political thought, including on power, sovereignty,

democracy, social movements, human

rights and security. He is best known for his work on

'postanarchism'. He is the author of a number

ofbooks, including From Bakunin to Lacan (Lexington Books,

2001); Power and PoUtics in Post

structuralist Thought (Routledge, 2005); Unstable

UniversaUties, (Manchester University Press

2007); PoUtics Most Unusual: Violence, Sovereignty &

Democracy on the War on Terror (co

authored with Cox and Levine) (Palgrave 2009); The

Politics of Postanarchism (EUP 2010); and

Agamben and Human Rights (with John Lechte; EUP, in press),

[email: s.newman@gold.ac.uk]
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