Notes

The thesis of this criticism is that the modern biopolitical paradigm means any move
towards reform in the context of criminal justice only functions to make the violence
of the carceral system more insidious. For example, the Ryan evidence says that police
reform historically only serves to make the police look more ethical, even as
surveillance powers of police increase. There is also a broader criticism of the state
intrinsic to this k which argues that any time the state engages in inclusive praxis the
state simultaneously exclude other bodies, meaning that the reliance on state based
policy guarantees endless violence.

The problematization alternative functions as an alternative orientation towards

criminal justice that argue instead of looking for practical policy solutions, we should
seek to disrupt the ways that particular systems of power are constructed. The
evidence uses examples of movements within French prisons that used rhetoric to
problematize the ethicality of prisons at all, rather than getting trapped in the
discourses of reform.
Links
 Police Reform Link
Understanding criminal justice reform as biopolitical as opposed to geopolitical
demonstrates that reform efforts are merely ways to create a more effective “policing
web,” or a “civilian military assemblage” that ultimately increases state power.
Ryan, 2016 (Barry, Senior Lecturer in International Relations at Keele University, “Becoming
Motenegrin: biopower, police reform and human rights.” The International Journal of Human Rights 21
March 2016) 3-5

Biopolitics of police reform As a frame of analysis, biopolitics is usefully contrastable with geopolitics.
Whereas geopolitics is concerned with strategies of power over territory, biopolitics is concerned with
strategies of power that operate on the welfare of a population within that territory. The term was
developed by the French philosopher Michel Foucault, whose studies of liberal penal reform in the
eighteenth and nineteenth centuries revealed experimental techniques of disciplining and improving the
behaviour of inmates through the deployment of a more strategic approach to incarceration. Rather
than locking prisoners into cramped, disease ridden cells where death was commonplace, reformers
argued for a new regime undergirded by a highly effective and efficient structure of surveillance which
would grant the prisoner freedom to move around the prison. Freedom to move, it was proposed,
inculcated individual accountability, internalising the locks of the solitary cell in a system that allowed
authorities to perpetually monitor the improvement of the prisoner from a distance; ‘morals reformed –
health preserved – industry invigorated – instruction diffused – public burthens lightened’ boasted
Bentham who is credited with the original blueprints.18 Adopted for hospitals, schools and factories, the
Panopticon became a more generalised schematic of governance that gradually ‘spread throughout the
social body’ to strengthen society, ‘increase production, develop the economy and raise the level of
public morality’. 19 The major contribution Foucault made through these studies was to show how
techniques of military discipline liberalised and infiltrated civilian institutions and later became
embedded throughout society. This rationality of governance, which he termed biopolitics, The came to
constitute a mode of political power exercised through modern Western societies, producing through
law, custom, force and ethics to produce calculable, rational, governable liberal subjects.20 The
schematic of Bentham’s Panopticon, Foucault argued, ought to be understood as a metaphor for the
profound epistemological shift in the exercise of sovereign power that occurred with the rise of liberal
values in the nineteenth century. As Foucault outlines, the liberal state differed from its predecessor in
terms of its methods to secure space. The problem of sovereignty, he wrote, is ‘no longer of fixing and
demarcating the territory, but of allowing circulations to take place, of controlling them, sifting the good
from the bad, ensuring that things are always in movement … but in such a way that the inherent
dangers of this circulation are cancelled out’. 21 Early radical liberalism conferred on this emergent
modern subject rights that were irreducible to an economic model premised on the productive power of
societal and individual freedom.22 Sovereignty had become a managerial rather than a patrimonial
exercise of power under the cameralists of the eighteenth century, who saw the state as a machine and
the ruler as the foreman for whom rule emanated from committees, bureaux, inspectors, statisticians
and by other experts.23 As mercantilism gave way to free trade the break with the authoritarian
decisionism of the Leviathan sovereign ruler who ruled down on a passive society was no longer
appropriate to a framework of governance that required self-governing, responsible, disciplined, and
above all, rational rights bearing subjects. In Foucault’s lecture series, On the Birth of Biopolitics, 24 he
argues that two conceptions of freedom arose from this epistemological break in sovereign rationality: a
revolutionary juridical definition of freedom where the individual was deemed to be in possession of
certain freedoms; and a utilitarian definition of freedom which asserted a limit on the practices of public
authorities over the civil society. These two accounts of freedom, Foucault insists, had heterogeneous
histories. Nonetheless it was the latter formation which persisted to mark out modern freedom, so that
governmental utility is used to gauge the juridical limitation of public authorities. ‘Since the beginning of
the nineteenth century we have been living in an age in which the problem of utility increasingly
encompasses all the traditional problems of law’. 25 The important implication arises that sovereignty is
not so much a question of legitimacy, but of effect, of success. Contemporary sovereignty therefore
serves to administer life as a sort of economic asset amidst the turbulence and uncertainty generated by
the market based economy. In other words, an awareness of biopolitics allows us to contest the idealism
of a linear rule of law dividing wrong from right. Instead it outlines a complex assemblage of pragmatic
discretionary powers; a non-linear radically contingent array of interventions and orders that are
continuously shifting in a grey zone where wrong and right is subject to the interpretative capacity of
administrative, technical and security experts.26 It is in such conditions of liquid modernity27 that the
rule of law contends with, supports and is utilised by what Walter Benjamin termed the rule of police.
28 Nikolas Rose has pointed out that the rationality of governing through the norm of freedom required
a thorough knowledge of the population of the sort that only a policing agency could collate and
process.29 Consequently, police power, understood as the activity of data gathering and sharing,
includes not only the police officer, but, for example, the social worker, the psychiatrist and the
probation officer. Thus an assemblage of police relationships can be found, as Foucault recounts, at the
birth of modern police in the eighteenth century.30 Importantly, the rise of police power coincides with,
indeed participates in, the discovery of ‘population’ as an object of statistical survey. Based on the
assumption that by knowing the essence of things one can improve them so as to maximise their
potential for economic and political utility, liberalism requires knowledge for ceaseless reforming. 4 B. J.
Ryan Downloaded by [University of Otago] at 17:34 04 June 2016 Biopower is constituted by the
capacity to improve minds and bodies by tinkering with the institutions and agencies that regulate
human behaviour.31 Dillon reminds us that a liberal life cannot be guaranteed without a security
apparatus which regulates life around a terrain of values, demarcated as being the essence of a (good)
human.32 More importantly it must gather this knowledge, from a distance, without disturbing the flow
of people and things that maintain the health of the economy. As Bell describes it; ‘biopolitical
governance emphasizes indirect forms of rule through state agencies that govern “at a distance”
through various regulatory protocols’. 33 Law enforcement is consequently less concerned with
upholding timeless, fundamental ideals, than it is with the pragmatics of configuring a network of
relationships to more effectively know and manage the life processes of its population. Brodeur has
referred to this in terms of a policing web34 – a civilian-military assemblage that processes what has
been described as the ‘production of freedom’. 35 As Evans forcefully argues, ‘biopolitical regimes of
security governance have always revolved around threats to existence’. 36 If needs be, such a regime
ought to withdraw these freedoms until such time as the environment is once again safe. The imperative
to secure these rights, which form the existential undercurrent of a liberal market economy, demands a
highly integrated, dynamic, networked police apparatus formed around knowledge, planning,
surveillance and, of course, intervention. That is, it requires a civilian-military assemblage capable of
generating data on its population, knowing the parameters of its normal behaviour and monitoring
deviance that constitutes a risk to its mobility. Thus, as Foucault’s work clearly demonstrates biopower
and policing are coeval products of liberal modernity, producing a circulatory power within and beyond
the rule of law to administer the norms of productive living.37 Accordingly, law enforcement officials
can be meaningfully understood as ‘knowledge workers’. 38

The 1ac’s liberalization of the criminal justice system only functions to produce police
forces that uphold modern market systems through more “effective” policing. Their
attempt at reform is only a smokescreen that gives the police more biopolitical power.
Ryan, 2016 (Barry, Senior Lecturer in International Relations at Keele University, “Becoming
Motenegrin: biopower, police reform and human rights.” The International Journal of Human Rights 21
March 2016) 5-6

In its actual practice, the liberalisation of law enforcement – what we nowadays term police reform –
serves to create this network of knowledge and to produce police forces capable of securing the
incessant flow of people, things and ideas in a manner conducive to the market principle of freedom.
For this to occur police must be aware of the techniques and technologies used to monitor movement;
ensuring its constant flow and knowing when to intervene and when to let things flow (laissez faire).
This modus operandi is inherently risky. Implicitly biopolitical, it serves a distinctly economic function as
it ‘seeks to preempt, minimize or disrupt loss’. 39 It is for this reason that risk management is the
cardinal element in the apparatus of liberal reform. The behavioural norms at issue in biopower are
those that constitute identity in terms of risk. risk might involve management of alternative cultures or
nonliberal ways of life within the confines of the state. Montenegro, as we shall see, is an area that is
widely portrayed as housing familial communities, semi-nomadic people and multiple faiths. It is a
country where cultural norms are rarely homogenous and uncontested. Liberalisation, as Merlingen and
Ostrauskaitė observed in Macedonia,40 tends to problematise as atavistic, illiberal or inefficient the lives
and the values of individuals in these subgroups. Justified by a moral and apolitical rationale, security is
presented to these groups together with new inalienable rights, as a conduit for the improvement of
their lives. Consequently, biopower works on the private sphere to secure the functionality of the public
sphere. A liberal police force gains its most quotidian exceptional power from the need to monitor and
gather intelligence from the private sphere of individuals so that it can filter normal behaviour from
suspicious or irrational activity.41 Reform therefore seeks to improve surveillance skills at all levels of
practice, at the level of human and technological relationships while simultaneously demonstrating
law enforcement as an ethical, progressive and detached service provider. Consequently, police
reform is less about the rule of law than it is about the rule of normative power, or more accurately,
the rule of police. Occurring in instances where state controls have become obsolete for various
reasons, reform seeks to decentralise state power towards a market-based model; and to adjust it to
the new values and dynamic lifestyles of capitalism. It socialises police to act from within society, with
consensus, rather than to act in a top-down manner in its primary activities; gathering data, processing
it, intervening with reasonable force or distributing intelligence and information where necessary.42
 Decarceration Link
Reforms centered around decarceration only stand to mask neoliberal investments
into privately operated markets which promote alternative policing and surveillance
mechanisms.
Whitlock, 17 is co-author of Queer (In)Justice: Criminalizing LGBT People in the United States and
writes frequently on issues of structural violence and inequality “How “Bipartisan Criminal Justice
Reform” Institutionalizes a Right-Wing, Neoliberal Agenda” accessed online 6-3-20
https://truthout.org/articles/how-bipartisan-criminal-justice-reform-institutionalizes-a-right-wing-
neoliberal-agenda/”

October 2016 marked the release of Ava DuVernay’s documentary, 13th: the most prominent film to
date to tackle the history of mass incarceration in the US. DuVernay tells her story through the lens of
the Thirteenth Amendment to the US Constitution, which abolished slavery and involuntary servitude
“except as a punishment for crime whereof the part shall have been duly convicted.” Tracing the
criminalization of Black people as a class to this loophole, 13th movingly grieves lives lost to “law and
order” politics[1] in recent years and invites us to join the movement to dismantle mass incarceration.
The case for change is made by an unusual array of commentators, who span the political spectrum.
Newt Gingrich and Grover Norquist appear on equal footing with such scholar-activists as Angela Davis,
Marie Gottschalk, and Khalil Muhammad, whose work profoundly helps to shape our understanding of
racialized law enforcement, police and prison violence, mass incarceration, and the growth of the public-
private prison industrial complex. Many activists are surprised to see the first two names joined with the
latter. With decades of staunch right-wing activism, Gingrich, most recently an ardent supporter of racial
profiling to counter “terrorism,”[2] and Norquist, who heads Americans for Tax Reform and dreams of
shredding the social safety net,[3] have been made over as conservative poster children for criminal
justice reform. They’re only two among scores of hardline Republicans and right-wing or libertarian
think tanks and advocacy organizations promoting bipartisan collaboration. What should one make of
this? Is this the softening of the Right? Are Davis and Gingrich really in sync? Of course not. Davis is a
scholar and prison abolitionist whose life’s work reflects an unequivocal, untiring commitment to
expansive notions of liberation, freedom, and justice. By contrast, the Right’s — and Gingrich’s —
embrace of “bipartisan reform” builds on a long history of support for structural White supremacy and
a larger neoliberal austerity framework that promotes an ever-expanding emphasis on security.[4]
Those differences matter — profoundly, and sometimes in unexpected ways. How and why that came
to be amounts to a cautionary tale for progressive movements about the “bipartisan reform consensus.”
Recognizing its assumptions, limitations, and contradictions also helps identify opportunities to advance
an unapologetically progressive, anti-neoliberal agenda in the era of Trump. More than an actual means
of improving policy, “bipartisan criminal justice reform” has become a mantra signifying hope: that
people of good will can come together across ideological divides and partisan gridlock to end our
country’s overreliance on expensive and unjust systems of incarceration…. Key Reform Elements:
Cautionary Notes A quick look at a few key elements of the [“criminal justice reform”] agenda suggest a
more complicated story than that contained in campaign talking points. Beyond specific agenda issues
and proposals are questions of how they are framed, how they will be implemented, and possible
gains or losses. Sentencing Reforms Reduced sentences for some categories of low-level, nonviolent
offenses, particularly for drug-related and minor property offenses, are a reform centerpiece. In various
states, thousands of people have been released from jails and prisons; many thousands more have had
their conviction records changed; still others will benefit from shorter sentences. This is a remarkable
and necessary “decarceration” accomplishment that must be amplified. Thousands of others, pre-trial or
pre-charge, are diverted to some form of community corrections and supervision, mandatory treatment
for substance abuse, or “alternatives to incarceration.” Some reform initiatives also increase certain
sentences. Mississippi’s reforms did both.[31] So did the federal Sentencing Reform and Corrections Act
of 2015, which failed to pass that year and did not gain sufficient traction in Congress the following year.
[32] Should the liberal-Left sector accept some sentencing increases, however grudgingly, on the basis of
pragmatism? Expanding Community Corrections and Supervision Bernadette Rabuy and Peter Wagner of
the Prison Policy Institute emphasize that justice reform “should aim to reduce the number of people
under correctional control rather than simply transfer people to other pieces of the correctional
pie.”[33] But over the past decade, there has been a quiet but steady expansion in the often onerous
requirements and conditions placed on people under some form of correctional control, including
community corrections or alternatives to imprisonment.[34] This system includes parole and probation
supervision, treatment/rehab programs, electronic monitoring, contractual truancy monitoring, re-entry
programs, and specialized drug, veteran, mental health, and other “problem-solving” courts.[35] Framed
as humane alternatives that make it possible to divert people from prisons, too often they come with
profound costs to the individuals remanded to them and the communities already reeling from the
impacts of mass incarceration.[36] While reform often produces some degree of decarceration, it does
not, by itself, dismantle mass incarceration.[37] Nor does it permanently reduce the scope of law
enforcement surveillance and supervision. To the contrary, pre-charge and pre-trial diversion into some
form of community corrections ends up also sweeping in people who have not been convicted of crimes,
and in some cases, have not yet been arrested, but who must comply with state-imposed conditions for
set periods of time before their records are cleared. This means that they bear the consequences of
punishment, although they have not been found guilty of any offense. The alternative is to be formally
charged, with even worse consequences accompanying possible conviction. Violation of these
conditions, including failing to pay associated fees, is met with “swift and certain” responses, including
incarceration. Much of the funding for this expansion comes through “justice reinvestment” or
offloading costs onto individuals who are increasingly required to pay some or all of the costs of
community corrections. People who can least afford it may have to pay for drug tests and shoulder the
cost of other treatment, supervision fees, and startup and ongoing (daily or monthly) fees for electronic
monitoring. But many of these people shouldn’t be in the system at all. A mix of public-private for-profit
and nonprofit institutions, ranging from municipal drug courts to privately-run probation systems to
corporate corrections behemoths like The Geo Group to local prisoner aid organizations, community
corrections, as a category, provides uneven quality of services and technologies. Every possible arena
becomes a potential corrections and surveillance site. In practice, this matrix is often plagued with
profiteering, scandal, and corruption.[38] What strategies can effectively challenge this in the short term
and transform it in the long run? Money Bail Reform A bail bond is the amount of money a defendant is
required to pay as a guarantee they will show up in court. A person who is unable to pay may be — and
often is — incarcerated from the time of arrest until the case is resolved. Urgently needed, money bail
reform is moving forward in a growing number of municipalities and states, but it can be a double-edged
sword. In 2016, New Mexico voters approved a constitutional amendment permitting judges to deny bail
to certain defendants considered “exceptionally dangerous” and also grant pretrial release without bail
to those who are not considered dangerous. The ACLU and some other initial advocates withdrew
support because the final wording contained changes demanded by the politically influential for-profit
bail bond industry. These changes required poor people to provide evidence of poverty and added
ambiguous wording that potentially could be misused against particular communities, including
immigrants.[39] In 2017, the Movement for Black Lives (MLB), in collaboration with other partners,
released Transformative Bail Reform, a popular education curriculum, an invaluable and unique
resource for grassroots organizers and social justice to help them understand the issues in a larger
historical, social, and economic context.”[40] There must be a concerted effort to help get this
information in the hands of local social justice organizers to inform their work. “Reinvestment” Sleight of
Hand According to a 2016 Urban Institute report on Justice Reinvestment Initiative programs in many
states, more than $1 billion has been saved (or calculated as averted costs) over time by reducing the
number of people incarcerated in participating states. Yet JRI savings are not reallocated to improve the
health and well-being of communities most impacted by race-based policing and mass incarceration,
except indirectly, through recycling into some form of prison-based or community corrections work.[41]
Prop 47’s initial “community investment” savings — about $68 million once substantive governmental
disputes over the correct amount were settled — were to be distributed by three different bodies
through competitive grants for drug treatment, mental health services, and supportive housing for
people in the criminal justice system (65 percent); programs for at-risk students (dropout and truancy) in
K-12 schools (25 percent); and victim services (10 percent). Yet as of December 2016, almost two years
after the passage of Prop 47, none of the “savings” had been spent for these designated purposes. (The
money should be reallocated in Spring 2017.)[42] The Movement for Black Lives and others in
progressive justice movements promote far more liberatory “invest/divest/reinvest” frameworks for
organizing.[43] But in many jurisdictions, progressives will have to organize to overcome or transform
the closed, restrictive processes that are already institutionalized. Rhetoric of Danger When we fail to
challenge and transform the terms of engagement, reform agendas relying on representations of
danger and violent criminals always win out over social, economic, and environmental justice. In the
US, anyone labeled violent, dangerous, or criminal is considered disposable. Bipartisan reform
campaigns center the themes of danger and public safety, and the framing implies that “public safety” is
primarily a function of policing, surveillance, and control, with the prison always in the background as
the essential repository for “danger” and the disposable people who are marked as its embodiment.
That doesn’t ever bode well for justice movements but particularly now when they must contend with a
new and unstable president who rose to power on a wave of right-wing populism, stoking a toxic mix of
White nationalism and racialized resentment and rage. Particularly concerning is the appointment of Jeff
Sessions, who has a long, racist “law and order” history, as attorney general. As a champion of voter
suppression, draconian anti-immigrant policies, harsh sentencing policies, expanded incarceration, racial
profiling, and unbridled police power to quell imagined or actual dissent, he is obsessed with doing
battle against racialized, violent notions of criminals.[44] At the same time, justice movements know
Sessions isn’t the only problem. Today’s growing torrent of state and local efforts to harshly criminalize
dissent comes in the wake of anti-state violence uprisings and the Standing Rock water protectors’
assertion of Indigenous sovereignty as much as 2017 protests surrounding Trump’s inauguration.[45]
The challenges we face are the result of decades of right-wing activism, not simply the ascendance of
Jeff Sessions. In 1883, the abolitionist and former slave Frederick Douglass spoke about the power of
racial criminalization, noting “the general disposition in this country to impute crime to color.”[46] He
was describing a massive system of racialized social control that includes prisons. In this light, consider
again the Sentencing Reform Act of 1984. Ultimately calamitous (and still racially biased) policies came
into being in part because “criminal justice” was narrowly framed as a standalone issue whose
problems could be corrected by tinkering with the mechanics of sentencing. It’s happening again. The
US carceral system is not winding itself down as a humanitarian response to the racialized and economic
brutalities of mass incarceration. Rather, it’s reinventing and renewing itself under the bipartisan mask
of reform. And today, as in 1984, conservative-Right reformers are better organized to win on contested
terrain. The Right utilizes every possible issue — criminal justice reform, health care, school
privatization, environmental protection, industry regulation, religious liberty — to advance an
ideological agenda and coherent, holistic endgame. The progressive-Left sector, by contrast, has no
similar endgame in mind.
 Agamben Legalism Link
The plan’s deployment of legal reform does not limit sovereign power, but rather
reinforces the power of exception which legitimizes abuses in the first place
Kohn 6
(Margaret, assistant professor of political science at the University of Florida-Gainesville, “Bare Life and
the Limits of the Law,” Theory and Event 9.2 (2006): Project Muse)

6. At this point it should be clear that Agamben would be deeply skeptical of the liberal call for more vigorous
enforcement of the rule of law as a means of combating cruelties and excesses carried out under emergency
powers. His brief history of the state of exception establishes that the phenomenon is a political reality that has proven
remarkably resistant to legal limitations. Critics might point out that this descriptive point, even if true, is no reason to jettison the
ideal of the rule of law. For Agamben, however, the link between law and exception is more fundamental; it is intrinsic to
politics itself. The sovereign power to declare the state of exception and exclude bare life is the same
power that invests individuals as worthy of rights . The two are intrinsically linked. The disturbing implication of his argument
is that we cannot preserve the things we value in the Western tradition (citizenship, rights, etc.) without preserving the perverse ones. 7.
Agamben presents four theses that summarize the results of his genealogical investigation. (1) The state of exception is a space devoid of law. It
is not the logical consequence of the state's right to self-defense, nor is it (qua commissarial or sovereign dictatorship) a straightforward
attempt to reestablish the norm by violating the law. (2) The space devoid of law has a "decisive strategic relevance" for the juridical order. (3)
Acts committed during the state of exception (or in the space of exception) escape all legal definition. (4) The
concept of the force-of-
law is one of the many fictions, which function to reassert a relationship between law and exception ,
nomos and anomie. 8. The core of Agamben's critique of liberal legalism is captured powerfully, albeit indirectly, in a quote from Benjamin's
eighth thesis on the philosophy of history. According to Benjamin, (t)he tradition of the oppressed teaches us that the 'state of
exception' in which we live is the rule . We must attain a concept of history that accords with this fact. Then we will clearly see
that it is our task to bring about the real state of exception, and this will improve our position in the struggle against fascism. (57) 9. Here
Benjamin endorses the
strategy of more radical resistance rather than stricter adherence to the law . He
recognizes that legalism is an anemic strategy in combating the power of fascism . The problem is that
conservative forces had been willing to ruthlessly invoke the state of exception in order to further their agenda while the moderate Weimar
center-left was paralyzed; frightened of the militant left and unwilling to act decisively against the authoritarian right, partisans of the rule of
law passively acquiesced to their own defeat. Furthermore, the rule of law, by incorporating the necessity of its own dissolution in times of
crisis, proved itself an unreliable tool in the struggle against violence. 10. From Agamben's perspective, the civil libertarians' call for uniform
application of the law simply denies the nature of law itself. He insists, "From the real state of exception in which we live, it is not possible to
return to the state of law. . ." (87) Moreover, by
masking the logic of sovereignty, such an attempt could actually further
obscure the zone of indistinction that allows the state of exception to operate . For Agamben, law serves to
legitimize sovereign power. Since sovereign power is fundamentally the power to place people into the
category of bare life, the law, in effect, both produces and legitimizes marginality and exclusion .

Every action that participates in the political process is one that creates an exception
and results in biopolitical control

Agamben 98 (Giorgio, professor of philosophy at the University of Verona, Homo Sacer, pg. 8-9)

The protagonist of this book is bare life, that is, the life of homo sacer (sacred man), who may be
killed and yet not sacrificed, and whose essential function in modern politics we intend to assert. An
obscure figure of archaic Roman law, in which human life is included in the juridical order II
ordinamento Il solely in the form of its exclusion (that is, of its capacity to be killed), has thus
offered the key by which not only the sacred texts of sovereignty but also the very codes of
political power will unveil their mysteries. At the same time, however, this ancient meaning of the
term sacer presents us with the enigma of a figure of the sacred that, before or beyond the
religious, constitutes the first paradigm of the political realm of the West. The Foucauldian thesis
will then have to be corrected or, at least, completed, in the sense that what characterizes modern
politics is not so much the inclusion of zo~in rhepo/is—which is, in itself, absolutely ancient—nor
simply the fact that life as such becomes a principal object of the projections and calculations of
State power. Instead the decisive fact is that, together with the process by which the exception
everywhere becomes the rule, the realm of bare life—which is originally situated at the margins of
the political order—gradually begins to coincide with the political realm, and exclusion and
inclusion, outside and inside, bios and zoe right and fact, enter into a zone of irreducible
indistinction. At once excluding bare life from and capturing it within the political order, the state
of exception actually constituted, in its very separateness, the hidden foundation on which the
entire political system rested. ‘When its borders begin to be blurred, the bare life that dwelt there
frees itself in the city and becomes both subject and object of the conflicts of the political order, the
one place for both the organization of State power and emancipation from it. Everything happens as
if, along with the disciplinary process by which State power makes man as a living being into its
own specific object, another process is set in motion that in large measure corresponds to the birth
of modern democracy, in which man as a living being presents himself no longer as an object but as
the subject of political power. These processes—which in many ways oppose and (at least
apparently) bitterly conflict with each other—nevertheless converge insofar as both concern the
bare life of the citizen, the new biopolitical body of humanity.
 Securitization Link
The construction of security threats are not based in material reality, and instead are a
move to sacrifice the Other while enabling a permanent state of emergency
Muller 9
(Benjamin J., Associate Professor of Political Science at King’s University College of the University of
Western Ontario in Canada, “(Dis)qualified bodies,” Securitizations of Citizenship, ed. Peter Nyers, p. 79-
82)
Particularly since the events of 11 September 2001 and subsequent ‘wars on terror’, there has been a dramatic — and often draconian —
securitization of the politics of borders and bodies (Andreas and Biersteker, 2003, Bigo, 2001, 2002, Huysmans, 1995, Nyers, 2003). In this
context, securitization is often associated with criminalization, and a heightened use of what Peter Nyers terms ‘technologies of control (such as
detention) and strategies of exclusion (such as deportation)' (Nyers, 2003, p. 169). (critical security studies, whether engaging notions of
‘securitization’ and societal security (see Buzan et al., 1998, Buzan and Waever, 2003, Waever, 1995, Waever et al., 1993), or broader critical
understandings of security, (see Krause and Williams, 1997, Lipschutz, 1995) is astute to question security’s dependence on insecurity, and its
role in claims about the possibility or impossibility of politics itself (Walker, 1997). In his critical reflection on security’s claim to universality,
Anthony Burke suggests; It is to see security as an interlocking system of knowledge, representations, practices, and institutional forms that
imagine, direct, and act upon bodies, spaces and flows in certain ways — to see security not as an essential value, but as a political technology.
(Burke, 2002, p. 2) For Burke, security
as a political technology is also a technology of subjectivity, as ‘both a
totalizing and individualizing blackmail and promise’ (p. 22), attempting to cope with the emerging
problem of governing society as a whole. ‘Governing of society as a whole’ refers directly to Foucault’s claim that all modern
politics are biopolitics; biopolitics being the transformation of state power from the power over death to
the management of populations and power over life (see Foucault, 1991, 1976, 1995). However, in order to further
contextualize claims that citizenship is being ‘securitized’, some analysis of security/securitization, and its relation to governmentality and the
Schmittian distinction between friends and enemies is necessary. As this article suggests, the nature and meaning of ‘security’ is itself in
question. Coming to terms with this, and actively broadening the agenda of security beyond more conventional preoccupations with the state
and its military — most notably towards questions of identity — is what concerns the majority of critical security studies. Securitization
theory, as developed by the Copenhagen School, understands security to be a social construct (see Buzan et al., 1998, Buzan
and Waever, 2003, Huysmans, 2002, Waever, 1995, Waever et al., 1993). As a result, security is not merely a material or
objective ‘reality’, such as the arms race during the Cold War, but is the outcome of social processes, or the sort of
‘interlocking system of knowledge, representation, [and] practices ’ to which Anthony Burke refers. Through speech
acts, particular issues or practices are represented as threats; ergo, security only exists in relation to
insecurity (Burke, 2002, p. 20). This critical notion of security and/or securitization, enables us to consider how citizenship becomes
‘securitized’. The events of 11 September 2001 led to a significant increase in the use of dis- courses (and images) of threat and (in)security in
the politics of citizenship and migration, as well as an expanding assault by both governments and media outlets on the citizenship and
immigration policies of certain states regarded as ‘soft’ on such matters (UK White Paper, Salter, 2004, Andreas and Biersteker, 2003). As
Michael Williams notes, media and government increasingly construct the migrant, refugee, alien, and ‘Other’ as threats
to security, or what one might call ‘insecure bodies’, preserving the high status of migration on most states’ security agendas (Williams,
2003, p. 526; see also Isin, 2002). Admittedly, the character of this threat as expressed in the post-Cold War European context by the
Copenhagen School has changed (Heisler and Layton-Henry, 1993). Conceptualizing migration as a ‘societal threat’, that challenges existing
social, economic and political values of a society remains in the foreground of securitized citizenship and migration politics (Heisler and Layton-
Henry, 1993, p. 148). However, these considerations increasingly stand alongside more conventional security concerns, as governments and
media outlets continually represent the (alleged) links between ‘slack’ migration and citizenship policy and terrorism.2 The example of asylum
in Britain is one among others, such as the Kosovo War, (see Ignatieff, 2000) from which Williams draws in order to argue that securitization is
no longer constructed exclusively through linguistic legitimation, but also by ‘acceptable image-rhetorics’ (Williams, 2003, p. 527). Here the
mediated representation of the events of 11 September 2001 are exemplary, consistently evoked as justification for the expansive
securitization of contemporary political life. In fact, as the discussion of biometrics will indicate, mediated representations of bio-metric
technologies often act as their own justification and explanation. These visual securitization
acts are a form of ‘cultural
governance’ that serve to reinforce the current ‘state of exception’ as the norm (see Shapiro, 2004). Moreover,
while these visual securitization acts serve to limit the space of possible politics , images of (bio)agency can also have an
important role in the politics of resistance, which I discuss later (see Campbell, 2003). Before moving forward, however, Williams’ concern with
Carl Schmitt's legacy in securitization theory deserves further inquiry. According to Carl Schmitt, the political is about antagonism; at its core,
the discrimination between friend and enemy. In The Concept of the Political, Schmitt contends that: A world in which the possibility of war is
utterly eliminated, a completely pacified globe, would be a world without distinction of friend and enemy, and hence a world without politics.
(Schmitt, 1996, p. 35) Furthermore, this discrimination that is the political moment, is bound up with the state, as Schmitt notes: In its entirety
the state as an organized political entity decides for itself the friend-enemy distinction. (Schmitt, 1996, pp. 29-30) Elsewhere, Schmitt reaffirms
the role of the state in making such discriminations: Sovereign is he who decides on the exception. (Schmitt, 1985, p. 5) The closer antagonisms
get to the discrimination between friend and enemy, the more political issues become. According to Williams, securitization theory moves in a
similar fashion: any
issue can be ‘securitized’ or made into a ‘security issue’, ‘if it can be intensified to the
point where it is presented and accepted as an existential threat’ (2003, p. 516). Williams argues further that
securitization theory borrows from classical realism’s preoccupation with survival, and it is this logic of security — a logic of existential threat
and extreme necessity — that securitization theory shares with Schmitt’s concept of the political (Williams, 2003, p. 516). Finally, and perhaps
most importantly, Williams links Schmitt’s decisionist politics of the sovereign with securitization's break from ‘normal politics’. Moreover, this
suggests themove to securitize or make an issue into a ‘security issue’, is to draw it into exceptional politics. As Giorgio
Agamben points out, politics as the state of exception — that is, the desertion of subjects to a condition of
bare life, where their political rights are stripped from them — is increasingly becoming the norm (Agamben
1998, see Diken, 2004). In fact, Agamben himself confronted (or more precisely, decided to avoid) this ‘state of exception’ in the shape of the
United States’ relatively new policy towards foreign citizens, requiring ‘data registration’ upon arrival (Agamben, 2004).3 This policy, that
Agamben refers to as a ‘biopolitical tattoo’ is part and parcel of the increasingly scarce spaces of politics in this epoch of exceptionalism
(Agamben, 2004, p. 169). The importance of the ever-encroaching politics of exception as the norm, is the extent to which the ‘problem’ of the
contemporary securitization of citizenship can be read as an attempt to come to terms with the discrimination between friend and enemy. As
Didier Bigo points out, another important contribution of securitization theory is highlighting the assimilation of internal and external security
or the ‘securitization of the inside’ (Bigo, 2000). Particularly in the context of post- (Cold War Europe and the construction of ‘Schengenland’ -
sometimes referred to as ‘Fortress Europe’ — the use of ‘external security agencies’ to cooperate with police looking ‘inside’ for threats, further
reinforces claims that the space of citizenship is securitized (Bigo, 2000, p. 171). In the context of regional security strategies (see Buzan and
Waever, 2003), and ongoing so—called ‘wars on terror’, the threat is constructed as a stateless, faceless enemy, for which
we (must) search both inside and outside . Furthermore, as Derrida's examination of Schmitt insists, the existence of the political
is premised upon the practical identification of the enemy (Derrida, 1997, p. 116). This article proceeds by suggesting that faced with the
contemporary challenges of making this practical identification, the securitization of citizenship, or what I call identity management, creates the
conditions of possibility for introducing biometric technologies into contemporary citizenship.
 Forensic Science
We should understand forensic science as a practice of biopolitical control where
bodies are moved into state of exceptions, reform can only sanitize this process
Toom 2012 (Victor, Professor at Northumbria University, Centre for Foresenic Science, “Bodies of
Science and Law: Forensic DNA Profiling: Biological Bodies and Biopower

Agents of power like the police, public prosecutor, and judge are, since the introduction of forensic DNA
profiling in criminal justice systems, advancing further into personal spheres, thereby rendering the
personal into public objects.10 The radical shift that has occurred is that crime investigation and criminal
litigation have become intimately connected with body samples and the production of genetic
knowledge about those samples, and hence its originators. It is in this capacity that the mechanism that
enables forensic DNA profiling resembles key aspects of Michel Foucault's analysis of `biopower'. First,
genetic and subsequent digital representations of bodies are produced, enabling the comparability of
bodily samples originating from a subject and bodily traces collected at crime scenes. Such
representations contain knowledge of the originator's body that goes beyond `the science of its
functioning'.11 Second, authorities involved in criminal investigation, who have gained procedural
powers to collect biological samples from subjects, process the samples into DNA profiles, and store
samples and profiles in biobanks and databases for many years. So, the authorities have gained mastery
over those bodies and body parts for a specific amount of time which `is more than the ability to
conquer them'.12 Mastery over bodies and the ability to produce knowledge about them are central to
Foucault's analyses regarding the workings of power and its relationships with bodies.13 Yet, to
appreciate what goes on in forensic DNA profiling, and to be able to analyse the normative
consequences of the routine criminal justice mechanism that renders private bodies into public bodies,
it is essential to enquire briefly into political philosophy and legal theory. Everybody in a democratic
state of law is entitled to civil rights. Freedom of speech, religion, association, and opinion are some
examples. Such rights, especially in continental liberal democracies, are laid down in a system of rights
usually referred to as the Constitution. Rights of the `self' are, in the context of forensic DNA profiling,
regarded as personal lives and the integrity of individual bodies. In order to protect these realms against
the power of the state and its institutions, like the police, the Office of Public Prosecution, and the
judiciary, individuals, their bodies and personal lives are assigned civil rights. More specifically, turning
to the Netherlands as a case study, personal lives and individual bodies are protected by articles 10 and
11 of the Dutch Constitution, which states that everyone shall `have the right to respect for his privacy'
and `have the right to inviolability of his person'.14 These rights are not absolute rights as they can be
curtailed according to `restrictions laid down by or pursuant to an Act of Parliament'.15 In other words,
personal lives and individual bodies can be violated by authorities involved in criminal investigation
when conditions described in the Code of Criminal Procedures are met. With regard to Dutch DNA
profiling, the Code of Criminal Procedures delineates when privacy and the right to an inviolable body
do not apply to an individual, and typically include suspects and convicted offenders (see further below).
The bodies and personal lives of these categories of individuals are excluded from Articles 10 and 11 of
the Dutch Constitution. Their bodies and bodily samples are, echoing Giorgio Agamben's influential work
on contemporary mechanisms of biopower, legally in a `state of exception'.16
Forensic Science turns private bodies into public bodies a violent biopoltical process.
Toom 2012 (Victor, Professor at Northumbria University, Centre for Foresenic Science, “Bodies of
Science and Law: Forensic DNA Profiling: Biological Bodies and Biopower

Most people would intuitively accept the proposition that `I own my body'. Such a statement
underscores the individual mastery over a particular body and delineates the private from the public.
Yet, if you are under suspicion or convicted for a crime, or diagnosed with a specific disease or mental
condition, the statement may no longer apply; you can be arrested, searched, taken into custody,
hospitalized or forced to take medications. The body that once was yours becomes an object of
incrimination, incarceration, care or treatment. When jurisdiction over a body is transferred from an
individual to agents of power like police and medics, those bodies transform from `private bodies' into
`public bodies'. An analysis regarding the transformation of private into public bodies is provided by
American social geographer David Delaney.4 He describes a case where an inmate is diagnosed with a
mental disorder. The patient/ prisoner receives pharmaceutical treatment, yet withdraws consent for
treatment after he experiences deleterious effects caused by the medication. Bypassing his will, the
state legally continues to administer the drugs to the inmate and hence he becomes the `unwilling
recipient of a sort of ``synthetic sanity''.'5 In other words, his body is put under restraint, `his skin and
muscles are penetrated by the state apparatus of the syringe, his circulatory and nervous systems are
colonized by the authorities aided by pharmaceutical corporations.'6 In this act of putting his body under
restraint ± that is, when a private body is transformed into a public body ± several normative and legal
issues arise: individual consent and autonomy are bypassed and his right to an inviolable body is
breached. His body is not `his' anymore. Or, as Delaney puts it, the inmate's body becomes `a material
slab, a zone between his self and the outer institutional environment.'7 Before any individual can be
made a ward of court, evidence that he is not able to take care of himself should be provided. In the
example provided by Delaney, it can be assumed that the inmate was tested both mentally and
physically (using the Diagnostic and Statistical Manual of Mental Disorders, DSM), observed and
interviewed, and that all collected data was evaluated. These results are compared with other scientific
data, like fMRI scans or neurochemically tested samples. Individuals can only be made wards of court if
the results point to the same mental condition. Hence, scientific evidence warrants the legal decision of
transferring jurisdiction over a body from the individual to an authority ± such body becomes
constituted as a body of science and law. The criminal justice system is a domain where private bodies
are rendered into public bodies routinely. Several mechanisms are in place to achieve this, the most
straightforward being the arrest or imprisonment of individuals. Such public bodies can be regarded as
`bodies of law' as legal mechanisms are in place to warrant arrests, and so on. Bodies of science and law
have been around since as long ago as the nineteenth century, when scientific methods, like
dactyloscopy (fingerprinting) and anthropometry (biometrics) were already being applied to make
representations of individuals and their bodies.
 Trials Link
Trials elide the distinction between ethics and law, making justice impossible
Agamben 99
(Giorgio, professor of aesthetics at the University of Verona in Italy, Remnants of Auschwitz: The
Witness and the Archive, trans. Daniel Heller-Roazen, p. 17-19)
1.3 In Latin there are two words for “witness.” The first word, testis, from which our word "testimony" derives, etymologically signifies the
person who, in a trial or lawsuit between two rival parties, is in the position of a third party (*terstis). The second word, superstes, designates a
person who has lived through something, who has experienced an event from beginning to end and can therefore bear witness to it. It is
obvious that Levi is not a third party; he is a survivor [superstite] in every sense. But this also means that his testimony has nothing to do with
the acquisition of facts for a trial (he is not neutral enough for this, he is not a testis). In the final analysis, it is not judgment that matters to him;
let alone pardon. “I never appear as judge”; “I do not have the authority to grant pardon…. I am without authority” (ibid.: 77, 236). It seems, in
fact, that the only thing that interests him is what makes judgment impossible: the gray zone in which victims become executioners and
executioners become victims. It is about this above all that the survivors are in agreement: “No group was more human than any other” (ibid.:
232). “Victim and executioner are equally ignoble; the lesson of the camps is brotherhood in abjection” (Rousset, cf. Levi 1997: 216). Not that a
judgment cannot or must not be made. “If I had had Eichmann before me, I would have condemned him to death” (ibid.: 144). “If they have
committed a crime, then they must pay” (ibid.: 236). The decisive point is simply that the two things not be blurred, that law not presume to
exhaust the question. A non-juridical element of truth exists such that the quaestio facti can never be reduced
to the quaestio iuris. This is precisely what concerns the survivor: everything that places a human action
beyond the law, radically withdrawing it from the Trial . “Each of us can be tried, condemned and punished without even
knowing why” (ibid.: 75). 1.4 One of the most common mistakes - which is not only made in discussions of the camp - is the
tacit confusion of ethical categories and juridical categories (or, worse, of juridical categories and theological categories,
which gives rise to a new theodicy). Almost all the categories that we use in moral and religious judgments are in
some way contaminated by law: guilt, responsibility, innocence, judgment, pardon …. This makes it difficult to
invoke them without particular caution. As jurists well know, law is not directed toward the establishment of justice. Nor
is it directed toward the verification of truth. Law is solely directed toward judgment, independent of
truth and justice. This is shown beyond doubt by the force of judgment that even an unjust sentence carries
with it. The ultimate aim of law is the production of a res judicata, in which the sentence becomes the
substitute for the true and the just , being held as true despite its falsity and injustice. Law finds peace in this hybrid creature, of
which it is impossible to say if it is fact or rule; once law has produced its res judicata, it cannot go any further . In 1983,
the publisher Einaudi asked Levi to translate Kafka's The Trial. Infinite interpretations of The Trial have been offered; some underline the
novel's prophetic political character (modern bureaucracy as absolute evil) or its theological dimension (the court as the unknown God) or its
biographical meaning (condemnation as the illness from which Kafka believed himself to suffer). It has been rarely noted that this book, in
which law appears solely in the form of a trial, contains a profound insight into the nature of law , which,
contrary to common belief, is not so much rule as it is judgment and, therefore, trial. But if the essence of the law - of every law -
is the trial, if all right (and morality that is contaminated by it) is only tribunal right, then execution and
transgression, innocence and guilt, obedience and disobedience all become indistinct and lose their
importance. “The court wants nothing from you. It welcomes you when you come; it releases you when you go.” The ultimate end
of the juridical regulation is to produce judgment; but judgment aims neither to punish nor to extol,
neither to establish justice nor to prove the truth. Judgment is in itself the end and this, it has been said,
constitutes its mystery, the mystery of the trial. One of the consequences that can be drawn from this self-referential nature of judgment - and
Sebastiano Satta, a great Italian jurist, has done so - is that punishment does not follow from judgment, but rather that judgment is itself
punishment (nullum judicium sine poena). “One can even say that the
whole punishment is in the judgment , that the action
characteristic of the punishment - incarceration, execution - matters only insofar as it is , so to speak, the
carrying out of the judgment” (Satta 1994: 26). This also means that “the sentence of acquittal is the confession of a judicial error,”
that “everyone is inwardly innocent,” but that the only truly innocent person “is not the one who is acquitted, but rather the one who goes
through life without judgment” (ibid.: 27).
Trials exonerate the state and the public for their role in violence, turns the AFF
Agamben 99
(Giorgio, professor of aesthetics at the University of Verona in Italy, Remnants of Auschwitz: The
Witness and the Archive, trans. Daniel Heller-Roazen, p. 19-20)

1.5 If this is true - and the survivor knows that it is true - then it is possible that the trials (the twelve trials
at Nuremberg, and the
others that took place in and outside German borders, including those in Jerusalem in 1961 that ended with the hanging of Eichmann) are
responsible for the conceptual confusion that , for decades, has made it impossible to think through
Auschwitz. Despite the necessity of the trials and despite their evident insufficiency (they involved only a few hundred people), they
helped to spread the idea that the problem of Auschwitz had been overcome. The judgments had been
passed, the proofs of guilt definitively established. With the exception of occasional moments of lucidity,
it has taken almost half a century to understand that law did not exhaust the problem, but rather that
the very problem was so enormous as to call into question law itself , dragging it to its own ruin.
 Weed K Link
Focus on marijuana form remains a liberal reformist smoke screen that obscures the
violence of the larger structure
Benjamin Levin, The Consensus Myth in Criminal Justice Reform, 117 Mich. L. Rev. 259 ( 2018),
available at https://scholar.law.colorado.edu/articles/1205 DH
This Article proceeds from the premise that a significant amount of criminal law scholarship and reform work adopts the over frame.261 For scholars seeking to communicate with
policymakers, prosecutors, and judges, the over frame probably has significant appeal. By framing the criminal system’s problems explicitly in terms of an optimal and a suboptimal, this
approach tees up policy solutions more easily. That is, even if many scholars adopting this frame do not articulate clearly just what the optimal rate of criminalization or incarceration is,262
their critiques make it easier for policymakers, judges, and prosecutors to identify or remedy problems: the 100:1 crack/powder sentencing disparity is too great and needs be reduced;263 the
criminalization of marijuana possession is indefensible and should be abolished;264 the resources used to prosecute and incarcerate “nonviolent offenders” are better spent on other
prosecutions or other corners of the criminal system.265 In that respect, the over frame avoids the pragmatic concerns that the mass frame might introduce. The optimal and suboptimal (even
if framed in more philosophical terms by retributivists, expressivists, or incapacitationists) sound in the canon of policy arguments.266 They help make the over frame—whatever its operative

normative motivation—the recognizable province of or discourse for the liberal reformist project.267 Even when leveling stinging critiques at the
criminal system, the over critic need not reject the system as a whole: by decrying a “broken” system,
the over approach still retains a “good government” valence.268 If only we could tweak the rules and
the actors’ incentive, the over critique tells us, we could start to right the ship. There may be many major problems to address,
and there may be a long way to go in order to fix them, but the fundamental project of the U.S. criminal system and its core tools (prisons, state violence, etc.) are not up for debate.269 We

can tackle fundamental criminal justice policies without addressing underlying structures of power (e.g.,
voting rights, economic inequality, or the long hangover of segregation in jobs, housing, and schools). Agree or disagree, that line of critique and that approach

sound like the ways a scholar might speak convincingly to a legislator considering a piece of criminal
justice reform legislation.270 Even if the ask is a big one (e.g., reduce sentences dramatically for a broad
range of defendants; decriminalize previously criminal conduct), it is framed in manageable or
recognizable terms. The mass frame, on the other hand, sounds in a very different discourse.
Foregrounding questions of political economy, race, class, and power, the mass frame (at least potentially) raises
questions about all aspects of the criminal system and the political economy in which it is embedded. It
sounds not in the language of small-bore solutions or narrow, pragmatic fixes, but in terms of sweeping systemic critique. Rather than telling a judge that she should rethink some sentencing
determinations or telling a legislator that she should resist the impulse to draft another criminal statute, the mass scholar speaks a radical language of deep social ills and social injury. As

It is to say that the critique

discussed above and in the next Section, this is not to say that the mass frame does not provide or invite policy solutions—it certainly does.

itself sounds in an academic or ideological discourse that is at best skeptical about capitalism and the
fundamental structures of the criminal system. In that respect, it is no surprise that the mass frame originated (and appears to retain significant
purchase) in sociological and criminological literatures where first principles questions of political economy and distributive consequences are more prevalent.271 Where the law review article
as a general matter includes a final policy proposal,272 articles in these and other allied fields in the humanities and social sciences need not contain such an explicit endorsement, making this

Similarly, the law’s, legal academics’, and legal scholarship’s relationship

mode of critique more easily recognizable and acceptable.

to judges, practitioners, and policymakers complicates a turn to such a critical frame—if the lawyer-
scholar’s comparative advantage comes from her grounding in the practical aspects of the law and legal
practice,273 then does she give ground by adopting a less quantifiable or more heavily theoretical
frame?274 All this is to say that the over turn that much contemporary legal scholarship and commentary
reflects is neither surprising nor illogical. Indeed, it makes a lot of sense, and it is an invaluable part of
both the criminal justice reform literature and movement. But I think that this turn is not costless. That
is, the pragmatism it reflects masks pragmatic concerns about its adoption. Or, put simply, different
characterizations of a problem invite different solutions. Framing mass problems as over problems
means advocating for or endorsing over solutions, not mass solutions. By way of example, consider
marijuana legalization (or, at least, decriminalization). As described above, the criminalization of
marijuana possession is a frequent target of the overcriminalization literature .275 Similarly, over critiques of mass
incarceration frequently focus on marijuana possession (and other “nonviolent” drug crimes) as indicative of unduly harsh sentencing policy and the existence of a prison population that does
not necessarily deserve to be incarcerated.276 Put simply, then, legalizing marijuana would be a big win and a big step forward in addressing over critiques.
 Sovereignty Link
Sovereign power always has the ability to decide who falls into barelife, meaning
reform within that system can always be taken away
Anne Caldwell 2004 [Assistant Professor in the Department of Political Science at the
University of Louisville] “Bio-Sovereignty and the Emergence of Humanity,” d/l: muse
It is nevertheless Agamben who underscores the conditions necessary for that expansion of sovereign
power. While sovereignty, to establish order, must in some way separate inside from outside, that
process is counter-intuitive. For "what is excluded in the exception maintains itself in relation to the
rule in the form of the rule's suspension. The rule applies to the exception in no longer applying, in
withdrawing from it. The state of exception is thus not the chaos that precedes order but rather the
situation that results from its suspension." (1998: 17-18). Consequently, an order born of the exception
emerges not by tracing a simple line of inclusion and exclusion, but by "including something through its
exclusion" (p. 18). In that inclusive exclusion, sovereign power forms itself by creating "a zone of
indistinction between outside and inside" (p.19).

Under normal "non-exceptional" circumstances, that zone of indistinction remains hidden.

Only the effect of the sovereign decision appears. If the generative moment of sovereignty is
considered, the site of sovereignty changes. Viewed as the structure of the exception, and not only as
the decision on the exception, sovereignty does not simply decide on the limit. It is rather "the unlimited
power that makes limits" (Norris 2000: para. 16). 4 More strongly, "it is the limit, and hence carries the
limit with it in its movement as it carries itself" (Norris 2000: para 17).5 Sovereignty, as the condition for
any establishment of spatial differentiation, cannot itself be localized (Agamben 1998: 19). This
generative sovereignty cannot be confined to the form of a limited law that lays down the line
between power and its absence, only indirectly touching life. What then is the relationship between a
sovereign power whose very structure is the exception, and life?
 State link
The state operates through a bureaucratic framework that organizes the population
into going along with its plans—and silences those who disagree with its objectives
Saas 12 (William O., Ph. D Communication Arts & Sciences @ Penn State, “Critique of Charismatic
Violence." University of Nebraska Press, Volume 20/Numbers 1-2, http://muse.jhu.edu/login?
auth=0&type=summary&url=/journals/symploke/v020/20.1-2.saas.html, pg. 70-72)//ds

In this essay, I adopt a Foucauldian frame to define violence as that which exacts a remainder from
wholeness. Conceived thus, language becomes both a violence-in-itself and the delicate art through
which violence is disciplined and refined through codification, regulation, and poetics. The “state” here
becomes a figural extension of the preliminary violence of language; if language is violence, then the
state is the metaphoric violence par excellence of the modern world. In modernity, the state
metaphor abstracts a given territory and assemblage from their corresponding pre-given totalities,
disso- ciating from a singular world an inter-state geography of rival territories and populations
imbued with antagonistic potential (Schmitt 1996, 53). The modern state is, as Anthony Giddens notes,
an expansive and elastic “power- container” that dominates its constituency at the same time as it
severs that constituency from an otherwise pristine connectivity within the cosmos (1987, 120). While
the organizational form of the modern state was in the seventeenth century invented as a check on
religious violence, it nevertheless gained much of its power by trapping itself in the garb of religion—it
became the manifestation of a miracle (in Hobbes) as theology became secularized (in Carl Schmitt), and
the premise upon which rhetorics of “enemyship,” or Manichaean binaries of good/evil, God/Satan,
could mobilize a population as a “people” (Engels 2010). As a sacred-secular symbol for both a geospa-
tial territory and the social, political, and cultural components that occupy ¶ that space, the state as
organizational metaphor is both the context of, and source for, all subsequent variations on the
language-violence relationship in modern life.¶ If the state is the dominant organizational principle
(i.e., the discursive context for all subsequent speech acts) that derives its rhetorical power from the
delimitation of territorial-jurisdictional boundaries, then bureaucracy is the modern state logic that
divides and distributes the violence of statehood into still smaller enclosures : branches, bureaus or
offices created and defined according to specific jurisdictional-territorial mandates for the efficient
administration and management of localized state violence. With bureau- cratization one sees the
modern state as a fully developed master metaphor, compartmentalizing its otherwise total
monopoly on violence into a network of managerial subordinate power containers. Bureaucratization,
in other words, is the logical second sequence in what Weber describes as the modern state’s process of
“rationalization.” Weber describes rationalization as the teleological march toward a frictionless politics
in a state of pure rationality, and through which the rhetorical power of the state metaphor is totalized
through a process of progressive atomization. This is the historical separa- tion of powers of the state
into the tripartite, constitutional government of the U.S., negotiated and administered according to its
corresponding apologetics of individual freedom and political equality. More crucial, though, when
considering the relationship between the state and violence, are the further divisions of statehood
through which the dominance of bureaucratic logic in state affairs is fully realized. In the U.S., this
included the division of the state into jurisdictional bureaus through legislative mobilizations such as the
1789 Judiciary Act (establishing the Department of Justice and its component bureaus), the 1932 New
Deal, and the 2002 PATRIOT Act.¶ As the volume of second-order bureaucratic enclosures of statehood
increases, so does the reach of bureaucracy extend into the workaday lives of the people. In turn, the
extension of bureaucracy articulates the state through and throughout newly defined administrative
territories as well as new administrative demonstrations of statehood. As the collective offices and
agencies mobilize the rites and demonstrations of state, such as levy- ing and collecting taxes,
administering the means of state citizenship, and enforcing laws, they do so according to the prevailing
apologetics of state power (democratic equality), in accord with the prevailing architecture for the
distribution of that power (liberal reason). Yet in a liberal democracy, there is always the possibility of
further extension (or contraction) of bureau- cratic reach through further and multiple (or fewer and
reduced) enclosures, according to shifts in the dominance of either apologetics. Bureaucracy is thus the
derivative language of the state, a malleable discourse through which the state metaphor orders and
speaks itself. The foundations of the democratic political rationality and state mobili- zation through
bureaucracy are all but intertwined. For Weber, “In politics, the big state and the mass party are the
classic field of bureaucratization”(1978, 969). Liberal democratic states gravitate from the first instance
to the formation of a bureaucratic apparatus, which is uniquely suited to adminis- ter “the abstract
regularity of the exercise of authority, which is a result of the demand for ‘equality before the law’ in the
personal and functional sense” (983). The paradoxical requirements of liberal-democracy—i.e.,
individual liberty and equality among all—are thereby met best by the bureaucratic apparatus, which
functions on the presumption of the “status leveling” effect of abstract justice. “All social and political
initiatives based on fundamental values, in particular for those seeking to realize some conception of
social and political freedom combined with equality, unavoidably play into the furtherance of
monocratic bureaucracy” (Breiner 1996, 136). Bureaucracy is thus, in Weber’s terms, “the means of
transforming social action into ratio- nally organized action’” (1978, 987). Bureaucracy also allows for
the absolute-sovereign function of John Locke’s two-tiered liberal democracy. That is, bureaucracy as
the speech act of statehood allows for both the appearance of democratic rule and the possibility of
absolute control by an autocratic sovereign. Weber notes that “as an instrument of rationally organizing
authority relations, bureaucracy was and is a power instrument of the first order for one who controls
the bureaucratic apparatus” (987). In its day-to-day operation, then, the mobi- lizing discourse of
bureaucracy carries out the public reasons of the state through “rationally organized action.’” Yet Weber
also allows for the (ab) use of bureaucratic power by a single person, its “autocratic,” or executive
controller. While such exceptional deployment of bureaucratic power can and will be met with
resistance from a democratic polity (985), this clash only underscores the hierarchical elevation of the
bureaucratic apparatus over the people in a liberal democracy. Weber describes this development as
bureau- cratic Herrschaft, or domination: “The demos itself, in the sense of a shapeless mass, never
‘governs’ larger associations, but rather is governed....The most decisive aspect here—indeed it is rather
exclusively so—is the leveling of the governed in face of the governing and bureaucratically articulated
group, which in its turn may occupy a quite autocratic position, both in fact and in form” (985).
 Juvenile Reform link
Juvenile prison reform results in increased incarceration and support for the prison
industrial complex
Karakatsanis 19 (Alec, American civil rights lawyer, social justice advocate, co-founder of Equal Justice Under Law, and founder and
Executive Director of Civil Rights Corps. “The Punishment Bureaucracy: How to Think About “Criminal Justice Reform”” 3/28/2019, Yale Law
Journal Volume 128 https://www.yalelawjournal.org/forum/the-punishment-bureaucracy)

And so these punishment bureaucrats are important because they are not outliers . They represent the vast
majority of officials that I interact with in dozens of cities and states as I travel the country working on these issues. Mayors, district attorneys,
city council members, state legislators, attorneys general, sheriffs, police chiefs, and judges are all adopting some of the language of “reform.”
To their credit, many with whom I have interacted genuinely believe that reforms need to be made. And like Bharara, Holder, Yates, and Harris,
they may have spent their careers as punishment bureaucrats pursuing policies that they genuinely believe in. But almost
uniformly,
they lack what is necessary for big change: critical analysis of structural problems, genuine self-
reflection, and organized political support from groups powerful enough to hold them accountable .322
Most reforms being implemented or seriously contemplated suffer from the failure of these bureaucrats to address the nature of the problem.
For example, when many “reformer” officials in California finally announced their opposition to cash bail in the summer of 2018, they passed a
law ending cash bail. But the law was written in secret by punishment bureaucrats,323 and the result was a system that could replace cash bail
with significantly expanded pretrial detention in local jails and that will likely lead to an explosion of for-profit e-carceration324 through GPS
monitoring for people who are released from jail.325 In New York, the death of teenager Kalief Browder outraged the public. Kalief committed
suicide after he endured three years of pretrial detention on Rikers Island—including eighteen months in solitary confinement and brutal
beatings captured on video.326 Invoking Kalief and standing next to Kalief’s brother as he announced “Kalief’s Law,” Governor Andrew
Cuomo used lofty language to announce what punishment bureaucrats portrayed as major “reforms,”
including raising the age of criminal prosecution in some cases and barring children from being
imprisoned with adults. But nearly two years after that announcement, those “reforms” have reinforced the
punishment bureaucracy. More money is being spent by New York to cage children in separate
locations, leading to a boom in the construction of child-detention prisons and an increase in the
number of prison guards; many thousands of children are excluded from the reforms altogether; and
new forms of government control over children’s bodies are expanding. 327 The public learned that even Kalief
Browder would have been excluded from the law that bears his name because the crime for which he was wrongly accused—stealing a
backpack from another child—was too serious to qualify for the reforms.328 In an anecdote that captures “criminal justice reform” culture,
Kalief’s Law led the State of New York to spend $12 million in 2017 to re-open the “Harriet Tubman Center”—a jail for children named after an
abolitionist icon.329 The facility created eighty-five new jobs and now cages disproportionately black children.
 Death Penalty Abolition Link
Death penalty abolition intensifies the state’s ability to kill and punish by other
means, without questioning the networks of power that underpin the carceral system
as a whole.
Dilts 15 (Andrew, Associate Professor Of Political Theory | Loyola Marymount University, “Death and
Other Penalties Philosophy in a Time of Mass Incarceration,” 2015, Death Penalty “Abolition” in
Neoliberal Times: The SAFE California Act and the Nexus of Savings and Security, https://dilts.org/wp-
content/uploads/Dilts-2015-Death-Penalty-Abolition-Death-and-Other-Penalties-2015.pdf, DOA: 6-20-
20) //Snowball

The contemporary practice of execution and its abolition identify a location at which multiple modalities
of power intersect and interact. In this way, both the failure of Prop. 34 and the success of Maryland’s repeal
reflect the persistence of juridical power: a state that kills in a multitude of ways, each exposing the
racial psychodramas of the “American” experience and its penal history . Additionally, the persistence of the death
penalty in law (if not in practice, as actual executions continue to be under a de facto moratorium in California) might be read as a kind of
popular resistance itself. The
difficulty of neoliberalism is that the identifiable spaces of “resistance” appear
smaller and more impossible to carve out. Insofar as the contemporary “abolitionists” have taken on a
distinctively neoliberal and actuarial form, they also remain powerfully attached to disciplinary techniques and
a retrenchment of confinement, forced labor, and death, even if it is now under the “sign of risk” and appears as a
resistance to the state’s power to kill. Perhaps neoliberalism’s distinctive feature is its ability not simply
to displace other strategies but to intensify them and to harmonize even contradictory and heterogeneous strategies. Even
more than its reliance on an economistic language that depoliticizes contemporary death penalty
“abolition” campaigns, we should be concerned by the ease with which that language includes rather
than sets aside demands for permanent exclusion, forced labor, more police, more punishment, and
more prisons. Neoliberalism, in this sense, is “neo” primarily in its reach: everything—all discourses, all practices, all persons
—are professed to be subject to market rationalities . And as such, abolition itself, as a practice of resistance,
can become “completely correlated to the systems of power that were designed to stifle it.” 85

Shortly before France ended capital punishment in 1981, Foucault noted “the
way in which the death penalty is done away
with is at least as important as the doing-away. The roots are deep . And many things will depend on how they are
cleared out.”86 What France was in danger of doing in 1981, Foucault insisted, is precisely what neoliberal abolitionist
strategies are in danger of doing today: failing to question the relation of the death penalty to broader
systems of incarceration and the logics that support it. Once the death penalty is gone, Foucault asked:

Will there be a radical departure from a penal practice that asserts that it is for the purpose of correction but
maintains that certain individuals cannot be corrected , ever, because of their nature, their character, or a bio-
psychological defect, or because they are, in sum, intrinsically dangerous? . . . [T]here is a danger that will perhaps not be evoked—
that of a society that will not be constantly concerned about its code and its laws, its penal institutions and its punitive practices. By
maintaining, in one form or another, the category of individuals to be definitively eliminated
(through death or imprisonment), one easily gives oneself the illusion of solving the most
difficult problems: correct if one can; if not, no need to worry, no need to ask oneself whether it might be
necessary to reconsider all the ways of punishing: the trap door through which the ‘incorrigible’
will disappear is ready.87
In the case of California, this danger was expressly written into Prop. 34 in multiple ways. And as death penalty abolition appears
to be solidly on the track of reconfiguring and intensifying the carceral system but without questioning
penal policy more generally, the danger continues to loom in future cases . If we are to go further, pushing against
simplistic distinctions between life and death and the reigning “death is different” jurisprudence, it becomes clear that abolishing the
death penalty requires that we question not only LWOP sentences but the prison itself, the entire carceral
network, and also the basic grounds and practices of punishment. It may already be much too late,
considering that the fastest growing populations of incarcerated persons in the United States have not even
been convicted of crimes but are persons languishing in immigration detention centers. When pressed to identify what a
“model” prison would look like, Foucault noted that such a thing did not exist. The question of the prison would have to give way to the
question of marginalization in all its forms: “The
problem is not a model prison or the abolition of prisons. Currently,
in our system, marginalization is effected by prisons. This marginalization will not automatically
disappear by abolishing the prison. Society would quite simply institute another means. The problem is
the following: to offer a critique of the system that explains the process by which contemporary society pushes a
portion of the population to the margins. Voilà.”88
 Sentencing Reform Link
Sentencing Reform simply shifts who gets incarcerated without making a dent in the
larger system of mass incarceration
Beckett 2018 (Katherine, Professor in the Department of Law, Societies and Justice and Department of
Sociology at the University of Washington, The Politics, Promise, and Peril of Criminal Justice Reform in
the Context of Mass Incarceration, Annual Review of Criminology, Vol.1 January 2018 245.

Moreover, recent reforms have most frequently authorized diversion and/or shorter sentences for
people convicted of only the least-serious drug and property crimes. For example, reform measures
have mainly targeted drug possession rather than trafficking and theft rather than burglary (Beckett et
al. 2016, Gottschalk 2015). Indeed, in the context of the opiate epidemic, the argument that drug
dealing is an inherently violent crime (Bennett & Walters 2016) poses a major barrier to reform, and
many states have heightened sanctions for drug sales (Natl. Counc. State Legis. 2016). In other words, at
this point, reform remains elusive even for people convicted of many drug and property crimes as well
as for people convicted of violent, sex, and public-order offenses. Yet people convicted of drug
possession and theft make up only 3.5% and 3.6%, respectively, of the state prison population (Carson &
Anderson 2016, table 9). In sum, measures that provide alternatives to incarceration for only the least-
serious nonviolent crimes have the potential to affect only a small proportion of people in prison,
although they may have a slightly larger impact on jail populations. But the impact of reforms that are
limited to nonserious and nonviolent crimes may be restricted for another reason as well. In their
analysis of media rhetoric and legislative reforms enacted from 2000 through 2012, Beckett et al. (2016)
found that reforms pertaining to nonviolent offenses were often legitimated in terms of the need to
ensure that sufficient resources are available to incarcerate people convicted of violent crimes for even
longer periods of time. It thus appears quite possible that late mass incarceration (Seeds 2016) will be
characterized by shorter sentences or diversion for a handful of less-serious crimes such as drug
possession and theft but even longer sentences for violent and sex offenses (and possibly drug dealing).
Given that sentences imposed in the United States for all types of crime are already substantially longer
than those imposed in comparable countries (Tonry 2016) and that one in seven prisoners is currently
serving a life sentence (Nellis 2017), this possibility is quite sobering. Such a shift would have only a
marginal impact on incarceration rates.
Alt
 Problematization Alt
Problematization is an alternative to police solutions that opens up new spaces for
activism by disrupting our understanding of systems of power
Terwiel, 2020 (Anna, Professor of political theory at Trinity College that focuses on carceral feminism
and prison abolition, “Problematization as an Activist Practice” Theory and Event, Vol 23 NO.1 January
2020 66-68

What is to be done? Foucault seems to deprive prison reform of its status as a progressive cause without
offering any alternative. Shortly after his lecture he would be accused of leaving would-be activists
paralyzed, not knowing what to do, a critique that still resounds today.11 But what if part of Foucault's
contribution is to draw attention to the ways in which proposed "alternatives" to incarceration, which
scholars and activists are so often pressured to provide, not only unsettle but also shore up elements of
the carceral system? And what if "troubl[ing] the system we have" need not be paralyzing but can also
open up space for new approaches to harm, repair, and justice? These questions are prompted by
Foucault's problematization approach. Rather than seek solutions to practical policy questions,
problematization aims to disrupt how problems and solutions alike are perceived. Such disruption,
Foucault suggests, enables a radical rethinking of an issue and the creative development of new
approaches. Problematization is usually understood as a style of philosophy that allows individuals to
engage in ethical practices of self-transformation.12 Foucault's archaeologies and genealogies, for
instance, can both be seen as forms of problematization: they use different methods to "clarify and
intensify" the problems of our time and thereby make room for "experimentation on what we take to be
the limits of our selves."13 However, scholars have not yet pursued Foucault's suggestion that
problematization can also be [End Page 67] understood as an activist practice.14 Specifically, Foucault
described the Prisons Information Group [Groupe d'Information sur les Prisons or GIP], an activist
collective he co-founded in the early 1970s, as "an initiative of 'problematization.'"15 This article
considers Foucault's late work alongside his writings for the GIP to theorize problematization as a
collaborative activist practice. Problematization is activist because it seeks to enable social change, and
collaborative because theorists are seen as "relays" in problematization rather than its originators. As I
describe in greater detail below, the GIP formed in a moment of intense political contestation of the
prison and tried to help translate prisoners' grievances, protests, and uprisings into a more generalized
and widely shared "active intolerance" of the prison and punishment. Bringing together insights from
the GIP's activism and Foucault's philosophical writings, I theorize problematization as a way of
responding to protests that seeks to affirm and amplify their disruptive power by unsettling the ways of
thinking used to adjudicate them. This interpretation of problematization, I will suggest, has the
advantage of more clearly connecting the work of radical thinking with practical efforts at change than
Foucault himself was able or willing to. Moreover, it expands the relevance of Foucault's work to prison
politics beyond the tendency to use either specific Foucauldian concepts (such as biopower or
neoliberalism) or scholarly methods (such as genealogy) to analyze punitive practices.16 And in the
context of contemporary debates about mass incarceration, a problematization approach can help
energize critiques of the prison while resisting their limitation to demands for better prisons.17 More
generally, this essay proposes to consider Foucauldian problematization alongside other approaches
that challenge justification and problem-solving as the primary contributions of political theory. Akin to
Judith Butler's critical analysis of the "frames" that justify state violence and reproduce unequal
vulnerability to death across the globe, problematization urges theorists to consider how dominant ways
of thinking enable some practices and lives while obscuring or eliminating others.18 Butler's work
further highlights the importance of problematizing the norms of gender, sexuality, and race that enable
state violence and the unequal distribution of precariousness. Such problematization takes us beyond
Foucault's own analyses of punishment to intersectional feminist analysis,19 critical trans politics,20 and
other scholarly and activist efforts to "trouble the system we have."

Key to activist movements, also challenges the effectiveness of non-reformist reforms

Terwiel, 2020 (Anna, Professor of political theory at Trinity College that focuses on carceral feminism
and prison abolition, “Problematization as an Activist Practice” Theory and Event, Vol 23 NO.1 January
2020 68-70

Foucault's remarks about transformation suggest that unsettling established ways of thinking is a crucial
part of activism. Activists, [End Page 69] after all, seek to generate in others the sense that the present
can and should be changed, and Foucault suggests that "real, profound, and radical change" requires
reconsidering existing "postulates of thought."27 He entrusts this work to intellectuals, who should "try
and isolate in their power of constraint, but also in the contingency of their historical formation, the
systems of thought that have become familiar to us, that appear self-evident and are integral with our
perceptions, our attitudes, our behaviors. One would then need to collaborate with practitioners—not
only to modify the institutions and practices but to reshape the forms of thought."28 Foucault depicts
the work of diagnosing and defamiliarizing our ways of thinking—problematization—as a crucial part of
collective efforts to change practices (such as punishment) and institutions (such as the prison).
Intellectuals, he suggests, should work alongside "very different people such as magistrates, penal law
theorists, penitentiary practitioners, lawyers, social workers, and persons who have experienced prison"
in a shared "endeavor of reflection and thought."29 While these categories are by no means mutually
exclusive—just think of the work of (formerly) incarcerated intellectuals such as George Jackson, Angela
Davis, and Assata Shakur—I will focus, in this essay, on how theorists on the outside can contribute to
prison activism.30 Yet problematization is not typically seen as a collaborative activist practice. Rather,
scholars tend to interpret it more narrowly as a form of philosophy that can inspire ethical self-
transformation. In the most in-depth analysis to date, Colin Koopman, for instance, depicts
problematization as a type of genealogy that, by tracing the emergence of our ways of thinking, provides
the materials needed "to constitute ourselves otherwise" or "rework[…] ourselves."31 The philosopher's
diagnostic work, Koopman argues, should be "followed up by self-transformative responses," i.e. by
"experimentation on what we take to be the limits of our selves."32 Foucault indeed often mentions the
transformative effects of philosophy on the self, and his last published works analyze ethical practices
through which individuals shape their subjectivity, such as dieting and regulating one's sexual
appetites.33 But as I have begun to show, there are grounds for a more political reading of
problematization also, which Koopman does not pursue. My aim is not to draw a sharp line between
ethics and politics, or between individual and collective change, but to ask: What are the political and
theoretical costs of restricting our understanding of problematization to individual ethics? What possible
responses to mass incarceration open up when we approach problematization as a collaborative activist
practice instead? One risk of restricting problematization to individual ethics is that we inadvertently
reinforce the belief that problematization is inappropriate [End Page 70] for politics, understood as a
domain that demands practical solutions to policy issues. Such a view underlies some approaches to
prison reform, such as Roger Lancaster's recent critique of prison abolition.34 When it comes to the
prison, Lancaster argues, the American Left should fight to realize the aim of rehabilitation. The goal
should be to improve the criminal legal system we have, taking Western Europe as an example; asking
why we think prisons make us safer and searching for other approaches to crime and punishment only
furthers the Left's marginalization. As he puts it, the American Left should call for "the kind of social-
democratic reforms that the working classes in other developed countries have benefited from for
decades," rather than "pursue agendas [such as prison abolition] far beyond what any society has ever
reached."35 Lancaster presents the reader with a binary choice between benign reforms and destructive
dreams, but the question of how best to challenge mass incarceration is not so easily settled. As Dan
Berger, Mariama Kaba, and David Stein point out in their critical reply to Lancaster, prison reforms have
not simply improved the US prison system, they have helped expand and entrench it.36 "[R] eforms of
indeterminate sentencing led to mandatory minimums, the death penalty to life without parole, sexual
violence against gender-nonconforming people gave rise to 'gender-responsive' prisons." And yet
abolitionists do not reject reform as such: they often seek to dismantle the prison and improve the lives
of people most affected by incarceration. There is a tension, of course, between the aims of abolishing
and improving the prison. Like other abolitionists, Berger, Kaba, and Stein try to navigate this tension by
calling for "non-reformist reforms": changes that "reduce rather than strengthen the scale and scope of
policing, imprisonment, and surveillance."37 This approach provides a helpful compass for approaching
some reforms: by considering questions of scale and scope, we might come to support decriminalization
of drug use and sentencing reductions, for instance, but oppose the use of GPS-tracking devices as an
alternative to incarceration. The former measures reduce incarceration and criminalization, while GPS
monitoring "has put new populations under state control, expanding the range of people who are
confined in this country."38 But an account of non-reformist reforms remains incomplete if it focuses
only on quantitative factors and does not also address the ways of thinking that inform and help sustain
the prison system. This is where Foucauldian problematization, with its focus on examining and
unsettling existing rationalities, can helpfully supplement existing approaches to prison abolition. Before
it can be used in this way, however, we need to challenge not only the ethical-individualist readings of
problematization but also go beyond some limitations of Foucault's own account

Example of French group that used problematization as a method to challenge the

fundamental necessity of the prison as opposed to just reforming it
Terwiel, 2020 (Anna, Professor of political theory at Trinity College that focuses on carceral feminism
and prison abolition, “Problematization as an Activist Practice” Theory and Event, Vol 23 NO.1 January
2020 68-70

While most interpretations of problematization privilege the philosopher's efforts to think otherwise,
the GIP decenters the figure of the philosopher and foregrounds prisoners' discontent with the prison.
Thus, the group's first act was to create and illicitly distribute in 20 prisons a questionnaire about daily
life behind bars. "Through our questionnaire," Foucault writes, "we want [the prisoners] to be able to
communicate among themselves, transmit their knowledge, and talk from prison to prison, from cell to
cell. We want them to speak to the [End Page 73] population, and we want the population to speak to
them. These experiences, these isolated revolts must become shared knowledge and coordinated
practice."46 Foucault seems to describe a classic vision of collective action enabled by channels of
communication. This impression is reinforced by the GIP's claim that it endeavored to "give the floor"
[donner la parole] to people in prison because they already know what is intolerable about the
penitentiary system. The problem, the group claimed, is that incarcerated people are not heard, that
their claims do not resonate inside or outside of prisons because their knowledge does not count as
truth and because the prison system blocks connections, both among people on the inside and between
the inside and outside.47 In fact, the GIP did not just give the floor to people in prison: it helped
problematize the prison by collecting and disseminating prisoners' experiences of incarceration under
the heading of "intolerance." The group published the results of the survey in the first of five booklets in
a series called Intolérable,48 and in an interview, Foucault described the questionnaire as an
"intolerance inquiry" [enquête-intolérance] that served not to "accumulate data, but to increase our
intolerance and turn it into an active intolerance."49 Rather than judge the prison by its stated
objectives or justifications, for instance declaring it unjust or immoral because it does not rehabilitate
people or treat them humanely, the claim that the prison is "intolerable" calls into question both the
self-evidence and the desirability of the prison as an institution. It displaces the conventional
frameworks through which the prison and punishment are understood, which would object to
imprisonment in some cases (for instance in the absence of due process, or if prison conditions
amount to "cruel and unusual" punishment) but justify it in others. By connecting prisoners'
experiences to the intolerability of the prison, then, the GIP facilitated the translation of individual
grievances into a broader problematization of the prison. Had the group entitled its survey and
subsequent booklet Human Rights Abuses in French Prisons, for instance, it would have accomplished
many of the goals outlined by Foucault (such as enabling communication both among prisoners and
across prison walls), but it would not have questioned the guiding rationalities of the prison. Specifying
the problem in this way is appealing because it suggests a clear solution: more human rights in prison.
However, problematization suggests that the appeal of problem-solving obscures a more unsettling
alternative: the open-ended questioning of existed ways of thinking and the practices they inform. The
GIP further practiced problematization by focusing on ordinary, everyday experiences of incarceration.
The group emerged in the wake of hunger strikes by incarcerated members of the outlawed Maoist
group Gauche Prolétarienne, who demanded—and were refused—political prisoner status. But the GIP's
intolerance inquiry [End Page 74] does not distinguish between political and non-political prisoners, and
it does not focus its critique on exceptional or extreme prison conditions. Rather, most of the questions
on the GIP's survey ask about such mundane things as the number of showers per week, how often
meals include meat or fruit, and whether people have access to radios or movie screenings. Some take a
more explicitly critical angle and ask about "intolerable" aspects of daily life and about harms
experienced in prison, such as assaults, harassment, and health issues. All in all, the inquiry suggests
that the prison in its ordinariness—its daily routines as they are usually experienced by common-law
prisoners—is intolerable. In this way, too, the GIP's inquiry can be understood as an effort of
problematization: it draws attention to assumptions, habits, and practices that guide our thinking and
that usually go unchallenged. One such habit might be to think of punishment as a practice of taking
away and of the prison as a site of absence or lack. While it is true that people in prison are denied
fundamental rights (such as the right to free movement and free association), the GIP's survey reveals
how the prison actively regiments and controls most aspects of prisoners' daily life. As another member
of the GIP later put it, incarcerated people are subjected to "constant humiliations": they are made
vulnerable to punishment for an endless list of infractions that are more or less arbitrarily enforced by
prison staff.50 The GIP's activism suggests that problematization is embedded in a multi-nodal field. In
case of the survey, the GIP took the initiative by soliciting information and expressions of discontent
from prisoners, which it then edited and disseminated under the heading of intolerance. In other cases,
the GIP responded to uprisings and protests in French prisons by holding press conferences, organizing
demonstrations, and publishing pamphlets.51 But even the group's formation can be understood as a
response to prison protests: not just the hunger strikes by the incarcerated members of Gauche
Prolétarienne, but also the broader contestation of prisons sweeping western Europe and the United
States since the 1960s.52 Thus, the problematization approach can be understood as a distinct practice
of response to discontent with, and contestations of, a given practice or institution. Theorists can lend
their support not just by judging protests or demands to be legitimate, but rather by taking such
discontent as starting points to call into question the ways of thinking that inform and help sustain the
practices and institutions that are being challenged. As I will now discuss, problematization can be
understood as a practice of relaying both knowledge and discontent in order to unsettle widely held
beliefs and the institutions in which they are embedded. [End Page 75]
 Impacts
Biopower ensures the devaluation of life and creates a feedback loop of societal
classification that leads to death.
Agamben 98 (Giorgio, professor of philosophy at university of Verona, Homo Sacer: Sovereign Power
and Bare Life, pg. 139-140)

3.3. It is not our intention here to take a position on the difficult ethical problem of euthanasia, which
still today, in certain countries, occupies a substantial position in medical debates and provokes
disagreement. Nor are we concerned with the radicaliry with which Binding declares himself in favor of
the general admissibility of euthanasia. More interesting for our inquiry is the fact that the sovereignty
of the living man over his own life has its immediate counterpart in the determination of a threshold
beyond which life ceases to have any juridical value and can, therefore, be killed without the
commission of a homicide. The new juridical category of “life devoid of value” (or “life unworthy of
being lived”) corresponds exactly—even if in an apparently different direction—to the bare life of homo
sacer and can easily be extended beyond the limits imagined by Binding. It is as if every valorization and
every “politicization” of life (which, after all, is implicit in the sovereignty of the individual over his own
existence) necessarily implies a new decision concerning the threshold beyond which life ceases to be
politically relevant, becomes only “sacred life,” and can as such be eliminated without punishment.
Every society sets this limit; every society—even the most modern—decides who its “sacred men” will
be. It is even possible that this limit, on which the politicization and the exceprio of natural life in the
juridical order of the state depends, has done nothing but extend itself in the history of the West and
has now— in the new biopolitical horizon of states with national sovereignty—moved inside every
human life and every citizen. Bare life is no longer confined to a particular place or a definite category.
It now dwells in the biological body of every living being.

The prison complex creates conditions for permanent warfare and massive structural
violence – the impact is extinction
Gordon 6 – Professor of sociology at UC Santa Barbara and the author, most recently, of Keeping Good
Time: Reflections on Knowledge, Power, and People

(Avery, “Abu Ghraib: Imprisonment and the War on Terror,” Race Class 48.1, August 2006, p. 42-59, doi:
10.1177/0306396806066646)

War and peace Being or becoming the enemy returns us to the complicated imbrication of
imprisonment and war with which I began. An increasingly perma- nent captive population in the US has
been created out of the spoils of Indian wars, civil wars, anti-communist cold wars, wars on crime, wars
on drugs and now a war on terror. While war has always been the hand- maiden of captivity and
imprisonment, what is distinctive in the post- second world war period is the invention of perpetual
wars, general wars without end, made on false promises of security and waged against ever shifting
spectral enemies, driven by ideologies of order and counter-insurgency and by policies to contain and
quarantine the effects of global poverty.34 Endless war, endless captivity. Permanent war, perpetual
prisoners of war. In the early history of warfare, there was no recognition of a status of prisoner of war,
for the defeated enemy, considered the property of the victor, was either killed or enslaved by him.
Despite the Geneva Convention and international laws governing the conduct of warfare, the US has
retained, as befits the imperial power it is, the ancient right of the strong and the conqueror to enslave
fallen enemies. Thus, in the war on terror, there are no longer any prisoners of war in the modern, post-
Westphalian sense, only ‘enemy combatants’, fallen captives. Here, in the new permanent security war,
the ‘foreign’ enemy captured, tortured, ritually humiliated, detained indefinitely, often secretly, tragi-
cally finds his complement in the ‘internal’ enemy. Both are the raw material of an organised
abandonment in the service of a parasitical war economy; both are subjects of a corrupt, malleable law
that indicts without substantive representation; both are subject to a crushing punishment, renamed
administration. And the social death and dis- honour of both are presented as the necessary price for
‘our’ safety and security. (Sometimes, of course, the external and the internal enemy are one and the
same). These are the terms of the war on terror the US is waging and soliciting in every part of the
world. It does not act alone, however. Europe’s xeno-racist carceral complex for refugees, asylum
seekers and the economically precarious; Israel’s genocidal occupation and enclosure of the Palestinians
in a concentration camp state; South Africa’s adoption of a US-style war on crime and its consequent
imprisonment of ever larger numbers of black youth (sadly the Soweto generation and their children);
soaring rates of imprison- ment (the second highest in the world) in Russia and its previously or
presently occupied territories, Turkmenistan, Ukraine, Kazakhstan, Latvia, Lithuania, Estonia, Kyrgyzstan,
Moldova and Chechnya; the transformation of the Caribbean Basin into an off shore-banking- tourist-
prison archipelago . . . And so on, and on, and on.35 Increas- ingly, long-term captive populations
worldwide are being created by a ‘global state security apparatus’ with many participating nation states
facilitating the fastest growing business sector in the world.36 Bloated militarism in a crushing world
economy dependent on the ‘productive’ destruction of places, communities, social wealth, shared
intelligence and the systematic abandonment of entire peoples pave the road to ruin upon which the US
and its allies travel. This way of life is not sustainable, despite the imperial announcements of victory
and invincibility. In the meantime, it is necessary to raise the call and the movements for the abolition of
permanent war and the captivity and negation that accompany it. Worldwide, most individuals do not
favour (and many actively oppose) the occupation war in Iraq. Even in the US, where majorities have
supported it, these are declining. This presents an opportunity to transform strong sentiment against
one war in Iraq and its estimated $700 billion price tag into a stronger movement for what Seymour
Melman liked, after a lifetime fighting for it, to just call conversion – the transition from a militaristic or
war social economy to a peace social economy.37 This will involve, as a first step, understanding the
broader patterns underlying the behaviour of soldiers and police in Iraq and the larger context in which
the mili- tary prison operates, and bringing these understandings as necessities into the political
mobilisations against the war in Iraq and the ongoing war on terror. Mass imprisonment and organised
abandonment play a central role today in the perpetuation and expansion of a ‘secure’ or security-
centred world economy and in its extreme and untenable social costs, one of which is our young people
and their right to a future, to a destiny determined by themselves. One of the ugliest and most
suppressed facts about the expansion of imprisonment in the world today, whether in the US or France
or the United Kingdom or South Africa or Brazil or Turkey or Nigeria, is that the vast majority of the
world’s prisoners are young. As are its soldiers. And thus our young men and women alike, our most
vulnerable young, those in need of the greatest care and protection, are increasingly faced with the
choice – rendered starkly in the photos taken at Abu Ghraib and in the US’s insistence that Iraqi
independence be contingent on its possessing a US-approved militarised police force – of being prisoner
or police/soldier. The Mothers of the Plaza de Mayo, the mothers of the ‘disappeared’, would call this
state of affairs, military civil authoritarianism. It is a contraction of possibility for living – a captive
destiny – that is a cruel patrimony and a shameful inheritance. Peace is never just the absence of a war;
it is, as Melman described it, the ‘moving peacefully’ towards the elimination of institutions and
decision-making powers that plan, make, support and love war. It is necessary today, yet it is
inconceivable without the abolition of its adjunct, mass imprisonment.
AT: Common Args
 Perm
The perm fails – only a complete rejection of politics can solve
Colebrook and Maxwell, 16(Edwin Erle Sparks Professor of English at Pennsylvania State University
AND teaches and researches at Pennsylvania State University (Claire and Jason, “Indifference,”
Agamben pg 158-161,)

Agamben sets himself squarely against the anti-Hegelian tradition that runs from Nietzsche to Foucault
and that begins with force and power - or a pure act of difference - and then explains bodies and
identities as the outcome of forces; this also means that he sets himself against a politics of agonistics. In
political terms, the challenge, for Agamben, is to imagine a genuine or profound politics prior to an
already constituted political field: not the law as enforced and constituted, but something like the
constituting power from which any law would emerge, though without seeing that constituting power as
pure decisive force. This is what is evidenced in the state of exception, which - Agamben constantly
reminds us - exposes the operation of the law precisely when law ceases to operate. The state of
exception is no longer politics as the war of differences and the field of contested relations, but
something like a revelation of indifference, exposing sov ereign power as that which is not yet, or not
always, constituted within the network of relations: In truth, the state of exception is neither external
nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a
zone of indifference, where inside and outside do not exclude each other but rather blur with each
other. (SE: 23) For Agamben, this indistinction and indifference mark an almost complete annihilation of
the political; it is no longer the polity (or bodies coming together to -speak and determine the good) that
characterizes the contemporary milieu. This loss of the political, where speech, reason, decisions, and an
ongoing order oriented to a created future break down, not only exposes the truth of politics as always
harboring a logic of sovereignty; it also offers hope for a new conception of the relation between life and
politics, which for Agamben would be no real relation at all. In this respect, for Agamben, there is a
radicalism in what other intellectuals of Agamben' s time criticized as the closure of Hegelian politics: for
Agamben, there is a genuinely futural promise in a messianic version of Hegelianism where law will no
longer be opposed to life, and the differences within which we live will no longer be accepted as the way
of the world: That Hegel's dialectic is nothing more than a secularization of Christian theology comes as
no surprise; however, more significant is the fact that (with a certain degree of irony) Hegel used a
weapon against theology itself and that weapon is genuinely messianic. (TR: 99) Agamben insists that
the "properly political" nature of life lies in the capacity not to be political. If "man" can be reduced to
bare life, then we are forced to confront a remainder of life that is not that of sovereign self-willing;
what might politics be if this life were not excluded and abandoned, and not the object of biopolitical
management? We might begin to discern that actual political reality unfolds from a potentiality that is at
its most profound when it is fully related to impotentiality, when the political realm appears as always
what might not have been, what we may not have brought into being. This means not only that politics
might be different from its actual form, but - more importantly - that politics is a potentiality that is not
grounded on life, but comes into being through the forming of life, establishing a relation that is not so
much a secure binary or unity as a zone of indifference or indistinction. Whereas we might look
nostalgically back to an age of politics where there was a clear distinction between the
biological/physical/natural domain of managing life, and the human discursive deliberative space of
politics, and even if it often appears as though Agamben is lamenting the increasing reduction of all life
to bare life, his response is not to reassert the domain of human dignity and some proper space of
sovereign decisions, but rather to emphasize an "original" indistinction. That is, it is always possible that
humanity might not constitute itself in a separate and deliberative space of political community and
discussion; nothing guarantees the distinction between bios (political, formed, deliberative life) and zoe
(life as living substance). The condition of homo sacer or of not being a participant in the law, and of
being abandoned to the outside of all law and decision, is a condition that haunts every political being.
Rather than returning to some supposed golden age of genuine political thought and practice, Agamben
focuses on how it is that the states of emergency reduce us all to possible bare life or homo sacer. What
we know as the political might always be abandoned, and it is this absence of political relations (exposed
in homo sacer where the human body is placed outside the law's protection and maintenance) that
discloses our political potentiality by way of impotentiality. That is, what truly needs to be questioned is
the emergence of the political: how is it that humans do not exist at the level of mere life and existence
but can generate a form of life and decide upon another world? In the usual sovereign situation it seems
that there has been an easy passage from pre-political potential life to politically formed life. We think
of humans as social, speaking, rational, and productive beings who create systems of law. In states of
emergency, that natural or seemingly natural continuity is lost and the "life" that seemed to be so
naturally, universally, and inevitably social and political appears as bare life: we are reduced to
populations to be managed, with decisions based not on our speaking, reasoning, political nature but on
the survival of the species. On the one hand, we can descry this modern condition that appears to
become a permanent state of emergency: this applies not only to the "war on terror" (where democratic
procedures are suspended for the sake of executive orders that reduce citizens to nothing more than
mere life), but also to economic crises (where democratic local governments have been suspended and
substituted by immediate managerial takeover) and the broader problem of climate change (where the
imminent demise of the world's ecosystem and resources might require some form of overriding
intervention, commonly referred to as "ecofascism" (Smith 2009)). On the other hand, Agamben's
insistence that the current biopolitical situation is not a different logic from sovereignty precludes us
from yearning for some prior notion of proper politics. This is Agamben' s point: there is no proper
politics. Nothing guarantees that all those factors that make politics possible - a capacity to speak,
decide, create, think, enter into community relations - will emerge. To imagine that there is a proper and
direct relation between life and politics, between life and community, between life and speech, or
between life and art precludes a consideration of the threshold that brings relations into being.

Bio-poltical control is constantly shifting – the permutation doesn’t solve

Dillon & Guerrero 2008 (Michael and Luis L., Phd in international studies and head of Department of
Security and War at Lancaster University, Deputy Postgraduate Research Director, Research Institute for
Law, Politics and Justice, Biopolitics of Security in the 21st Century, Review of International Studies,
January 2008, pp.4-6)

This paper does precisely that. It explains how the

biopolitics of biopower is necessarily also allied with freedom
and what kind of ‘freedom’ is understood to be at work in it. In explaining precisely what Foucault understands, in
addition, by ‘security’, and how this understanding of security differs from traditional geopolitical accounts of security derived from ontologies
and anthropologies of political subjectivity, the paper also clarifies why Foucault concludes that biopolitics simply is a “dispositif de sécurité”.
Strictly speaking, therefore, there is no biopolitics which is not simultaneously also a security apparatus . There is
no biopolitics of this, or a biopolitics of that. When one says biopolitics one says security ; albeit in a certain way. Biopolitics
arises at the beginning of the modern age but it does not spring fully formed at its beginning. It would run entirely counter to Foucault’s
approach to the analytic of power relations to pretend otherwise. While acknowledging a certain kind of precursor in the pastoral power of the
Church, with which it appears superficially similar but from which it diverges in its specificities, what Foucault begins to draw-out is the logic of
formation which takes hold when power takes species life as its referent object, and the securing of species life becomes the vocation of a
novel and emerging set of discursive formations of power/knowledge. This biopolitical logic of formation also expresses a
new and emergent experience of the real. A logic of formation is therefore historical, local and particular. It
also installs an ontopolitics as it experiments with novel ensembles or technologies of social practi ce.
However generalised it may become, biopolitics is not itself a universal phenomenon. It is the actualisation
instead of a specific historical and, we would argue, evolving economy of power relations. Such
ensembles of practices do not actualise themselves in perfect realisation of their logic. First, because
their logic is always a contested epistemic object for them . Second, because things always change in unintended ways.
Biopolitical security practices do not articulate a design in nature. They are contingent achievements
reflecting the partial realisation of designs which seek to enact ‘natures’. In the process, there are
slippages and breakages, shifts and revisions, for which the original drivers and concerns of biopolitics no
longer account. There is nothing unusual in this. It would be unusual if it did not happen. Mutation of the biopolitical order
of power relations has continued tomerely entailed a change at the level of practice. Any change in
practice is simultaneously also accompanied by a change in the experience of the real. In general terms the
shift in the nature of the real associated with biopolitics, now, is captured by the term ‘emergence’.

the affirmative narrative of law purging itself of past mistakes is an illusion, - allows
manipulation of history in the name of a shining future that will never arrive.
Amy Kapczynski - Post-Doctoral Fellow in Law & Public Health, Yale Law School. J.D. - February, 2005
26 Cardozo L. Rev. 1041 “THE FUTURE OF A PAST: HISTORICISM, PROGRESS, AND THE REDEMPTIVE
CONSTITUTION” [nfb]
Benjamin's historical project went "hand in hand with an immanent critique of the concept of progress." 151 Benjamin understood
progress as a worldview with deep roots in the Enlightenment. 152 His primary example of progressive thought came, however, not
from philosophy, but from the German Social Democratic Party (SPD), whom Benjamin accused of having a "conception of progress
which did not adhere to reality but which made dogmatic claims." 153 At the time of Hitler's rise to power, the SPD was the largest
political party in Germany, but its response to the Nazi threat was remarkably tepid, even conciliatory. 154 Benjamin - along with
many historians 155 - attributes this to the SPD's conviction that they would eventually and inevitably prevail, that all they had to do
belief in progress, he
was keep strictly to a legal framework and their party and ideas would attract growing support. The SPD's
asserted, conditioned their view that fascism was just a phase, and that they were the ones truly
"moving with the current" of history. 156 The belief in progress engendered their "conformism," and
their "servile integration into an uncontrollable apparatus," in which Benjamin saw disaster. 157
"Progress as pictured in the minds of Social Democrats," Benjamin writes, "was, first of all, the progress of mankind itself (and not
just advances in men's ability and knowledge). Secondly, it was something boundless, in keeping with the infinite perfectibility of
mankind. Thirdly, progress was regarded as irresistible, something that [*1083] automatically pursued a straight or spiral course... ."
Benjamin
158 These predicates are central to how Benjamin characterizes the progressive sensibility, and why he rejects it. First,
identifies progressivism with the conviction that mankind [sic] "itself" can improve. This is a criticism
of a mathematical logic that measures success against an average, ""dismissing the claims of
individual eras or individual men and ... ignoring all their misfortune, provided that mankind [sic] as a
whole has made progress.'" 159 Indeed, how is it possible to assert that mankind "as a whole" makes progress when some
members do not? The concept of mankind here gives a patina to a claim that is, at heart, about the advance of some rather than all.
Benjamin rejects this view, asserting that ""there can be no progress which does not add to the happiness and perfection of those
individuals who previously suffered an imperfect lot.'" 160 The second claim that Benjamin associates with progressivism is the
notion that the horizon of progress is infinite, that mankind is infinitely perfectible. He writes, it was inevitable that the concept of
progress should run up against the critical theory of history the moment that progress was no longer presented as a measure of
specific historical changes, but rather as a measure of the span separating a legendary beginning from a legendary end of history.
In other words: as
soon as it becomes the signature for the course of history in its totality, the concept of
progress is associated with an uncritical hypostatization rather than with a critical placing into
question. 161 As is evident from the discussion of Benjamin's theory of history above, he rejects the notion that
history can be viewed or summed up as whole. Progressives thus err when they impose upon the
infinitely rich past and unknowable future a vision of totality . The kingdom of God, Benjamin insists, "is not [the]
aim but [the] end" of history. 162 The last tenet of progressivism is that mankind not only can become perfect, but that it will, as a
matter of course. Progressives believe that history is on their side, and that their views will inevitably [*1084] triumph. No fact
 They can retrofit any past or
from the past or present has the power to disrupt or derail the narrative that they tell. 163
present event in order to make it match their concept of history. 164 Benjamin thinks that this tendency
makes progressives complacent and undermines their ability to both see and react to the dangers of
the present, because it privileges an attachment to the ideology of advance over any evidence to the
contrary. No one can prove a progressive wrong when he [sic] insists that things will be better
tomorrow, or if not tomorrow, then the day after tomorrow, or maybe the day after that. Because the
belief in progress determines the trajectory of history in advance, it robs us of the capacity to
experience what is actually happening in the present. Or, as Benjamin puts it, "the current amazement that the
things we are experiencing are "still' possible in the twentieth century is not philosophical. This amazement is not the beginning of
knowledge - unless it is the knowledge that the view of history which gives rise to it is untenable." 165 For Benjamin, an
faith in progress, or texts, or political practices that guarantee our eternal advance, is a
Enlightenment
dangerous, pacifying delusion. Benjamin's view echoes that of Abraham Lincoln, as expressed in his address to the
audience at the Young Men's Lyceum of Springfield: But, it may be asked, why suppose danger to our political institutions? Have we
not preserved them for more than fifty years? And why may we not for fifty times as long? We hope there is no sufficient reason. We
hope all dangers may be overcome; but to conclude that no danger may ever arise, would itself be extremely
dangerous. There are now, and will hereafter be, many causes, dangerous in their tendency, which have not existed
heretofore ... . 166 [*1085] Like Lincoln, Benjamin suggests that the potential dangers of treating the future as
foreordained will always outweigh the benefits. Vigilance may have costs, but they are less than the
costs of complacency. Benjamin thus rejects the progressive view that we ought to measure injustice on average rather than
with particularity, that it is possible to leave the past behind and to achieve heaven here on earth, and that we should relinquish our
powers of perception in favor of a belief that the future will always be brighter. What these three concepts have in common, he says,
is their sense of "progression through a homogenous, empty time." 167 Benjamin insists that "[ a]
critique of the concept of
such a progression must be the basis of any criticism of the concept of progress itself ." 168 Such a
critique would lead us to the realization that "history is the subject of a structure whose site is not a
homogenous, empty time, but time filled with the presence of the now [Jetztzeit]." 169 I will discuss
Benjamin's notion of Jetztzeit in Part IV, infra. For the moment, it is sufficient to note his most fundamental critique of progressivism
is that it eviscerates our ability to perceive and act upon the present. The belief in progress, Benjamin insists, requires us to
relinquish our ability to connect to a past that could motivate and orient change in the present. This is figured vividly in Benjamin's
image of the angel of history: His face is turned toward the past. Where we perceive a chain of events, he sees one single
catastrophe which keeps piling wreckage upon wreckage and hurls it in front of his feet. The angel would like to stay, awaken the
dead, and make whole what has been smashed. But a storm is blowing from Paradise; it has got caught in his wings with such
violence that the angel can no longer close them. This storm irresistibly propels him into the future to which his back is turned, while
The belief in progress propels the angel
the pile of debris before him grows skyward. This storm is what we call progress. 170
preventing him from attempting to undo the catastrophe that historical forces have not
into the future,
ceased to produce. Disaster ensues because causal forces from the past continue to operate today ,
throwing wreckage at the angel's feet. Benjamin did believe in historical causes, forces that persist through time and have political
effects. 171 As Holmes once quipped, [*1086] "historic continuity with the past is not a duty, it is only a necessity." 172 Benjamin
would have agreed, for he believed that we can act to rescue the present from catastrophic wrongs. The past can be an important
tool in this fight, and Benjamin believed that we must seize hold of it when it flashes up, offering us a chance to perceive and to act.
173 In his account, there are several reasons the past can be useful to those seeking to act in the present. First, wrongs are
conditioned by historical forces, and we must understand these forces in order to act against them. Second, addressing ourselves to
the facticity of the past (when conceived of as all of that which has come before, rather than as the spoils of tradition) can help us
disrupt narratives of heritage and progress that blind us to possibilities past and present. Third, it is in the past that we find the affect
that drives us to act in the present. As Frank Michelman once asked: ""Without the past, ... who am I? ... Who are we? ... Without a
sense of our identity, how do we begin to make a case for anything? Without mining the past, where do we go for inspiration?'" 174
Progress narratives give up too much when they profess to leave the past behind; what they leave
behind is a part of the present. And that which they give up may well be something that we have yet to
experience or understand, but that lives on, continues to have effects, and colors our vision of both the possible
and the just. For Benjamin, to discard elements of the past is to discard possible ways of understanding the present, and an
essential component of our ability to change it. C. Constitutional Progressives The belief in progress of which Benjamin spoke is
endemic to constitutional thought today. Although it is distinct from the progressivism of the SPD, it nonetheless partakes of the
sensibility of which Benjamin spoke. Progressivism makes itself felt in all arguments that project constitutional history as a rising
rather than fixed star. Progressives place their bets on the future. They offer a picture of our constitutional
past as a march of progress, from status to contract, from exclusion to inclusion, from We the
Propertied White Men, to We the [*1087] People that are also unpropertied, of color, women, and so
on. It treats this movement as unidirectional, running from less to more freedom, and it considers the Constitution the
vehicle of this advance. Applied to the Constitution, Benjamin's concept of progress is a marriage between what Robert
Gordon calls progressive and teleological forms of history. For Gordon, "a narrative of progress is one in which the
legal system is seen as obeying a long-term process of historical transformation - e.g. from feudalism to
liberal capitalism, status to contract, subordination to equality," and "a teleological narrative is one which shows legal
forms working themselves pure over time to reveal their core of immanent principle." 175 Believers in
constitutional progress thus see past majorities and understandings as less enlightened , less free, and less
equal, than We the People in the present. Like Benjamin's progressives, they adopt a "soft" approach to the
constitutional past, seeking to leave most of it behind. 176 For progressives, our constitutional order is legitimate
because it allows us to govern ourselves in the present in a way that permits our collective advance. The only use of history is to
demonstrate that this is so. Progressives
must disavow any notion that we, or our legal structures, might
continue to feel the profound effects of injustices in the past. The progressive approach to constitutional history
asserts that, in all the ways that really matter, the evils of our constitutional past have really been overcome.

The alternative is ideologically incompatible with the epistemic framing of the 1AC—
they cannot separate the plan from its normative assumptions.
Krasmann 12 (Susanne, Institute for Criminological Research, University of Hamburg, “Law’s
knowledge: On the susceptibility and resistance of legal practices to security matters,” Theoretical
Criminology, 379–394, 2012, DOI: 10.1177/1362480612446775, DOA: 6-26-2018)

Traditional problems in the relationship between law and security government within this debate form a point of departure
of critical considerations:2 emergency government today, rather than facing the problem of gross abuses of power, has to
deal with the persistent danger of the exceptional becoming normal (see Poole, 2008: 8). Law gradually
adjusts to what is regarded as ‘necessary’.3 Hence, law not only constrains, but at the same time also authorizes
governmental interference. Furthermore, mainstream approaches that try to balance security and liberty are rarely
able, or willing, to expose fully the trade-offs of their normative presuppositions: ‘[T]he metaphor of
balance is used as often to justify and defend changes as to challenge them’ (Zedner, 2005: 510). Finally, political responses to
threats never overcome the uncertainty that necessarily accompanies any decision addressing future events. To ignore this uncertainty, in
other words, is to ignore the political moment any such decision entails, thus exempting it from the possibility of dissent.

Institutional arrangements that enforce legislative control and enable citizens to claim their rights are
certainly the appropriate responses to the concern in question , namely that security gradually seizes
political space and transforms the rule of law in an inconspicuous manner. They establish political spaces
of dispute and provide sticking points against all too rapidly launched security legislation, and thus may foster a ‘culture of
justification’, as David Dyzenhaus (2007) has it: political decisions and the exercise of state power are to be ‘justified by law’,
in a fundamental sense of a commitment to ‘the principles of legality and respect for human rights’ (2007: 137).
Nonetheless, most of these accounts, in a way, simply add more of the same legal principles and institutional
arrangements that are well known to us. To frame security as a public good and ensure that it is a
subject of democratic debate, as Ian Loader and Neil Walker (2007) for example demand, is a promising alternative to
denying its social relevance. The call for security to be ‘civilized’ , though, once again echoes the truly
modern project of dealing with its inherent discontents . The limits of such a commitment to legality and a political ‘culture
of justification’ (so termed for brevity) will be illustrated in the following section. Those normative endeavours will be challenged subsequently
by a Foucauldian account of law as practice. Contrary
to the idea that law can be addressed as an isolated, ideal body
and thus treated like an instrument according to normative aspirations , the present account renders law’s reliance on
forms of knowledge more discernable. Law is susceptible, in particular to security matters . As a practice, it constantly
transforms itself and, notably, articulates its normative claims depending upon the forms of knowledge
brought into play. Contrary to the prevailing debate on emergency government, this perspective enables us, on the one hand,
to capture how certain forms of knowledge become inscribed into the law in a way that goes largely
unnoticed. This point will be discussed on the example of automated surveillance technologies, which facilitate a particular rationality of
pre-emptive action. The conception of law as a practice , on the other hand, may also be understood as a tool of
critique and dissent. The recent torture debate is an extreme example of this, whereby torture can be regarded as a touchstone of law’s
resistance to its own abrogation.

Law and reasoning

The idea that a political and juridical ‘culture of justification’ would be able to bring about the desired results
should be treated with caution—for one thing, with regard to the particular logic of legal reasoning and justification and, for another
thing, because of at least two empirical observations that shed light on law’s limitations vis-a-vis the governance of security. First of all, the
establishment of a ‘culture of justification’ itself presupposes what has yet to arise, namely a common concern about
governmental encroachment in the name of security and a willingness of all parties to join in that
discourse, if not share in its related arguments. This presupposition, to be sure, is indispensable for inspiring communication
and facilitating the exchange of arguments . Moreover, in order to take effect the tried and true liberal legal principles, like that of
proportionality and necessity, clearly need to be concretized by reasoning about actual cases. Yet, the assumption of a common
concern goes hand in hand with a general trust in a form of communicative reason that will allow for
transparency eventually on the matters at stake. Reason and to reason within ‘a transparent, structured process of
analysis to determine what degree of erosion is justifiable, by what measure, in what circumstances, and
for how long’ (Zedner, 2005: 522), is considered basic to the solution. However, just as legal norms and principles
are open to interpretation, they do not determine any normative orientations underlying the
interpretative process. As Benjamin Goold and Liorna Lazarus (2007b: 11; see also Poole, 2008: 16) observe: ‘[P]re-emptive
measures designed to increase security can never be truly objective or divorced from our political concerns
and values.’ Typical for the acknowledgement of competing claims still to be weighed (Zedner, 2005: 508), therefore, is that they end
up being couched in a rather appealing rhetoric (‘we should’, ‘judges should’). In a liberal vein, this requires a
resorting to the least intrusive measures. Competing claims are thus relegated to the normative framework of
balance (see Waldron, 2003; Zedner, 2005: 528).
As regards the empirical observations, there is, first, a move in security legislation that is noticeable in western countries in which the threshold
of governmental intervention has been gradually disposed in order to forestall actual offences, concrete suspicion and danger. 9/11 may be
regarded as a catalyst here, as well as the fight against terrorism in general. But rather than being recent phenomena, these transformations in
fact represent a continuity over decades in the identification of ever new dimensions of threats, from sexual offenders and organized crime
right up to transnational terrorism.4 Although a tendency can be discerned, this is not to suggest that there have not been any disruptions to it.
Civil and human rights organizations have time and again countered these developments, and so have higher-court rulings. Even new basic
rights have been established.5 Though successful, these processes were unable to thwart the general trend of making private space accessible
to surveillance in a way that would have been unimaginable decades ago. In this sense, paradoxically,
new basic rights are rather
indicators of new spaces of vulnerability . A closer look at higher courts’ decisions on security legislation and
additional recommendations by human rights bodies suggests that these lead to the amendment of the laws
in question but not necessarily to a change in practice. ‘For, as law becomes ever more closely
intertwined with a proliferating assemblage of expertise , risk consulting, administration, and discretion, it inhabits an
inescapable paradox’, as Louise Amoore (2008: 849) neatly put it. Law for civil and human rights activists and lawyers is the very
medium for challenging governmental encroachment, and, notably, the ‘rule of law’ represents the very
principle to be defended. Under review, however, law encounters its own legislation—the modes of risk
management it once itself authorized, and that will now have to be amended in accordance not only
with the principles of the rule of law but also with the identified necessities of security government
 At sovereignty/biopolitics good
Our concepts of sovereignty and modern biopoltiics are at the literal root of violence,
without abandoning them our political systems can only recreate violence
Agamben 2000 ([Baruch Spinoza Chair at European Graduate School EGS, is a
professor of aesthetics at the University of Verona, Italy and teaches philosophy at the
Collège International de Philosophie in Paris and at the University of Macerata in
Italy], “Means Without Ends: Notes on Politics” )

The concepts of sovereignty and of constituent power, which are at the core of our political tradition,
have to be aban- doned or, at least, to be thought all over again. They mark, in fact, the point of
indifference between right and violence, nature and logos, proper and improper, and as such they do
not designate an attribute or an organ of the juridical system or of the state; they designate, rather,
their own original structure. Sovereignty is the idea of an undecidable nexus between violence and
right, between the living and language-a nexus that neces- sarily takes the paradoxical form of a
decision regarding the state of exception (Schmitt) or ban (Nancy) in which the law (language) relates
to the living by withdrawing from it, by a-bandoning it to its own violence and its own irrelatedness.
Sacred life the life that is presupposed and abandoned by the law in the state of exception-is the mute
carrier of sovereignty, the real sovereign subject. Sovereignty, therefore, is the guardian who prevents
the undecidable threshold between violence and right, nature and language, from coming to light. We
have to fix our gaze, instead, precisely on what the statue ofJustice (which, as Montesquieu reminds us, was to be
veiled at the very moment of the proclamation of the state of exception) was not supposed to see, namely, what nowadays
is apparent to everybody: that the state ofex- ception is the rule, that naked life is immediately the
car- rier of the sovereigu nexus, and that, as such, it is today abandoned to a kind of violence that is all
the more ef- fective for being anonymous and quotidian. If there is today a social power [potenza], it
must see its own impotence [impotenzaJ through to the end, it must decline any will to either posit or
preserve right, it must break everywhere the nexus between vio- lence and right, between the living
and language that constitutes sovereignty.
 AT: Protect Human Rights
Determining rights allows the biopolitical the have the grounds to give or take rights
at any time.
Agamben 1998 [Giorgio, Prof. of Philosophy and Aesthetics at the University of Verona] Homo Sacer:
Sovereign Power and Bare Life. Translated by Daniel Heller-Roazen. P. 127-128.] //bb

Arendt does no more than offer a few, essential hints concerning the link between the rights of [hu]man
and the nation-state, and her suggestion has therefore not been followed up. In the period after the
Second World War, both the instrumental emphasis on the rights of [hu]man and the rapid growth of
declarations and agreements on the part of international organizations have ultimately made any
authentic understanding of the historical significance of the phenomenon almost impossible. Yet it is
time to stop regarding declarations of rights as proclamations of eternal, metajuridical values binding
the legislator (in fact, without much success) to respect eternal ethical principles, and to begin to
consider them according to their real historical function in the modern nation-stare. Declarations of
rights represent the originary figure of the inscription of natural life in the juridico-political order of the
nation-state. The same bare life that in the ancien régime was politically neutral and belonged to God as creaturely life and in the classical world was (an least apparently)
clearly distinguished as zoe from political life (bios) now fully enters into the structure of the state and even becomes the

earthly foundation of the state’s legitimacy and sovereignty. A simple examination of the text of the
Declaration 1789 shows than it is precisely bare natural life—which is to say, the pure fact of birth—that
appears here as the source and bearer of rights. “[hu]Men,” the first article declares, “are born and
remain free and equal in rights” (from this perspective, the strictest formulation of all is no he found in
La Fayette’s project elaborated in July 1789: “Every [hu]man is born with inalienable and indefeasible
rights”). At the same time, however, the very natural life that, inaugurating the biopolitics of modernity,
is placed at the foundation of the order vanishes into the figure of the citizen, in whom rights are
“preserved” (according to the second article: “The goal of every political association is the preservation of the natural
and indefeasible rights of [hu]man”). And the Declaration can attribute sovereignty to the nation (accord-
ing to the third article: “The principle of all sovereignty resides essentially in the nation”) precisely
because it has already inscribed this element of birth in the very heart of the political community’ . The nation
—the term derives etymologically from nascere (to he born)—thus closes the open circle of [hu]man’s birth.
Aff — Agamben/Foucault
Generic
 2AC — Catch-All
Agamben’s analysis is reductive — 1) it conflates a spectrum of governance and
suffering 2) he over focuses on norms and law, which ignores violence beyond legal
structures 3) state regulation is beneficial
Lemke 5, German sociologist and social theorist, best known for his work on Governmentality,
Biopolitics and his readings of Michel Foucault, Goethe-Universität Frankfurt am Main (Thomas Lemke,
April 2005, “A Zone of Indistinction” – A Critique of Giorgio Agamben’s Concept of Biopolitics,” Outlines,
Critical Practice Studies, 7(1), pages 3-11)

1. Bare life and the rule of exception

Agamben’s point of departure is a conceptual distinction that according to him characterises Western political tradition since Greek antiq-uity. He states that the main line of separation is not
the difference between friend and enemy, but the distinction between bare life (zoé) and political existence (bíos), between the natural existence and the legal status of a human being. He
claims that the constitution of sovereign power requires the production of a biopolitical body. Agamben holds that the institutionalisa-tion of law is inseparably connected to the ex-posure of
“bare life”. In this light, the inclusion into a political community seems only possible by the simultaneous exclusion of some human beings who are not allowed to become full legal subjects. At
the beginning of all politics we fi nd – according to Agamben – the estab-lishment of a borderline and the inauguration of a space that is deprived of the protection of the law: “The original
political relation is the ban” (Agamben 1998: 181). Agamben denotes this secret foundation of sovereignty with a fi gure from archaic Roman law. “Homo sacer” designated an individual that
may be killed by anyone without being condemned for homicide since he or she had been banned from the juridical-political com-munity. While even a criminal could claim certain legal rights
and formal procedures, this “sacred man” was completely unprotected and reduced to mere physical existence. Since he or she was ascribed a status beyond human and divine law, homo
sacer became some kind of “living dead”. For Agamben the obscure figure of homo sacer marks the flip side of sovereign logic. As the sovereign is in a position above the law, bare life signifies
a domain beyond his competence while at the same time it provides the basis for the rule of sovereignty. Bare life, that seems to be located at the very margin of politics, turns out to be the
solid basis of a political body that decides not simply over the life and death of human beings, but who will be recognised as a human being at all. From this perspective, the production of
homines sacri is a constitutive but unrecognised part of politics. Not a subject that remains outside of law, homo sacer is constituted by political-legal means “to personalize what it excluded

Quite the contrary, Agamben

from the protection of law” (Vismann 2001, p. 15). Therefore this rightless existence should not be conceived of as a pre-societal state.

makes clear that the natural state to which homo sacer seems to be thrown back is not a residuum of
the historical past but the result of social relations. Bare life does not refer to a natural, original or
ahistorical nakedness but presents an artificial product, a concealing bareness that hides so-cial
markings and symbolisations (Agamben 1999b; Lüdemann 2001). To be clear: Agamben does not use the figure of
homo sacer for a historical recon-struction of legal procedures and institutions .4Rather, he applies it as a
theoretical concept that is supposed to inform political analysis. As a consequence, Agamben is less
interested in the question whether in antiquity human beings were indeed confronted with this kind of
ban; he is more concerned to display the political mechanism of rule and exception, bare life and
political existence. He analyses the paradoxical structure of sovereignty that operates by a suspension of law: the decision about the
exception of the rule. Here we have to note the first difference from the concept of biopolitics as Foucault uses it. According to
Agamben politics is al-ways already biopolitics, since the political is constituted by the state of
exception, in which bare life is produced. For Foucault, on the contrary, biopolitics is something much
more recent: it marks a historical shift in the economy of power that dates back to the 17 th and 18th
century. While Foucault analytically distinguishes between biopolitics and sover-eignty, Agamben insists
on their logical con-nection: he takes biopolitics to be the centre of sovereign power. In this light,
modernity is not marked by a break with the historical tradition, but it only generalises and radicalises
what was always present in the beginning of poli-tics . Nevertheless, modernity is different from pre-modern times insofar
as bare life, which was once located at the margins of political life, is now occupying more and more space inside the political domain. As for
the present, Agamben diagnoses a collapse of the rule into the exception and of politics into life. Agamben’s
reconstruction of the intimate relationship between sovereign rule and bio-political exception leads to a
disturbing result. Agamben’s thesis that the camp is the “hid-den matrix of politics” (Agamben 2001a: 48)
claims an inner link between the emergence of human rights and the establishment of concen-tration
camps. In this light there is no safe and secure borderline that separates parliamentary democracies
and totalitarian dictatorships, lib-eral states and authoritarian regimes. This is Agamben’s first provocation that we
will dis-cuss in more detail now.
2. The camp as the matrix of modernity
Agamben’s thesis that the camp is “the hidden paradigm of the political space of modernity” (1998:123) implicitly refers to Foucault’s his-tory
of the prison and his analysis of the pano-pticon in Discipline and Punish: “By paradigm I mean something very precise, some kind of
methodological approach to problems like Foucault takes for example the panopticum as a very concrete object while at the same time treating
it as a paradigm to explain the larger historical context” (Agamben 2001b: 19). Like Foucault’s genealogy of the prison that is at the same time a
history of the present, Agamben’s analysis of the camp does not refer to an ar-chive of memories but to an “event that repeats itself on a daily
basis” (Panagia 1999). In this perspective, the camp is not a historical fact or a logical anomaly but a “hidden matrix” (Ag-amben 1998: 166) of
the political domain. Like Foucault, Agamben tries to make visible the underlying structure in order to better
conceive the present political constellation. For him the camp is less a physical entity surrounded by
fences and material borderlines. Rather, it symbolizes and fixes the border between bare life and political
existence. In this view “camp” does not only refer to the concentra-tion camps of the Nazis or the contemporary urban ghettos, in principle
it denotes every single space that systematically produces bare life: “The camp is the space that is opened when the state of exception begins
to become the rule” (Agamben 1998: 168-9; emphasis in orig.). In other words, Agamben fundamentally displaces the
traditional meaning of “camp”. The camp that in the past was an expression of the difference between
friend and enemy, symbolises, in Agamben’s work, the state of exception where law and fact, rule and
excep-tion overlap.5 “The stadium in Bari into which the Italian police in 1991 provisionally herded all ille-gal Albanian immigrants
before sending them back to their country, the winter cycle-racing track in which the Vichy authorities gathered Jews before consigning them to
the Germans, [...] or the zones d’attentes in French interna-tional airports in which foreigners asking for refugee status are detained will then all
equally be camps. In all these cases, an apparently in-nocuous space [...] actually delimits a space in which the normal order is de facto
suspended and in which whether or not atrocities are com-mitted depends not on law but on the civility and ethical sense of the police who
temporarily act as sovereign” (Agamben 1998: 174).According to Agamben, modern biopolitics is “double-sided: the
spaces, the liberties, and the rights won by individuals in their conflicts with central powers always
simultaneously prepared a tacit but increasing inscription of individuals’ lives within the state order,
thus offering a new and more dreadful founda-tion for the very sovereign power from which they
wanted to liberate themselves” (Agamben 1998: 121). It is the same reference to “bare life” that in liberal
democracies results in the pre-eminence of the private over the public sphere, while in totalitarian
states it becomes a decisive political criterion of the suspension of individual rights. But even if both
forms of government rely on the same political sub-stance – bare life – it does not necessarily mean that
they are equal in normative terms. Most commentators fail to see [realize] that Agamben neither
diminishes the differences between democ-racies and dictatorships nor devalues liberal rights of
freedom and participation. Rather, he wants to show that the democratic rule of law is by no means an
alternative project to the Nazi regime or the Stalinist dictatorship, since the latter radicalise biopolitical
tendencies that ac-cording to Agamben could be found in various political contexts and historical
epochs. Thus, Agamben does not mean to reduce or negate these profound differences, but instead he
tries to elucidate the common ground for these very different forms of government: the production of
bare life. While other philosophers and his-torians may insist that the camps of the Nazis are a logical exception or a historical epiphe-
nomenon, Agamben searches for the rule, or the normality, of this exception and asks in what sense “bare
life” is an essential part of our contemporary political rationality . Here we are confronted with a second prov-ocation.
While for Agamben all politics is always already biopolitics, he claims that mo-dernity is the biopolitical
age par excellence, since it is only in modernity that exception and rule become ultimately indistinguishable. After the end of Nazism and
Stalinism a new era of biopolitics comes into being. There is no simple historic continuity between totali-tarian
regimes and democratic states; instead Agamben notes an increasing aggravation of biopolitics.
According to him, “biopolitics has passed beyond a new threshold ” [...]: “in mod-ern democracies it is
possible to state in public what the Nazi biopoliticians did not dare to say ” (Agamben 1998: 165).While the Nazi
biopolitics concentrated on identifiable individuals or specific subpopula-tions, “in our age all citizens can be said, in a specific but extremely
real sense, to appear vir-tually as homines sacri” (Agamben 1998: 111). Clearly, Agamben
assumes that the borderline that
once separated individuals or social groups is now to be found inside the individual body. The line of
separation between political exist-ence and bare life “moved inside every human life and every citizen.
Bare life is no longer confined to a particular place or a defi nite cat-egory. It now dwells in the biological
body of every living being” (Agamben 1998: 140).Unfortunately, Agamben leaves this aggra-vation of the
biopolitical problem extremely vague. His thesis that rule and exception are marked by indeterminacy is
coupled with a lack of conceptual differentiation. To be more concrete: Even if all subjects are homines sacri,
they are so in very different ways. Agamben limits his argument by stating that everyone is susceptible
to being reduced to the status of “bare life” – without clarifying the mechanism of differentiation that
distinguishes between different values of life. It remains woefully unclear to what extent and in what
manner the comatose in the hospitals share the fate of prisoners in concentration camps; whether the
asylum seekers in the prisons are bare life to the same degree and in the same sense as the Jews in the
Nazi camps. Agamben privileges exaggerated dramatisation over sober evalu-ation, since he even
regards people killed on motorways indirectly as homines sacri (Ag-amben 1998: 114; Khurana 2002). As I try to show
in the following section, lacking the ca-pacity to differentiate is not an accidental fault of the argument , but
the necessary outcome of an analysis that systematically ignores central aspects of contemporary
biopolitics.

3. Zone of indistinction or biopolitical continuum?

For Agamben the decision about life and death “no longer appears today as a stable border dividing two clearly distinct zones” (1998: 122). This
sentence allows for two completely different readings. If the accent is placed on the first part of the phrase that stresses the dis-solution of a
clear demarcation line, the border is conceived as a flexible zone or a mobile line. Or – this is the second interpretation – if the accent is put on
the last part of the phrase, the phrase seems to indicate that there is no longer a borderline at all, that both domains have become
indistinguishable. This is prob-ably the direction that Agamben takes when he speaks of a “zone of indistinction”, the tendency towards identity
of life and politics (1998: 122 resp. 148). But this leads into a blind alley. Agamben
does not comprehend “camp” as an
internally differentiated continuum, but only as a “line” (1998: 122) that separates more or less clearly
between bare life and political existence. As a consequence, he cannot analyse how inside “bare life”
hierarchisations and evaluations become possible, how life can be classified and qualified as higher or
lower, as descending or ascending. Agamben cannot account for these processes since his attention is
fixed on the es-tablishment of a border – a border that he does not comprehend as a staggered zone but
as a line without extension that reduces the ques-tion to an either-or. In other words: Agamben is less
interested in life than in its “bareness”, whereby his account does not focus on the normalisation of
life, but on death as the ma-terialisation of a borderline. For Agamben bio-politics is essentially
“thanatopolitics” (1998: 122; Fitzpatrick 2001: 263-265; Werber 2002: 419). In fact the “camp” is by no means a homog-enous zone
where differences collapse but a site where differences are produced. Here again the contrast between Agamben and Foucault is instructive.
For Foucault biopolitics is not a sovereign decision over life and death. Thehistorical and political novelty of biopolitics lies
in the fact that it focuses on the produc-tive value of individuals and populations; the ancient sovereign
power that was centred on death is reorganised around the imperative of life . In this perspective Foucault analyses
modern racism as a vital technology since it guarantees the function of death in an economy of bio-power. Racism allows for a
fragmenta-tion of the social that facilitates a hierarchical differentiation between good and bad races.
The killing of others is motivated by the vi-sion of an improvement or purification of the higher race
(Foucault 1997: 213-235). From this point, the second difference between Ag-amben and Foucault emerges. Agamben
claims that from antiquity on there was a structural link between sovereignty and biopolitics, lead-ing to an
always renewed and ever more radi-calised separation between bare life and legal existence. Foucault ,
on the other hand, makes an analytical distinction between biopolitics and sovereignty , even though he notes their
“deep historical link” (Foucault 1991: 102). Only the Foucauldian analytical frame allows the material limits and the
historical specifity of sovereignty to become visible by presenting it less as the origin than as an effect of
power relations. Foucault shows that sovereign power is by no means sovereign, since its legitimacy and
efficiency depends on a “microphysics of power”, whereas in Agamben’s work sov-ereignty produces
and dominates bare life. For Agamben “the production of a biopoliti-cal body is the original activity of
sovereign power” (1998: 6; emphasis in orig.). The bi-nary confrontation of bíos and zoé, political ex-istence and
bare life, rule and exception points exactly to the very juridical model of power that Foucault has
criticized so convincingly. Agamben pursues a concept of power that is grounded in categories of
repression, reproduc-tion and reduction, without taking into account the relational, decentralised and
productive aspect of power. In that it remains inside the horizon of law, Agamben’s analysis is more
indebted to Carl Schmitt (1932) than to Michel Foucault. For Schmitt, the sovereign is visible in the
decision about the state of exception, in the suspension of the law, while for Foucault the normal state
that operates beneath, along-side, or against juridical mechanisms is more important. While the
former concentrates on how the norm is suspended, the latter focuses on the production of normality .
Schmitt takes as the point of departure the very sovereignty, that signifies, for Foucault, the endpoint
and result of complex social processes, which con-centrate the forces inside the social body in such a
way as to produce the impression that there is an autonomous centre, or a sovereign source of power .6

4. Political economy of life

Agamben sees the novelty of the modern bio-politics in the fact that “the biological given is as such immediately political, and the political is as
such immediately the biological given” (1998: 148; emphasis in orig.). In the political program of the Nazis, the preoccupation with life is at the
same time a struggle against the enemy. While there are probably convincing reasons to state that in the present we are one step further on
the way towards a politicisation of nature, there are at least two major problems that this conception of biopolitics fails to ad-dress. Firstly,
Agamben does not take into account that the site of sovereignty has been displaced. While in the eugenic programs in the first half of the 20th
century biopolitical in-terventions were mainly executed by the state that controlled the health of the population or the hygiene of the race,
biopolitics today is becoming more and more a responsibility of sovereign subjects. As autonomous patients, active consumers or responsible
parents they demand medical or biotechnological options. Today, it is less the state that regulates by direct
interventions and restrictions, since the capacity and competence of decision-making is increasingly
ascribed to the individual subject to make “informed choices” beyond political authoritarianism and
medical paternalism. De-cisions on life and death are less the explicit result of legal provisions and political
regula-tions but the outcome of an “invisible hand” that represents the options and practices of
sovereign individuals (Lemke 2002b; Koch 2002). Agamben’s analysis is too state-cen-tred, or rather, it relies on
a limited conception of the state which does not take into account important political transformations
since the Nazi era. He does not take into account that in contemporary liberal societies political power
is exercised through a multiplicity of agencies and techniques that are often only loosely as-sociated
with the formal organs of the state. The self-regulating capacities of subjects as autonomous actors
have become key resources for present forms of government that rely in crucial respects on forms of
scientific expertise and knowledge (Rose/Miller 1992). Agamben’s concept of biopolitics is marked by a
second weakness that also demonstrates his excessively legalistic approach. Biopoliti-cal mechanisms
confront not only those who have been deprived of elementary rights and reduced to the status of living
beings. The analysis of biopolitics cannot be limited to those without legal rights, such as the refugee or
the asylum seeker, but must encompass all those who are confronted with social processes of
exclusion – even if they may be formally enjoying full political rights: the “useless”, the “unnecessary”,
or the “redundant”. While in the past these ominous figures inhabited only peripheral spaces in the so-called third and fourth world,
today in a global economy these forms of exclusion can also be found in the industrialised centres. As a result of the crisis of the
welfare state and Fordist modes of social integration , more and different segments of the populations are
effectively excluded not only from labour and the working process but from education, housing and
social life (Castel 2000; Imbusch 2001). By concentrating on questions of law and the figure of the sovereign ban,
Agamben ig-nores central aspects of contemporary bio-politics. He takes for granted that the state of
exception is not only the point of departure for politics, but its essence and destination. In this light, politics
is reduced to the production of homines sacri – a production that in a sense has to be called non-
productive since bare life is only produced to be suppressed and killed. But biopolitical interventions
cannot be lim-ited to registering the opposition of bare life and political existence. Bare life is no longer
simply subject to death; it falls prey to a bio-economical imperative that aims at the increase of life’s
value and the optimalisation of its quality. Contemporary biopolitics is essen-tially political economy of
life that is neither reducible to state agencies nor to the form of law. Agamben’s concept of biopolitics
remains inside the ban of sovereignty, it is [unaware] blind to all the mechanisms operating beneath or
beyond the law (see also Bröckling 2003).7
[footnote 7 beings]

7 Agamben also completely ignores to address the que-stion whether the biopolitical production of „bare
life” is also a patriarchal project. Indeed, the strict border line between natural life and political existence
very much resembles the heterosexual order and a gendered division of labor that reduces women to
“bare life” (for a feminist critique of Agamben’s account: Deuber-Man-kowski 2002)
[footnote 7 ends]

Conclusion: biopower and thanotopolitics

Our reading of Agamben leads to a surprising result. Following a binary code and a logic of subsumption
that does not allow for differ-entiations, his argument remains committed to exactly the juridical
perspective that he so vividly criticizes. He reduces the “ambiguous terrain” (1998: 143) of biopolitics by
operat-ing with a notion of politics that is at once too broad in its explanatory scope and too narrow in
empirical complexity. On the one hand Agamben conceptualises the political as a sovereign instance
that does not allow for an outside that would be more than an “inner outside” and an “exception”. On
the other hand his presentation of sovereignty is completely limited to the decision on the state of
exeption and the killing of bare life. As a consequence, Agamben presents a distorted picture. The main
danger today may not be that the body or its organs are targets of a distinctive state politics (1998: 164-5),
but – quite the contrary – that we are witness-ing an important transformation of the state under the
sign of deregulation, privatisation and liberalisation. It is more and more the sci-entific consultants,
economic interest groups, and civil societal mediators that define the beginning, the end, and the value
of life, in consensus conferences, expert commissions, and ethical counsels. This “withdrawal of the
state” could itself be analysed as a political strategy, though one that does not necessar-ily refuse
individuals legal rights. In a more moderate account of exceptionality the suspen-sion of legal rights
might remain important in determining who is allowed to become part of a community , who is eligible
to legal rights at all. The political strategy, however, that shifts legal and regulatory competencies from the
public and legal domain to the private sphere, will probably pose a much greater threat in the future. This
tendency is already [noticeable] visible; for ex-ample, it is possible for private companies to own and
exploit human body substances (see Andrews/Nelkin 2001). Moreover, this ten-dency can already be traced in
examples that Agamben mentions, namely the admissibility of euthanasia and transplantation
medicine. Here we can expect that a patient’s legal will and contract relations will take the place of explicit
state prohibitions and regulation. We note that in some countries there is already a public discussion to
provide financial com-pensations for individuals who donate organs, and there is a growing consensus in
the legal community to accept the will of the patient not to prolong life under certain conditions .8 By the
analytical focus on a formal and repressive conception of the state and the theoretical fixation on the
sovereign border between life and death, Agamben fails to [realize] see the limits of his own
argumentation. Not every single form of exclusion needs to be grounded in legal regulations, or
necessitate a suspension of law. Sovereignty does not only reside in political instances and state
agencies, it also dwells in “life politics” (Giddens 1991: 209-31) of sovereign subjects who are expected to act in
a autonomous ways as individuals. We are not only subjected to political mecha-nisms that regulate and
restrict our physical life; we are also inscribed in what Foucault called “arts of government” that direct
how to reflect ourselves as moral persons and parts of collective subjectivities (see Foucault 2004a). In fact,
Foucault regarded biopolitics as an essential part of the liberal art of government (see Foucault 2004b, pp. 3-28).
 2AC — Catch-All [Short]
Agamben’s wrong — exclusion exists outside laws, while regulation is necessary
Lemke 5, German sociologist and social theorist, best known for his work on Governmentality,
Biopolitics and his readings of Michel Foucault, Goethe-Universität Frankfurt am Main (Thomas Lemke,
April 2005, “A Zone of Indistinction” – A Critique of Giorgio Agamben’s Concept of Biopolitics,” Outlines,
Critical Practice Studies, 7(1), pages 3-11)

Conclusion: biopower and thanotopolitics

Our reading of Agamben leads to a surprising result. Following a binary code and a logic of subsumption
that does not allow for differ-entiations, his argument remains committed to exactly the juridical
perspective that he so vividly criticizes. He reduces the “ambiguous terrain” (1998: 143) of biopolitics by
operat-ing with a notion of politics that is at once too broad in its explanatory scope and too narrow in
empirical complexity. On the one hand Agamben conceptualises the political as a sovereign instance
that does not allow for an outside that would be more than an “inner outside” and an “exception”. On
the other hand his presentation of sovereignty is completely limited to the decision on the state of
exeption and the killing of bare life. As a consequence, Agamben presents a distorted picture. The main
danger today may not be that the body or its organs are targets of a distinctive state politics (1998: 164-5),
but – quite the contrary – that we are witness-ing an important transformation of the state under the
sign of deregulation, privatisation and liberalisation. It is more and more the sci-entific consultants,
economic interest groups, and civil societal mediators that define the beginning, the end, and the value
of life, in consensus conferences, expert commissions, and ethical counsels. This “withdrawal of the
state” could itself be analysed as a political strategy, though one that does not necessar-ily refuse
individuals legal rights. In a more moderate account of exceptionality the suspen-sion of legal rights
might remain important in determining who is allowed to become part of a community , who is eligible
to legal rights at all. The political strategy, however, that shifts legal and regulatory competencies from the
public and legal domain to the private sphere, will probably pose a much greater threat in the future. This
tendency is already [noticeable] visible; for ex-ample, it is possible for private companies to own and
exploit human body substances (see Andrews/Nelkin 2001). Moreover, this ten-dency can already be traced in
examples that Agamben mentions, namely the admissibility of euthanasia and transplantation
medicine. Here we can expect that a patient’s legal will and contract relations will take the place of explicit
state prohibitions and regulation. We note that in some countries there is already a public discussion to
provide financial com-pensations for individuals who donate organs, and there is a growing consensus in
the legal community to accept the will of the patient not to prolong life under certain conditions .8 By the
analytical focus on a formal and repressive conception of the state and the theoretical fixation on the
sovereign border between life and death, Agamben fails to [realize] see the limits of his own
argumentation. Not every single form of exclusion needs to be grounded in legal regulations, or
necessitate a suspension of law. Sovereignty does not only reside in political instances and state
agencies, it also dwells in “life politics” (Giddens 1991: 209-31) of sovereign subjects who are expected to act in
a autonomous ways as individuals. We are not only subjected to political mecha-nisms that regulate and
restrict our physical life; we are also inscribed in what Foucault called “arts of government” that direct
how to reflect ourselves as moral persons and parts of collective subjectivities (see Foucault 2004a). In fact,
Foucault regarded biopolitics as an essential part of the liberal art of government (see Foucault 2004b, pp. 3-28).
 2AC — Author Indict
Agamben’s failure to analyze historical oppression wrecks their theory’s explanatory
power and proves the alt fails — independently, the neg links to their framework
— edited for potentially problematic language that we do not endorse
Colatrella 11, University of Maryland University College, Europe (Colatrella Steven, May 2011,
"Nothing Exceptional: Against Agamben," Journal for Critical Education Policy Studies, Vol.9. No.1,
http://www.jceps.com/wp-content/uploads/PDFs/09-1-05.pdf)
Giorgio Agamben is an Italian political philosopher whose work has become influential for theoretically and empirically explaining the threats to civil liberties since 9/11 as being rooted in
deeper structures of the modern state, legal system and systems of constitutional and social exclusion. In two key works, State of Exception and Homo Sacer1 , Agamben has with considerable
courage, and theoretical rigor analyzed the relationship between the vulnerability of select groups in society, the sovereign powers of state rulers, and the ultimate lack of real protection for
any of us from the sovereign’s power to declare a state of emergency (or state of exception) and to turn us into the socially and legally excluded. Agamben deserves credit for having
demonstrated that far from an anomaly, the powers and repressions of the USA Patriot Act, Guantanamo, increased state secrecy and extraconstitutional executive powers that emerged after
the declaration of the War on Terror have historical antecedents in every liberal democratic country. Even more importantly, he shows that these are rooted in the very concept of sovereignty
itself that is at the center of state authority in the modern world. Further, in demonstrating that the repressed and marginalized – the paradigmatic figure being the Jews and other victims of
the Nazi Holocaust – are not in a legal or constitutional position that is qualitatively different from that of any other member of modern society or citizen of the modern state, Agamben has
presented all of us with a challenge on how best to defend our own security and even survival under conditions of an ever more aggressive modern state power that is not limited by any legal
or constitutional force. As a logical deconstruction of the power of the state in relation to citizens, as a coherent explanation, with empirical evidence drawn from the histories of every
Western nation state over the past century or so, Agamben’s work has already become classic. Conferences are dedicated to its insights and works by others seek to extend his theories to both
new acts of aggrandizement by state powers and new members of society – Roma, or immigrants – who might fit his description of what Hegel might have called the concrete universal of the

human condition. This essay intends to show, however, that Agamben’s

approach to understanding both state power and
the condition of the disenfranchised – both extreme poles of political life as understood in the titles of the
two books noted above – is deeply flawed and even dangerous and counter-productive for those
seeking any effective defense against, and counter to the policies and practices that Agamben is
warning us about. After a brief discussion of Agamben’s theories of state of exception and of homo sacer – of the sovereign power and
of the legally dispossessed that it represses – I will show that the use of traditional categories of Marxism and historical materialism will better
enable us to understand the modern state, and its relationship to the political and legal dispossession and even physical destruction of human
beings under its authority (or at least its power). Further, I will attempt to show that only by analyzing modern history through the key
categories of enclosure and expropriation, and understanding the rise of democracy through class struggle and the response to expropriation
and exploitation, can we approach the reasons for the current waves of political repression of civil liberties. By doing so, I hope to show that by
following a now decades-long approach of assuming the autonomy of the political and by basing his work on influences that stem from various
traditions of seeing politics as autonomous, ranging from the liberal Hannah Arendt to the Nazi Carl Schmitt to the postmodernist Michel
Foucault, Agamben fails to explain why the very phenomena he is addressing are occurring in the first place.

Homo Sacer and State of Exception

“The Sovereign” wrote Nazi lawyer and political theorist Carl Schmitt, “is he who decides on a state of exception2 ”. The state of exception, or state of emergency, is that moment in which all constitutional and legal limits can be superseded or done away with, annulled or set aside,
ultimately at the whim or dictate of the sovereign. The latter’s power in any case was never really limited by these legal restraints, even if this sovereign for their own reasons abided by such formal limits for a time. In this case Schmitt’s sovereign is Hobbes’ Leviathan on steroids, though
the line of ancestry is clear, since once sovereignty is given over by people in a state of Hobbesian nature (where a war of all against all predominates and life is nasty, brutish and short) Hobbes’ Leviathan state power likewise has no limits or legal restraints other than those that it sees fit
to impose. Further, the state of exception is the basis of all law in the first place, in that it is only under conditions of a state of exception that law itself can be created and constitutions imposed. In other words, law is not a product of law, for either Schmitt or for Hobbes, but of a state
where there is not law. The difference is important however. For Hobbes it is the lawless state – presumably a one-time affair at least ontologically if not historically – that leads to the creation of law which is the product of the sovereign. For Schmitt, that power is always in a position to
set aside all law and create new law. But creating new law is by definition an exceptional moment, one that is an exercise of power and that steps over the bounds of all previously existing (and by implication illusory) legal limits. What is remarkable is how influential this approach to
sovereignty has been on the political left for some time now. Already in the 1980s Telos magazine devoted an entire issue to Carl Schmitt. Work by postmodern Marxist Toni Negri has used Schmitt’s concept of “constituent power3 ” – of that political moment when a force exists able to
constitute a new constitutional/social order outside of all previous legal or constitutional structures, the moment in which new structures or institutions or arrangements can be created – as a strategic device to hold open the revolutionary possibilities of transforming society to do away
with capitalism. Where Negri is optimistic, largely through philosophical speculation, while as always thin on empirical evidence, Agamben is pessimistic. For him, the state of exception is now not so exceptional. Rather its very imminence, its very existence as a possibility always under
the modern state has now led to it becoming the predominant political form in liberal democratic countries as well as authoritarian ones. Agamben traces the roots of states of exception in the historical declarations of states of emergency in every western nation with painstaking and
extremely valuable detail, with the intention of showing that these historical antecedents have developed into a monstrous reality that is now poised to be the everyday reality and the political common sense of the relation of human beings to the governments they live under4 . It gets
worse. For with the aggrandizement of state sovereign power imposing a permanent state of exception, despite the etymological paradox of such a condition, comes the reduction of members of society from citizenship, from legally protected social belonging endowed with human rights
or civil rights, to humans stripped of all legal protection, all rights, and dispossessed of societal membership. Thus comes their reduction, leaning on a concept from Hannah Arendt, to “bare life”, to mere physical existence whose precariousness is vulnerable to the whim of either state
power or even the hostility of their neighbors who may decide that their very existence could prove to be inconvenient or undesirable. Given the lack of any restraint on state power’s ability to impose a state of exception, various parts of the population now, and in principle potentially all
of us, are in danger of being reduced to this condition of bare life, which Agamben calls Homo Sacer. Homo Sacer was a juridical figure in Ancient Rome, someone who could not be sacrificed in religious ceremonies, but who could be killed by anyone with impunity5 . Someone, in other
words, totally stripped of any legal status, cultural or social value, or societal membership that had to be recognized by others. It is Agamben’s accomplishment, in juxtaposing these concepts, the sovereign state of exception, and the bare life of Homo Sacer, to show the relationship
between the top and bottom of the Schmittian political hierarchy. His purpose is to warn us, to demonstrate that under conditions of the modern state none of us is safe. To do so, he recycles the concept of bare life from Hannah Arendt, who in the Origins of Totalitarianism used the
phrase “the abstract nakedness of being human6 ” to refer to the condition of the refugees flooding every country in Central Europe after the Second World War. For Arendt, the challenge posed by this human mass of dispossessed was that their lack of any means to demand anything
indicated a lack of “the right to have rights”. Refugees by definition have to depend on the kindness of strangers as it were. Even the conventions existing today for Refugees, through the UN High Commission on Refugees have an Achilles Heel, namely that unless there is a state willing to
guarantee the needs and rights of the person involved, that person essentially has no rights or guarantees. For Arendt, this gives the lie to one of the conceits that lay at the basis of the modern world and of modern liberalism, the concept of universal human rights. The Rights of Man
have no meaning unless one “has” a nation state that one is a recognized citizen of, and that is willing to guarantee these rights through some constitutional relationship of citizen to state. Otherwise the rest is essentially good will, charity and whim on the part of caregivers for helpless
and rightless refugees. We might say that Hannah Arendt's formulation demonstrates the flaw in the nineteenth century view that civil rights were to Universal (Inalienable) Human Rights what local currencies were to the gold standard, e.g. merely the local name for a universal currency.
For Agamben, this reality is taken further – into that very relationship of the citizen to the nation state itself. It is not only refugees who are at risk, people politically dispossessed, without a country – the Italian word is apolide, lacking membership in a political community or polis, as in
the case of Palestinians - rather it is all of us. At any moment the state that we think of ourselves as members of, citizens of, could turn aggressive, declare a state of exception and suspend, annul or throw out all together any or all of our rights and liberties. We are all vulnerable. Certainly
some groups find themselves in this condition sooner than, or more fully than the rest of us. But they are the canaries in the coal mine as it were, inasmuch as it is only a matter of fiat or of time before “they come for us”. The concentration camp inmate, the Jew in Nazi Germany,
becomes the paradigmatic figure for the modern person, who under the Arendtian conditions whereby human rights don’t exist if a state is not willing to guarantee them, is reduced at least potentially at all times to homo sacer – to bare life as Arendt puts it, to someone stripped of all
legal, citizenship, even cultural belonging, a juridically deracinated human awaiting their fate at the hands of those who can, with impunity, do as they will. Hyperbole can be a useful tool to make a point. But the problem with this approach is not just that it goes over the edge of
hyperbole into out and out exaggeration in describing the relationship of the modern citizen to the modern state. After all, there are real Agambenian, and Arendtian personages in the real world, be they death row inmates, Guantanamo prisoners or the Roma in any number of European
countries, to name a few. Certainly Agamben deserves credit not only, but especially for drawing our attention to these persons suffering terrible fates even at the hands of supposedly democratic and liberal-constitutional governments, and for providing theoretical insight into their
suffering and the dangers their fates, and our indifference to them pose to the rest of us that “they” have not yet come for. Agamben therefore seeks to explain the present danger to civil liberties, the risk of special powers being taken over by governments declaring states of emergency,

Despite its insight, however, I

the increasingly common turn to “delegated democracy” through authoritarian methods by only formally elected leaders and the risk of physical repression by state power even in liberal democratic countries.

think that this way of understanding is disastrously mistaken. For the test of theories of this sort should
be simple and twofold: 1) does the theory tell us why this is happening when it does and where it
does? 2) And does it tell us what to do about it? I think Agamben’s analysis fails utterly on both counts
and therein lies the danger in its growing influence as a way of understanding the undoubted rise in
political repression and authoritarianism around the world. Part of the appeal of a theory like
Agamben’s to radical intellectuals is its sophistication. That Agemben is erudite is undoubted, as his
extensive knowledge of arcane facts of Roman legal history indicate . But while he has added dimensions that no less
talented thinker, certainly myself included, could have come up with, originality, despite its undoubted academic virtues, is not a reason for a
theory or explanation to be convincing to others. Rather an explanation of historical or political phenomena must address the first question I
pose: why? Why now and not later or before? Why in this place and not the other? Why the differences in degree between places or times?
Why is this group under attack and not another one? 7 Missing in Agamben’s work – and by extension given his influences, in Arendt,
Schmitt, Foucault and Nietzsche and their varying approaches to the autonomy of the political – is any understanding of the
relationship between politics and economics, or of class forces in historical outcomes, and any link
between civil liberties and guarantees to and control over livelihood. This failure leads to the great
weakness of any analysis based on the autonomy of politics – its total inability to explain why
something is happening rather than to show us that it is. The failure , in other words, to explain the timing of
political and social changes, and therefore to explain them in any way that is useful. Why are some
people being reduced to homo sacer now? And why those particular people? Why is there a state of
exception being declared in this country but not that one, and why now and not later, or why once but
not now, or why potentially but not in reality? Why is a discourse of biopolitics, or of changing methods
of social discipline and control emerging in a given century instead of in another? If it is the result of modernity or the Enlightenment, how do we
explain these in turn? I believe that asking such questions in what has presented itself over the past few decades as a rich era of theoretical innovation, leads us to see that there has instead been an impoverishment of historical and theoretical imagination and explanatory power.
Further, I believe that it can be shown that the idea of the autonomy of politics is at the heart of this impoverishment, stemming from reliance on Nietzsche, Arendt, and worst of all Schmitt as theoretical influences. If democracy and liberation lack appropriate theoreticians and theories it
is our job to produce these, not to go looking for the possibility of an intellectual detournement of the categories of misanthropic, Nazi or even in the more benign case of Arendt liberal elitist approaches to understanding the modern world. One’s boredom with the relative superficiality
or lack of sophistication of say, Rousseau, Condorcet, or even Jefferson, and one’s desperation to escape the straight-jacket of an orthodox Marxism or the stifling dialectic of Hegel does not excuse the damage done when we come to disastrous conclusions through mistaken analysis of
the most vital political processes. Instead, we have a responsibility to provide the best explanation we can for why something is happening, in the interests not only of better understanding it, always valuable for its own sake, but also to answer that second question I pose – the one that
goes beyond the merely academic or intellectual – what can we do about it? This question, which moves us from theory to practical action in the world, shows us the further value of the first question and the importance of answering it well. It is true that a bad explanation could still
result by luck or through our good political experience or common sense individually or collectively in an adequate response in action. But a good explanation is at worst going to do us no harm in enhancing our own understanding of what we are faced with and we ourselves are doing in
response, but may in fact help us in formulating strategy together so that we can maximize our effect and even turn the situation to our advantage. I have taken the time and space here to go through what should be obvious to any political activist and certainly to anyone remotely
familiar with Marxist traditions of politics and theory because I think that a theory like Agamben’s and for that matter like much of the recent work of Toni Negri and Michael Hardt, or some influential ideas of even a more widely admired thinker like Foucault, seem again to me to have
failed significantly in explanatory power despite their often great insight into the events and processes they fail to adequately explain; they seem to lack completely any strategic sense of how their theories are supposed to illuminate or guide our actions politically8 . To provide an answer
to the first question I pose, and therefore to present a better explanation for the increasing political repression of our times, I will rely on the classic Marxist categories of enclosure and expropriation, or primitive accumulation. To address - I won’t pretend I can answer it here - but at least
to address the second question, I rely on the concept of class struggle and on a historical overview of the state and of democratization. I think that understanding the accomplishments and the limitations of democratization up to now, and the basis of democratization in class struggle by
workers, is the surest basis for seeing where to begin in best understanding and addressing the root causes, the material bases of the political repression of civil liberties that threatens us and in rolling it back.

Primitive accumulation, enclosure and expropriation

Three omissions will serve to help us [realize] see the limits of Agamben’s [analysis] vision, and why these
limitations weaken the very explanatory power of his analysis of even what he so insightfully
describes. First, in neither Homo Sacer nor in State of Exception is there any mention of Native Americans.
This may seem either tangential or unfair as a complaint. After all, Agamben is interested in today’s
political repression and is European. There would seem to be no particular reason for him to privilege, or
even to be interested in the history of Native America. And perhaps it is only my own background as an American that leads me to
consider this relevant. But I think that neither Agamben’s Italian nationality, nor my US nationality are important here. Homo Sacer is
purported to be a concept that enables us to grasp how and why some members of society, and by
implication any of us, can be stripped of any legal protection or community membership, and killed or
subjected to any lesser punishment including torture, with impunity. The Native American experience is ,
arguably, the paradigmatic case of entire populations being dispossessed, killed with impunity, provided
no protection legal or otherwise, or, as in the case of the Cherokee and other southern nations, having
the formal legal recognition by both the local states and the US Supreme Court, superseded by
executive power (by President Andrew Jackson to be precise). Granted, no book can cover every relevant case and
Agamben’s books discussed here are both short, if dense. But he does, in State of Exception go over a very
thorough history of states of emergency and the use of exceptional powers by governments all over the
world9 . Tracing the roots of both states of exception and of the construction of homo sacer figures in
liberal democratic countries is a part of the exercise that Agamben is engaged in . Thus failing to even
refer to Native Americans is significant, both with reference to the historical period when “The only good
Indian is a dead Indian” was a practical guide to genocide that more closely approximates homo sacer
historically than anything I can imagine – and to the present day when many Native Americans would argue with reason that little has
changed. Thesecond omission, more difficult to explain by Agamben’s geographical origins, is any
reference at all to the history of colonialism, or to conditions in the ex-colonial world of the Global
South. Arendt, despite numerous failings of analysis and history some of which I discuss below, nevertheless to her credit makes the
relationship between imperialism and racism in the colonies and “totalitarianism” in Europe a central part of her analysis in the Origins of
Totalitarianism10. Yet there is no discussion of this relationship in Agamben . In this sense, Agamben represents an
analytical step backwards from Arendt, not a further development of her insights. The rest of the world has dropped
off the mental map. This is not just a question of priorities , of the brevity of books that can’t cover everything, nor even
of Eurocentrism though it certainly is in part that. It is rather a serious failure of analysis and historical imagination
that, as we will see below, makes Agamben’s theoretical discussion less useful and reduces dramatically its
explanatory power. For many decades, in country after country, continent after continent, European
and other colonial powers could act with impunity and without regard to the life of, let alone legally
recognized rights of the colonized people. The Belgian Congo, and the horrors of slavery; the repeated
experience of mass famine in India (done away with since Independence and the establishment of democratic government); the
labeling of resistance against expropriation and foreign rule Mau Mau to define it as an atavistic
throwback to savagery to enable the British rulers to destroy it militarily; over a million dead in the Algerian
struggle for Independence against the French; the near-genocide in Libya by the Italians, the list could go
on for pages. None of it relevant, presumably, either to states of exception, in which sovereigns are
unconstrained by any legal or customary limit in their actions, nor in understanding the reduction of
person from members of communities with either customary or legal rights to bare life, dependent on
the self-restraint at whim of others for their survival. Nor does the history of neocolonialism, with its two
million dead in Vietnam; its horrifying wars by death squad in El Salvador and Nicaragua, and
Guatemala, its horrors in Angola and Mozambique, or apartheid in South Africa, warrant even a
mention from presumably the most up to date, innovative thinker of the denial of rights and life by
state power writing today. Not to mention Structural Adjustment Programs, the IMF, World Bank or
WTO and the policies that continue, after decades, to condemn millions to mere survival and worse, and which have regularly
resulted in resistance, repression, and states of emergency by military and civilian powers. Yet, in failing to see the ex-colonial
world, Agamben has also missed the part of their population that ended up in the West . I refer of course to the
enslaved. In discussing homo sacer as a legal figure with no rights, no standing, no community
membership that others were obliged to respect, do we not immediately recall Dred Scott? Is there
nothing that the experience of the American slave can teach us about homo sacer? If slavery can tell us
something about homo sacer, is it possible that anti-slavery, the struggle for abolition can tell us
something about states of exception and how to fight them? Could the movement against the Fugitive
Slave Act in the 1850s United States, for instance, be of some help in thinking about our problems today? Finally,
Agamben, in his understanding of homo sacer seems to miss the most obvious point imaginable, at
least to anyone familiar with the work of either Karl Marx or Karl Polanyi11 , namely, that a human being
reduced to bare life, to the mere physical existence without rights or guarantees, far from being a
marginal figure, a canary in a coal mine, is instead the human condition of the majority of the
population under capitalism. Here is where it is clear why I have stressed the autonomy of the political as a way of understanding
the world that is counter-productive: it takes work to describe humanity reduced to bare life and then fail to see it
all around one in the form of the proletarian majority of every society, North and South. Political
deracination is clearly related to economic deracination, or to use the, in my view clearer Marxian
terminology, expropriation and enclosure, or proletarianization. In what way is Agamben’s homo sacer
any different than the “rightless and free” proletarian that has always existed under capitalism?
Hasn’t it always been allowable to “live and let die” without remorse those unable to make a living, keep
a job or income, provide for themselves or family members, keep up rent or mortgage payments, pay for
a meal? Shouldn’t we see this as violence, as Zizek in his book Violence12 argues, the daily, systemic “economic” violence of
market relations and the propertylessness of the majority in capitalist society? Isn’t this exactly the non-state of emergency,
non-exceptional violence, that kills millions annually, that Agamben, like Arendt before him, ignores? Further,
doesn’t his lack of attention to the “normal” process of proletarianization, of expropriation and
enclosure, lead to his failure to see these on a grand scale with the maximum possible state violence
in the colonial world, in the neocolonial world, in slavery and the slave trade, in the genocide of the
Native Americans? Yet, failing to see these, isn’t it likely that even his understanding of the processes and
histories he knows well and does examine in detail , Europe and the US, and the Jewish Holocaust and
Nazi regime, are flawed as well? Despite her limitations, wasn’t Arendt closer to the truth with her view that the genocide of Jews
and Roma in Nazi Europe, or even the slaughter of the peasantry under forced collectivization and the genocide in the Ukraine under Stalin,
that is, the results of the process she identifies, rightly or wrongly, as totalitarianism, had their roots in the colonialist, imperialist and racist
experiences? (Although Arendt’s analysis was likewise crippled by her insistence on the autonomy of the political, and by her semi-apologetic
discussion of imperialist racism). In
ignoring even the process of expropriation and enclosure, or
proletarianization, in Europe itself, Agamben fails again to note crucial historical moments of political
repression – of both states of exception and homo sacer. The most important of these moments in the
expropriation of the peasantry of Europe was the witch trials of the 16th and 17th centuries , as Silvia Federici
has shown in her book Caliban and the Witch. Federici indeed shows the limitations of Foucault’s own analysis of the
growth of control of the body by state and medical authorities, of biopolitics 13. Foucault ignores the
torturing to death of hundreds of thousands of women across Europe over several centuries, and the
role these horrors played in the construction of gender inequalities under capitalism and in dividing the
medieval and early modern proletariat. These divisions then made it possible to break up the village community that had been
the basis of defending common lands and customary rights and of advancing both against feudal power. Foucault thus provides a faulty and
misleading history of discipline, punishment and of the body. In ignoring the same history, Agamben
misses an opportunity to
provide an explanation for the scapegoating of part of the population , that is, to divide and conquer
under conditions where the expropriation from common rights and property, and commonly used
resources and public goods is on the agenda. As Polanyi pointed out long ago, the state was the central actor in the imposition
of the self-regulating market14; as Marx pointed out, it wrote these chapters in the annals of humankind “in letters of blood and fire15”. It is to
Agamben’s credit, indeed it is a singular triumph of his work to have begun the process of showing us the implications in constitutional law and
practice of political and juridical expropriation. His failure is that he does not connect this process to either economic expropriation, as Peter
Linebaugh does in his Magna Carta Manifesto, or to the imposition of neoliberal economic policies as does Naomi Klein in Shock Doctrine16.
Legal rights need an economic basis as Linebaugh shows us, a connection that allows us to see that the
reappropriation of legal and constitutional rights and of land and common property also go together.
Democracy, notwithstanding all of its limits under capitalist conditions, puts limits on the neoliberal project of
expropriation and exploitation, of privatization and profit, as Klein shows us. Economic possession provides
the material base for legal standing, rights both customary and written into formal law and such
protections in turn help defend the widespread popular possession of or guarantees to means of
subsistence and production, and public goods in general; democracy provides a political tool to either
protect people from expropriation, or to respond to enclosure by limiting exploitation and perhaps
creating preconditions for reversing the initial dispossession. Such an approach, and the historical
evidence and reading of it, provide us with not just hope, something singularly lacking in any reading of
Agamben, but also with a useable strategy for setting things right. The use of theories as tools and guides
to real world action with the possibility of overcoming our problems should always be the test of a political or
social theory, not the sophistication of its citations and language, or its demonstration of how radical and
depressing a critique of the existing but worsening state of things it can provide . Naomi Klein and Peter Linebaugh
are able to answer the first question I ask of Agamben explicitly – why is this happening when and where it is. Their answer, with some
differences in emphasis and cases examined is similar: the imposition of neoliberalism and the expropriation of land, the privatization of public
goods and resources, and enhancing of the structures of exploitation at the expense of workers and their communities who lose both access to
resources and political rights for their self-defense, is at the root of the recent attacks on civil liberties and the impositions of states of
emergency and expansion of executive powers around the world. Klein traces how this has emerged since at least the Pinochet coup and
dictatorship in Chile and the Milton Friedman-advised economic policies that followed. Linebaugh shows how the relationship between
expropriation of the commons and expropriation of political and legal liberties has gone together since the Middle Ages and how the struggle
against both has similarly gone together. Both see and show some differences in the scale and intensity of such exploitation and expropriation
in western countries with democratic institutions and traditions and the same processes in the Global South. Both the global processes and the
local differences are important. But for Agamben the lesser intensity of repression in say the US or Europe compared with during the
dictatorships in the Southern Cone of Latin America are illusory, since presumably governments from Washington to Rome, Paris, London and
Berlin could have done the same as their South American colleagues at anytime, and indeed are moving toward doing so. If they are doing so,
or preparing to do so, asking why and what has prevented it until now is worth doing, as it might help us to think about what to do next to
avoid the fate of Chileans after Allende for instance. That fate was both an economic and a political/legal one, as Klein shows. Indeed, she
critiques a body not of theory but of practice, one that is benign and has done much to make things better for many people, for an approach
and practice consistent with the theory of autonomy of the political, namely Human Rights. Human Rights as a common form of political
activism, as Klein shows had its start with the attempt to free political prisoners and end torture in Argentina, Chile, Uruguay and Brazil17.
Klein’s criticism is that by ignoring completely economic and class issues, Human Rights activists and organizations were often able to limit
repressive policies and free individuals imprisoned, but were unable to put an end to the repressive practices because they did not address why
these were imposed in the first place. Unpopular economic policies, policies that expropriate people, that exploit them or facilitate their
expropriation and exploitation, require authoritarian measures. The range goes from Reagan, Thatcher, Bush-Clinton-Bush-Obama
authoritarian free market policies to the ferocious repression of Nigeria during the early 80s and its government’s Campaign against Indiscipline
when death penalty crimes against property multiplied exponentially, to the horrors of any number of civil wars in Africa, to the US invasion of
Iraq. We want to know what accounts for the greater ability to resist the worst cases, whether class power that is intact or the
institutionalization of past class struggles limits the options and even the normal everyday set of options imaginable for state rulers and policy
makers. What that suggests is that the greater repression in countries where the usual practice is more or less respectful of rights most of the
time is an act of desperation. Indeed, an old and to my mind still strong argument on the left was that dictatorships and fascism were responses
to acute class struggle against exploitation. That this recourse to violent repression signaled a situation where the ruling classes had little or
nothing to lose for gambling everything on an all-ornothing solution to their problems. Indeed the painstaking historical work of Tim Mason on
Nazi Germany suggests that just such a solution to just such a problem was the basis of Nazism18, a view backed up by the work of David
Abraham on the profits squeeze faced by German capital19 . My argument is that states of exception and the reduction of part or all of the
population governed by state power to bare life are based upon attempts to expropriate all or part of a population from their land, their access
to resources, subsistence and the means of production; or upon the imposition of neoliberal policies accomplishing analogous acts of primitive
accumulation (privatization of resources or public goods, elimination of limits on exploitation and market forces, freeing of the power of
employers over workers, freeing of capital from regulations or limitations on its actions and movements). The case of Nazi Germany,
the paradigmatic case for Agamben and one of the paradigmatic cases for Arendt’s study of totalitarianism, far from making the
argument for autonomy of the political, instead supports the argument that political repression is based on
economic expropriation and exploitation, and that rights and liberties, in turn are based on economic democracy, on either
widespread or common ownership of resources, or on economic class organization by workers and the gains made using democracy to sustain
economic conditions. The Nazi regime was about applying the colonial lessons to Europe itself, treating Eastern Europe as the “The Frontier” to
be made into lebensraum. That is what makes Hitler Hitler: that he applied methods to Europe that were previously only allowable for non-
Europeans, or in expropriating a state's own people. Or that at least had been non-allowable for European states since the Witch Trials, and
since the French Revolution had imposed limits on the expropriation and exploitation of the European population, limitations that were not in
effect for the colonial world. The
key to the weakness of Agamben's understanding of the problem is the
inability to [notice] see the economic bases of state power, of the state of emergency, of individual
rights. Yet this is precisely what Hitler’s regime was for. Indeed, while the pioneer Marxist historian of Nazi Germany, Tim
Mason, came to the conclusion that Hitler’s Germany was an example of the autonomy of the political, his
conclusion was based on this as the only, desperate solution to the problem of socio-economic class
relations in Germany; in brief, as the only way to defeat the organized power of the working class in
Germany – to impose a monopoly of power under an extremely violent anti-working class regime that
would use lethal force to destroy all of the working class organizations, and therefore the working class’
ability to resist exploitation. Indeed, Adam Tooze in Wages of Destruction, a recent and innovative work on the Nazi economy, shows
that Nazi leaders used the model of “one-man management” as a principle that ran from the father as “head of the German household” to the
owner of the factory to the Fuhrer himself. This model appealed to German business owners and convinced them that they would benefit from
a reinstatement of their lost authority in the workplace under Nazi rule. Indeed that was a major part of the Nazi program. Even, as Mason
shows, state run or nationalist unions for workers were out of the question for Hitler as they indicated that workers had some right to
representation as a particular sector of society20. They were to be banned as well. The regime would then be free to construct a
volksgemeinschaft – Mason always made clear that this part of the plan failed, as workers were never, at least until very late in the War,
supportive of the Nazi regime – that would provide the resources needed to overrun the rest of Europe and expropriate and enslave large parts
of the population. The expropriation and exploitation of the population of Eastern Europe and the Soviet Union and military defeat of the forces
of Western Europe that could prevent this, and the incorporation of these resources into the German military power was the point of Hitler’s
politics21 . For Adam Tooze, Furthermore, although it is important to do justice to the shift in power relations between the state and business
that undoubtedly occurred in the early 1930s, we must be careful to avoid falling into the trap of viewing German business merely as the
passive object of the regime’s draconian new system of regulation. As we have seen, profits were rising rapidly after 1933…22 “The Nazi
regime” concludes Tooze, “was a ‘dictatorship of the bosses’” as Communists and Socialists argued.23 What of the Holocaust however? Of the
reduction of so many millions under the most ferocious state of exception ever into homo sacer? The Nazi concentration camp is
Agamben’s “biopolitical paradigm of the modern ”,24 and the Jewish victim of the Nazi Final Solution the
paradigmatic homo sacer: “The Jew living under Nazism is the privileged negative referent of the new biopolitical sovereignty and is,
as such, a flagrant case of a homo sacer in the sense of life that may be killed but not sacrificed.25” For Agamben, a crucial
experience for understanding both states of exception and homo sacer is that the Nazis first stripped
Jews of their citizenship before condemning them to death in the camps 26. This is important because it indicates the
usefulness of the concept of homo sacer itself. But by not seeing the expropriated and expropriation as homo sacer and instead relying on
juridical categories bereft of their economic content, Agamben
fails to see why a state of exception or an act of
exclusion would serve anyone or anything. It then inevitably becomes a language game. For the Jews
murdered in the Holocaust were not merely stripped of their citizenship but were also expropriated of
property, and put through the Selektion which determined whether or not they could work. If they
could, they were given the minimum rations needed to work themselves eventually to death, being as
productive as possible for the Nazi state , and Adam Tooze shows that whether one could work or not determined whether they
were simply killed.27 Jews were murdered after it was found they could not work, Gypsies were murdered as were Russians, Ukrainians and
others if they could not work. Prisoners - Jews, Gypsies and Ukrainians included -were provided rations if they could work with the caveat that
priority rations under the terrible food shortage the Nazi regime faced in Europe went to Germans first, then to Western Europeans, and only
then to Eastern Europeans, Russians, Ukrainians and last to Jews. Hitler, it is worth noting, told his Armaments Minister and the Gauleiter in
charge of labor mobilization (that is, organizing slave foreign labor) that with the conquest of the East, the Slav
inhabitants were to be
treated as “Red Indians28,” making the link between Agamben’s prototypical case of Homo Sacer and
the experience of Native American expropriation (and resistance to such) explicit. In other words, while legal status
is not irrelevant in understanding the fate of Holocaust victims, it is not independent of economic
concerns – the ability to exploit even those whose lives were of no other interest to the state than the work they could do. Tooze quotes the
Wehrmacht’s military-economic office to this effect. It called for the most precise balance between calories and ability to work, concluding that
100 well-fed people are more productive than 200 receiving just enough to keep them alive, and that “the minimum rations distributed to
simply keep people alive…must be regarded from the point of view of the national war economy as a pure loss…”. Tooze comments, “Here was
not the “anti-economic” logic of anti-Semitism but the ruthless materialist logic of the Hunger Plan that…had arrived at the conclusion that
millions of people needed to be killed…29” Further, in the economic conditions of the war, the Nazi regime was unable to organize agriculture
in such a way as to avoid having to make triage decisions. Such a ferocious and extreme racist regime inevitably made these decisions on the
basis of ethnic and racial hierarchy. But these triage policies were linked to the whole program of expropriation of the population (and the
eventual resettlement of the land by Germans with surviving groups of non-Germans working under slavery conditions for them30) which had
arguably, along with the program of military conquest from which this expropriation was inseparable, caused the famine conditions of food
shortage in the first place. That Nazi racial theory was the reason why no hesitation was made in deciding to murder large parts of the
European population that were unwanted by German rulers is undeniable, and that this racial theory is in no way reducible to economic or class
issues even in the “last instance” is clear. But the Final Solution itself and the criteria by which individual Jews and others lived or died were
based on extreme scarcity, on productive ability, on labor power and the ability to work for the Nazi economy. This includes the too easily
forgotten slaughter of millions who were neither Jews nor Gypsies, among whom were many killed for being socialists, communists and trade
union activists, none of whom are memorialized in recent Holocaust memorials, but whose murders again remind us that the state of exception
and the exploitation and expropriation of workers remain inseparable. In this sense, isn’t the Nazi experience merely the most horrifying
version of capitalism? Isn’t the “live and let die” philosophy of the market in which workers have only a “human right” or “inalienable right to
life” (or more recently in the US to live in a home) so long as they produce profit for capitalists the normality, and the death camp merely its
most frightening extreme? Its trump card? Isn’t, in other words, the state of exception when capital attempts to rip up the rules that have
limited it as a result of previous class struggles and the democratization these have brought about, in order to carry out a desperate new round
of expropriation and to smash proletarian resistance to enclosure and exploitation? That
is, hasn’t Agamben ultimately put the
cart before the horse, put effect before cause? In ignoring capitalism, its primitive accumulation and the
intensification of repression against organized resistance when class struggles against exploitation have
reached high levels hasn’t Agamben failed to explain why any of the phenomena he is rightly
concerned about are happening? A final point to make concerns that other prototypical case of both Arendt’s category of
totalitarianism and of the deprivation of human rights or of individual liberties, namely the Stalinist Soviet Union. Doesn’t the USSR and Stalin’s
dictatorship belie my argument – what regime could be further from the privatizing frenzy of the post-1989 globalization than that one? Except
for one thing – whatever the motivations and whatever the particularities of the unique social formation in the Soviet Union during the Stalin
era, there is no question that the forced collectivization of the peasantry was a classic, indeed an especially brutal version of primitive
accumulation of capital, of expropriation of the land and means of production from the peasantry, of enclosures. That it became the state, not
private companies or individuals who came into both possession and ownership of the land after expropriation makes little difference – indeed
it is not even historically unique or without precedent. After all, who was the owner and possessor of the indigenous peoples’ land after
expropriation in North America if not the US state31? Some has remained state property in the US ever since, from national parks to military
bases. The fierce repression of liberties, the state of exception that was a semi-permanent condition of Soviet life grew not from Lenin’s
theories of the party32 , or from some Bolshevik Jacobinism, but rather from Stalin’s expropriation of the peasantry and the repression needed
to accomplish this act of primitive accumulation of capital. The Soviet genocide in the Ukraine parallels Hitler’s focus on the Ukraine as the key
breadbasket territory for his planned reorganization of Eastern Europe under German occupation33. But in both cases the expropriation of the
people from the land, a process ironically first theorized by Karl Marx, was at work. Conclusion: State Transformation without State of Exception
In failing to take into account the expropriation of the slave, the enclosure of the commons, the expropriation of the peasantry and the burning
of the witch, the occupation of the colonized’s lands, the IMF Structural Adjustment Program and the repression needed to impose it against
resistance, hasn’t
Agamben also failed to provide his own theoretical framework with the tools needed to
explain the survival or death of the Jew in the Nazi camp, his own paradigmatic example? If we find, as
Isabella Clough-Marinaro has34, that the camps for Roma in Italy today are classic examples of homo sacer, right down to publicly exposed
showers on concrete enclosures surrounded by barbed wire, needn’t we try to understand what these new horrors have to do with the rolling
back of the welfare state in Europe?; with the attack on employment and wages?; with the intensified exploitation that includes that of the
undocumented immigrants and the public discourses demonizing them?; with the increased law and order regimes, campaigns against crime
that criminalize the Roma, the undocumented and other minorities that have allowed the Italian military to be deployed in the streets to keep
an eye on the population; with the creation of such scapegoats to divide the working class exactly at such a time of attack on hard-won social
gains? Agamben, as Clough-Marinaro demonstrates, is
indispensable to help analyze the camps in the first place, but I
would argue that he is of nearly no help at all to help us strategize about what to do about them , because he
doesn’t understand what any of it has to do with class relations, relations of expropriation, exploitation and class struggle against these. And
that means he can’t understand what the latter has already accomplished and what it has yet to accomplish. To understand this, we need to
understand the welfare state itself as it has developed. To do that we need to understand democracy, which in turn requires us to think about
the state, as Agamben calls on us to do, but to do so in a way that goes beyond the drama of the state of exception to include the historical
accomplishments of the class struggle, particularly those other two categories, democracy and the welfare state. While this is not the place to
enter into a full discussion of these issues, which I address elsewhere35, a brief summary of my argument on democracy is useful to make clear
my differences with Agamben’s approach. Modern democracy is part of what Polanyi calls the “double movement36” of expropriation and the
establishment of the self-regulating market and the efforts by society to defend itself from this process. Modern democracy is born from the
English and French Revolutions37, from the anti-slavery movement in the US, and from the labor and socialist movements in Europe38. Mass
democratic movements that have furthered this process have been fought either to retard the separation of the people from the land and
access to means of production and subsistence, or to provide new guarantees of meeting these needs and providing livelihood to those already
expropriated and now exploited. Put differently, the commitment of ordinary people to democracy comes from their need and desire to use it
to do something; democracy is an instrument of popular classes to defend and extend their interests. If, as I have argued, citing various authors’
work to the point, the protection of individual rights, avoidance of becoming homo sacer, and prevention of the state of exception required
material foundations, those material foundations have, in modern times, required political protection. The
modern democratic class
struggle, the establishment of democracy and its extension, remain, along with defending or
reestablishing control of subsistence and means of production directly in the hands of the people (the
commons), the best means of avoiding the fate that Agamben warns us about. This means that the too-
facile dismissal of all legal, democratic or constitutional protections, hard-won by generations of
struggle, that appear in his analysis that the state of exception is already unexceptional but rather the
rule, disarms the very efforts needed to protect us from the state power39 . The democratic movements have
broken down the sterile and false separation between the oikos and the polis argued for by Hannah Arendt40, and the similar separations
between everyday life and social reproduction and public life, between zoe and bios. This
is not by chance: slave plantations
were private homes; the family enterprise studied by Marx was considered virtually an extension of the
owners’ household; the needs of working families for subsistence or health care, or the infant mortality
rate, unwanted pregnancies and their impact on women’s lives and the mortality rate of women in
childbirth were all considered private affairs, not public or political ones. It was the accomplishment of
the modern workers and women’s movements, of modern democracy, to change this state of affairs.
Agamben sneeringly dismisses, indeed scarily demonizes this accomplishment as “biopolitics ”: What
comes to light in order to be exposed apud Westminster is, once again, the body of homo sacer, which is to say, bare life. This is modern
democracy’s strength, and at the same time, its inner contradiction: modern democracy does not abolish sacred life but rather shatters it and
disseminates it into every individual body, making it into what is at stake in political conflict. And the root of modern democracy’s secret
biopolitical calling lies here: he who will later appear as the bearer of rights, and according to a curious oxymoron, as the new sovereign
subject…can only be constituted as such through the repetition of the sovereign exception and the isolation of corpus, bare life, in himself. If it
is true that law needs a body in order to be in force, and if one can speak, in this sense, of “law’s desire to have a body”, democracy responds to
this desire by compelling law to assume the care of this body.41 Agamben goes on to argue, incredibly, that the very right of habeas corpus by
requiring the sheriff to exhibit the body of the accused undermines the liberty of the accused, an interpretation unique in the thousand-year
history of habeas corpus rights whose defense has quite rightly underpinned many oppositions to Bush administration tactics in the War on
Terror, and whose history has recently been provided a radical defense and materialist interpretation by Linebaugh already cited. The long
process of democracy “compelling law to assume the care of the body” instead is the accomplishment of centuries of struggles by ordinary
people precisely to move the state out of the business of killing and into the business of providing health care and education. This is what led
Ernest Gellner to state, while overstating the case, “"At the base of the modern social order stands not the executioner but the professor…
The monopoly of legitimate education is now more important, more central than the monopoly of
legitimate violence.42” That the European social democratic welfare state coincided with the European Union’s one great accomplishment, the end of wars between the nation-states of Europe should give us pause for thought43. That the abolition
of the death penalty followed these developments should make the relationship clear. What seals the argument is that the revived militarism, political repression and demonization of unpopular minority groups in Europe follow upon the efforts directed by the EU Commission and signed
on to by every EU member government to privatize, liberalize markets, overcome workers’ resistance to “flexible” work organization, and impose neoliberal globalization44. The relationship between the democratic class struggle to defend subsistence and basic needs and the defense of
individual rights and limitation of state power should be clear. That it isn’t should be attributed to an elitist, too-sophisticated by half approach to the state, democracy and class struggle that appears radical but in fact undermines the very foundations of democracy and social welfare by
not making these struggles an integral part of its analysis. The movements for democracy, the class and gender struggles that brought it about and have continued to try to extend it to more spheres of life are, as Marx explained to the First International, not extensions of state power, but
partial transformations of the state from a police apparatus and killing machine for the ruling class into a set of functions whose institutions and cadre now concern themselves with caring for the needs of society’s members, with all the contradictions and flaws that studies of the welfare
state have demonstrated but with all its benefits too: However, the more enlightened part of the working class fully understands that the future of its class, and, therefore, of mankind, altogether depends upon the formation of the rising working generation. They know that, before
everything else, the children and juvenile workers must be saved from the crushing effects of the present system. This can only be effected by converting social reason into social force, and, under given circumstances, there exists no other method of doing so, than through general laws,
enforced by the power of the state. In enforcing such laws, the working class do not fortify governmental power. On the contrary, they transform that power, now used against them, into their own agency. They effect by a general act what they would vainly attempt by a multitude of
isolated individual efforts45 . Let us look briefly at two examples in which states of exception were declared by democratically elected governments. In India, Indira Gandhi’s declaration of a state of emergency, while arguably “overdetermined,” came at a particular period characterized
by a large strike movement by workers and resistance to policies of her son Sanjay involving two forms of enclosure: slum clearance – expropriation of the poor from their housing – and forced sterilization46. The latter explicitly meets Agamben’s criteria for biopolitics in a democracy
leading to a state of exception – though strangely he does not cite it as an example to strengthen his argument. This omission is perhaps due to the fact that, despite Indira Gandhi’s government being characterized by some policies favorable to the lower castes and the rural poor at
times, it can hardly be seen as a welfare state or an example of social democracy. That is, its entry into biopolitical policies- the forced sterilization campaign – was purely repressive and not also a form of “care of the body” or social needs. It wasn’t democratic enough, in other words, to
be demonized by Agamben. The end of the state of emergency came about through normal democratic means, namely an election that threw Gandhi out of office. Agamben, we might point out, has no theory to address the ending of states of exception. Marx, again speaking for the First
International’s General Council defined the Lincoln administration as, “the only example on record in which the Government fought for the people’s liberty, against a section of its own citizens.”47 Agamben, quite reasonably lists Lincoln’s suspension of Habeas Corpus during the Civil War
as one of the historic states of exception declared by western liberal democracies that he sees as a precursor to today’s menaces. He is right, but in fact this goes to the heart of my argument against his approach. Three questions can be asked here: was the declaration of a state of
emergency, as it were, or to be more precise, the use of exceptional measures, in the actual and not just declared defense of the interests of the popular classes and democracy rather than subversive of these? Was there a real emergency, in the sense that there was a plausible threat,
not just to some lives and property say, but to the whole democratic order and survival of the society and of the interests of the popular classes? And was the declaration temporary and withdrawn after a short time and when the emergency was over? I think that a plausible case can be
made that the answer is yes to all three of these, whereas in the case of say, the internment of the Japanese-Americans during World War II, which involved the expropriation of land and property from the victims, the answer would certainly be no to the first two. But isn’t all this just a
social democratic argument, one that forgets the long history of proletarian attempts to establish direct democracy through the Paris Commune, the Soviets, the Workers Councils? Didn’t Marx also argue that “the working class cannot simply lay hold of the ready-made State machinery,
and wield it for its own purposes.”? Indeed, is this not why Negri and others have been drawn to a kind of photo-negative version of Schmitt’s state of exception – the revolutionary moment in which the proletariat or the multitude can rewrite both the material and the legal

The experience of recent and current movements and radical left governments in Latin America
constitutions?

challenges the idea that a state of exception is needed to carry out constitutional transformation. In
Venezuela, Bolivia, Ecuador and elsewhere, major changes are being carried out and new constitutions
written48 . These experiences, despite great diversity in their proposals, debates and outcomes, as well
as of course the national contexts in which they occur, have several common features. First, they involve
an alliance between an elected representative government and a mass movement that is itself quite
diverse, but which is based on the working majority of the population; second they involve attempts to meld traditional
representation using existing institutions and various forms of direct democracy at the workplace,
neighborhood, and municipality; third, the new constitutions result from a large-scale discussion with
serious input and participation from the grassroots and associations of all types; fourth, constitutional
changes have been put to referenda votes, so it is the people, in an expression of Rousseau’s General Will, that can
approve changes in which they participated both at the level of their associations and through representatives in drafting; fifth the changes
affect the material constitution – the distribution of property, the rights of people to land or subsistence or income, as well as the legal
apparatus; sixth, these movements typically involve movements of exactly those groups historically designated as homo sacer: the indigenous
people of the continent. These movements and governments are certainly not without their contradictions, particularly regarding the role of
the executive and relationship of leader to movement. But it would be a mistake to deny the autonomy, now greater, now lesser, of the
movements from the heads of government, even in Venezuela49 . No state of exception has been used to impose these changes; rather the
only risks of a state of exception have come during the coup attempt by the opponents of President Chavez of Venezuela, with backing from the
Bush Administration, and the recent coup in Honduras, overthrowing President Zelaya. The
mass democratic, proletarian
movement that has opposed that coup testifies powerfully to the theses in this essay . Similarly, though in a very
different context, the mass occupation of the capital Bangkok by pro-democracy demonstrators in Thailand,
largely farmers and urban workers, and the massacre they suffered at the hands of the military, the
monarchy and the elites they protect, under martial law, again suggests that the lines are increasingly
clearly drawn between one set of class forces demanding democracy so as to use democratic
government and their own organized movement to meet the needs of the majority, and those who are
willing to destroy civil liberties and democratic institutions if necessary, in order to impose and sustain
neoliberal capitalist globalization and the inequalities it creates. Even the examples from the region that do not easily
fit this model, such as the Zapatista movement in Mexico and the radical democracy briefly created and
crushed in Oaxaca have not been attempts at all or nothing insurrections , but have seen themselves as part of larger
processes needed to democratize Mexico. Can these approaches work where both traditional social democracy and the revolutionary tradition
of direct democracy have failed to fully transform the state from a machine for killing – from a permanent state of exception – into an
instrument of the people to meet their needs under their control? The
struggles of peoples who have resisted
expropriation for 500 years deserve our patience as they work out how to deal with conditions that
Agamben has only interpreted for us. The point remains to change them.
 2AC — Author Indict [Short]
The alt fails, wrecks resistance, and legal protections solve violence
— edited for potentially problematic language that we do not endorse
Colatrella 11, University of Maryland University College, Europe (Colatrella Steven, May 2011,
"Nothing Exceptional: Against Agamben," Journal for Critical Education Policy Studies, Vol.9. No.1,
http://www.jceps.com/wp-content/uploads/PDFs/09-1-05.pdf)

Primitive accumulation, enclosure and expropriation

Three omissions will serve to help us [realize] see the limits of Agamben’s [analysis] vision, and why these
limitations weaken the very explanatory power of his analysis of even what he so insightfully
describes. First, in neither Homo Sacer nor in State of Exception is there any mention of Native Americans.
This may seem either tangential or unfair as a complaint. After all, Agamben is interested in today’s
political repression and is European. There would seem to be no particular reason for him to privilege, or
even to be interested in the history of Native America. And perhaps it is only my own background as an American that leads me to
consider this relevant. But I think that neither Agamben’s Italian nationality, nor my US nationality are important here. Homo Sacer is
purported to be a concept that enables us to grasp how and why some members of society, and by
implication any of us, can be stripped of any legal protection or community membership, and killed or
subjected to any lesser punishment including torture, with impunity. The Native American experience is ,
arguably, the paradigmatic case of entire populations being dispossessed, killed with impunity, provided
no protection legal or otherwise, or, as in the case of the Cherokee and other southern nations, having
the formal legal recognition by both the local states and the US Supreme Court, superseded by
executive power (by President Andrew Jackson to be precise). Granted, no book can cover every relevant case and
Agamben’s books discussed here are both short, if dense. But he does, in State of Exception go over a very
thorough history of states of emergency and the use of exceptional powers by governments all over the
world9 . Tracing the roots of both states of exception and of the construction of homo sacer figures in
liberal democratic countries is a part of the exercise that Agamben is engaged in . Thus failing to even
refer to Native Americans is significant, both with reference to the historical period when “The only good
Indian is a dead Indian” was a practical guide to genocide that more closely approximates homo sacer
historically than anything I can imagine – and to the present day when many Native Americans would argue with reason that little has
changed. The second omission, more difficult to explain by Agamben’s geographical origins, is any
reference at all to the history of colonialism, or to conditions in the ex-colonial world of the Global
South. Arendt, despite numerous failings of analysis and history some of which I discuss below, nevertheless to her credit makes the
relationship between imperialism and racism in the colonies and “totalitarianism” in Europe a central part of her analysis in the Origins of
Totalitarianism10. Yet there is no discussion of this relationship in Agamben . In this sense, Agamben represents an
analytical step backwards from Arendt, not a further development of her insights. The rest of the world has dropped
off the mental map. This is not just a question of priorities , of the brevity of books that can’t cover everything, nor even
of Eurocentrism though it certainly is in part that. It is rather a serious failure of analysis and historical imagination
that, as we will see below, makes Agamben’s theoretical discussion less useful and reduces dramatically its
explanatory power. For many decades, in country after country, continent after continent, European
and other colonial powers could act with impunity and without regard to the life of, let alone legally
recognized rights of the colonized people. The Belgian Congo, and the horrors of slavery; the repeated
experience of mass famine in India (done away with since Independence and the establishment of democratic government); the
labeling of resistance against expropriation and foreign rule Mau Mau to define it as an atavistic
throwback to savagery to enable the British rulers to destroy it militarily ; over a million dead in the Algerian
struggle for Independence against the French; the near-genocide in Libya by the Italians, the list could go
on for pages. None of it relevant, presumably, either to states of exception, in which sovereigns are
unconstrained by any legal or customary limit in their actions, nor in understanding the reduction of
person from members of communities with either customary or legal rights to bare life, dependent on
the self-restraint at whim of others for their survival. Nor does the history of neocolonialism, with its two
million dead in Vietnam; its horrifying wars by death squad in El Salvador and Nicaragua, and
Guatemala, its horrors in Angola and Mozambique, or apartheid in South Africa, warrant even a
mention from presumably the most up to date, innovative thinker of the denial of rights and life by
state power writing today. Not to mention Structural Adjustment Programs, the IMF, World Bank or
WTO and the policies that continue, after decades, to condemn millions to mere survival and worse, and which have regularly
resulted in resistance, repression, and states of emergency by military and civilian powers. Yet, in failing to see the ex-colonial
world, Agamben has also missed the part of their population that ended up in the West . I refer of course to the
enslaved. In discussing homo sacer as a legal figure with no rights, no standing, no community
membership that others were obliged to respect, do we not immediately recall Dred Scott? Is there
nothing that the experience of the American slave can teach us about homo sacer? If slavery can tell us
something about homo sacer, is it possible that anti-slavery, the struggle for abolition can tell us
something about states of exception and how to fight them? Could the movement against the Fugitive
Slave Act in the 1850s United States, for instance, be of some help in thinking about our problems today? Finally,
Agamben, in his understanding of homo sacer seems to miss the most obvious point imaginable, at
least to anyone familiar with the work of either Karl Marx or Karl Polanyi11 , namely, that a human being
reduced to bare life, to the mere physical existence without rights or guarantees, far from being a
marginal figure, a canary in a coal mine, is instead the human condition of the majority of the
population under capitalism. Here is where it is clear why I have stressed the autonomy of the political as a way of understanding
the world that is counter-productive: it takes work to describe humanity reduced to bare life and then fail to see it
all around one in the form of the proletarian majority of every society, North and South. Political
deracination is clearly related to economic deracination, or to use the, in my view clearer Marxian
terminology, expropriation and enclosure, or proletarianization. In what way is Agamben’s homo sacer
any different than the “rightless and free” proletarian that has always existed under capitalism?
Hasn’t it always been allowable to “live and let die” without remorse those unable to make a living, keep
a job or income, provide for themselves or family members, keep up rent or mortgage payments, pay for
a meal? Shouldn’t we see this as violence, as Zizek in his book Violence12 argues, the daily, systemic “economic” violence of
market relations and the propertylessness of the majority in capitalist society? Isn’t this exactly the non-state of emergency,
non-exceptional violence, that kills millions annually, that Agamben, like Arendt before him, ignores? Further, doesn’t his
lack of attention to the “normal” process of proletarianization, of expropriation and enclosure, lead to his failure to see these on a grand scale with the maximum possible state violence in the colonial world, in the neocolonial world, in slavery and the slave trade, in the genocide of the
Native Americans? Yet, failing to see these, isn’t it likely that even his understanding of the processes and histories he knows well and does examine in detail, Europe and the US, and the Jewish Holocaust and Nazi regime, are flawed as well? Despite her limitations, wasn’t Arendt closer to
the truth with her view that the genocide of Jews and Roma in Nazi Europe, or even the slaughter of the peasantry under forced collectivization and the genocide in the Ukraine under Stalin, that is, the results of the process she identifies, rightly or wrongly, as totalitarianism, had their
roots in the colonialist, imperialist and racist experiences? (Although Arendt’s analysis was likewise crippled by her insistence on the autonomy of the political, and by her semi-apologetic discussion of imperialist racism). In ignoring even the process of expropriation and enclosure, or
proletarianization, in Europe itself, Agamben fails again to note crucial historical moments of political repression – of both states of exception and homo sacer. The most important of these moments in the expropriation of the peasantry of Europe was the witch trials of the 16th and 17th
centuries, as Silvia Federici has shown in her book Caliban and the Witch. Federici indeed shows the limitations of Foucault’s own analysis of the growth of control of the body by state and medical authorities, of biopolitics13. Foucault ignores the torturing to death of hundreds of
thousands of women across Europe over several centuries, and the role these horrors played in the construction of gender inequalities under capitalism and in dividing the medieval and early modern proletariat. These divisions then made it possible to break up the village community that
had been the basis of defending common lands and customary rights and of advancing both against feudal power. Foucault thus provides a faulty and misleading history of discipline, punishment and of the body. In ignoring the same history, Agamben misses an opportunity to provide an
explanation for the scapegoating of part of the population, that is, to divide and conquer under conditions where the expropriation from common rights and property, and commonly used resources and public goods is on the agenda. As Polanyi pointed out long ago, the state was the
central actor in the imposition of the self-regulating market14; as Marx pointed out, it wrote these chapters in the annals of humankind “in letters of blood and fire15”. It is to Agamben’s credit, indeed it is a singular triumph of his work to have begun the process of showing us the
implications in constitutional law and practice of political and juridical expropriation. His failure is that he does not connect this process to either economic expropriation, as Peter Linebaugh does in his Magna Carta Manifesto, or to the imposition of neoliberal economic policies as does

Legal rights need an economic basis as Linebaugh shows us, a connection that allows us to see that
Naomi Klein in Shock Doctrine16.

the reappropriation of legal and constitutional rights and of land and common property also go
together. Democracy, notwithstanding all of its limits under capitalist conditions, puts limits on the neoliberal project of
expropriation and exploitation, of privatization and profit, as Klein shows us. Economic possession provides
the material base for legal standing, rights both customary and written into formal law and such
protections in turn help defend the widespread popular possession of or guarantees to means of
subsistence and production, and public goods in general; democracy provides a political tool to either
protect people from expropriation, or to respond to enclosure by limiting exploitation and perhaps
creating preconditions for reversing the initial dispossession. Such an approach, and the historical
evidence and reading of it, provide us with not just hope, something singularly lacking in any reading of
Agamben, but also with a useable strategy for setting things right. The use of theories as tools and guides
to real world action with the possibility of overcoming our problems should always be the test of a political or
social theory, not the sophistication of its citations and language, or its demonstration of how radical and
depressing a critique of the existing but worsening state of things it can provide . Naomi Klein and Peter Linebaugh are able to answer the first
question I ask of Agamben explicitly – why is this happening when and where it is. Their answer, with some differences in emphasis and cases examined is similar: the imposition of neoliberalism and the expropriation of land, the privatization of public goods and resources, and enhancing
of the structures of exploitation at the expense of workers and their communities who lose both access to resources and political rights for their self-defense, is at the root of the recent attacks on civil liberties and the impositions of states of emergency and expansion of executive powers
around the world. Klein traces how this has emerged since at least the Pinochet coup and dictatorship in Chile and the Milton Friedman-advised economic policies that followed. Linebaugh shows how the relationship between expropriation of the commons and expropriation of political
and legal liberties has gone together since the Middle Ages and how the struggle against both has similarly gone together. Both see and show some differences in the scale and intensity of such exploitation and expropriation in western countries with democratic institutions and traditions
and the same processes in the Global South. Both the global processes and the local differences are important. But for Agamben the lesser intensity of repression in say the US or Europe compared with during the dictatorships in the Southern Cone of Latin America are illusory, since
presumably governments from Washington to Rome, Paris, London and Berlin could have done the same as their South American colleagues at anytime, and indeed are moving toward doing so. If they are doing so, or preparing to do so, asking why and what has prevented it until now is
worth doing, as it might help us to think about what to do next to avoid the fate of Chileans after Allende for instance. That fate was both an economic and a political/legal one, as Klein shows. Indeed, she critiques a body not of theory but of practice, one that is benign and has done
much to make things better for many people, for an approach and practice consistent with the theory of autonomy of the political, namely Human Rights. Human Rights as a common form of political activism, as Klein shows had its start with the attempt to free political prisoners and end
torture in Argentina, Chile, Uruguay and Brazil17. Klein’s criticism is that by ignoring completely economic and class issues, Human Rights activists and organizations were often able to limit repressive policies and free individuals imprisoned, but were unable to put an end to the repressive
practices because they did not address why these were imposed in the first place. Unpopular economic policies, policies that expropriate people, that exploit them or facilitate their expropriation and exploitation, require authoritarian measures. The range goes from Reagan, Thatcher,
Bush-Clinton-Bush-Obama authoritarian free market policies to the ferocious repression of Nigeria during the early 80s and its government’s Campaign against Indiscipline when death penalty crimes against property multiplied exponentially, to the horrors of any number of civil wars in
Africa, to the US invasion of Iraq. We want to know what accounts for the greater ability to resist the worst cases, whether class power that is intact or the institutionalization of past class struggles limits the options and even the normal everyday set of options imaginable for state rulers
and policy makers. What that suggests is that the greater repression in countries where the usual practice is more or less respectful of rights most of the time is an act of desperation. Indeed, an old and to my mind still strong argument on the left was that dictatorships and fascism were
responses to acute class struggle against exploitation. That this recourse to violent repression signaled a situation where the ruling classes had little or nothing to lose for gambling everything on an all-ornothing solution to their problems. Indeed the painstaking historical work of Tim
Mason on Nazi Germany suggests that just such a solution to just such a problem was the basis of Nazism18, a view backed up by the work of David Abraham on the profits squeeze faced by German capital19 . My argument is that states of exception and the reduction of part or all of the
population governed by state power to bare life are based upon attempts to expropriate all or part of a population from their land, their access to resources, subsistence and the means of production; or upon the imposition of neoliberal policies accomplishing analogous acts of primitive

accumulation (privatization of resources or public goods, elimination of limits on exploitation and market forces, freeing of the power of employers over workers, freeing of capital from regulations or limitations on its actions and movements). The case of Nazi
Germany, the paradigmatic case for Agamben and one of the paradigmatic cases for Arendt’s study of totalitarianism, far
from making the argument for autonomy of the political, instead supports the argument that political repression is
based on economic expropriation and exploitation, and that rights and liberties, in turn are based on economic democracy,
on either widespread or common ownership of resources, or on economic class organization by workers and the gains made using democracy
to sustain economic conditions. The Nazi regime was about applying the colonial lessons to Europe itself, treating Eastern Europe as the “The
Frontier” to be made into lebensraum. That is what makes Hitler Hitler: that he applied methods to Europe that were previously only allowable
for non-Europeans, or in expropriating a state's own people. Or that at least had been non-allowable for European states since the Witch Trials,
and since the French Revolution had imposed limits on the expropriation and exploitation of the European population, limitations that were not
in effect for the colonial world. The
key to the weakness of Agamben's understanding of the problem is the
inability to [notice] see the economic bases of state power, of the state of emergency, of individual
rights. Yet this is precisely what Hitler’s regime was for. Indeed, while the pioneer Marxist historian of Nazi Germany, Tim
Mason, came to the conclusion that Hitler’s Germany was an example of the autonomy of the political, his
conclusion was based on this as the only, desperate solution to the problem of socio-economic class
relations in Germany; in brief, as the only way to defeat the organized power of the working class in
Germany – to impose a monopoly of power under an extremely violent anti-working class regime that
would use lethal force to destroy all of the working class organizations, and therefore the working class’
ability to resist exploitation. Indeed, Adam Tooze in Wages of Destruction, a recent and innovative work on the Nazi economy, shows that Nazi leaders used the model of “one-man management” as a principle that ran from the father as
“head of the German household” to the owner of the factory to the Fuhrer himself. This model appealed to German business owners and convinced them that they would benefit from a reinstatement of their lost authority in the workplace under Nazi rule. Indeed that was a major part of
the Nazi program. Even, as Mason shows, state run or nationalist unions for workers were out of the question for Hitler as they indicated that workers had some right to representation as a particular sector of society20. They were to be banned as well. The regime would then be free to
construct a volksgemeinschaft – Mason always made clear that this part of the plan failed, as workers were never, at least until very late in the War, supportive of the Nazi regime – that would provide the resources needed to overrun the rest of Europe and expropriate and enslave large
parts of the population. The expropriation and exploitation of the population of Eastern Europe and the Soviet Union and military defeat of the forces of Western Europe that could prevent this, and the incorporation of these resources into the German military power was the point of
Hitler’s politics21 . For Adam Tooze, Furthermore, although it is important to do justice to the shift in power relations between the state and business that undoubtedly occurred in the early 1930s, we must be careful to avoid falling into the trap of viewing German business merely as the
passive object of the regime’s draconian new system of regulation. As we have seen, profits were rising rapidly after 1933…22 “The Nazi regime” concludes Tooze, “was a ‘dictatorship of the bosses’” as Communists and Socialists argued.23 What of the Holocaust however? Of the
reduction of so many millions under the most ferocious state of exception ever into homo sacer? The Nazi concentration camp is Agamben’s “biopolitical paradigm of the modern”,24 and the Jewish victim of the Nazi Final Solution the paradigmatic homo sacer: “The Jew living under
Nazism is the privileged negative referent of the new biopolitical sovereignty and is, as such, a flagrant case of a homo sacer in the sense of life that may be killed but not sacrificed.25” For Agamben, a crucial experience for understanding both states of exception and homo sacer is that
the Nazis first stripped Jews of their citizenship before condemning them to death in the camps26. This is important because it indicates the usefulness of the concept of homo sacer itself. But by not seeing the expropriated and expropriation as homo sacer and instead relying on juridical
categories bereft of their economic content, Agamben fails to see why a state of exception or an act of exclusion would serve anyone or anything. It then inevitably becomes a language game. For the Jews murdered in the Holocaust were not merely stripped of their citizenship but were
also expropriated of property, and put through the Selektion which determined whether or not they could work. If they could, they were given the minimum rations needed to work themselves eventually to death, being as productive as possible for the Nazi state, and Adam Tooze shows
that whether one could work or not determined whether they were simply killed.27 Jews were murdered after it was found they could not work, Gypsies were murdered as were Russians, Ukrainians and others if they could not work. Prisoners - Jews, Gypsies and Ukrainians included
-were provided rations if they could work with the caveat that priority rations under the terrible food shortage the Nazi regime faced in Europe went to Germans first, then to Western Europeans, and only then to Eastern Europeans, Russians, Ukrainians and last to Jews. Hitler, it is worth
noting, told his Armaments Minister and the Gauleiter in charge of labor mobilization (that is, organizing slave foreign labor) that with the conquest of the East, the Slav inhabitants were to be treated as “Red Indians28,” making the link between Agamben’s prototypical case of Homo
Sacer and the experience of Native American expropriation (and resistance to such) explicit. In other words, while legal status is not irrelevant in understanding the fate of Holocaust victims, it is not independent of economic concerns – the ability to exploit even those whose lives were of
no other interest to the state than the work they could do. Tooze quotes the Wehrmacht’s military-economic office to this effect. It called for the most precise balance between calories and ability to work, concluding that 100 well-fed people are more productive than 200 receiving just
enough to keep them alive, and that “the minimum rations distributed to simply keep people alive…must be regarded from the point of view of the national war economy as a pure loss…”. Tooze comments, “Here was not the “anti-economic” logic of anti-Semitism but the ruthless
materialist logic of the Hunger Plan that…had arrived at the conclusion that millions of people needed to be killed…29” Further, in the economic conditions of the war, the Nazi regime was unable to organize agriculture in such a way as to avoid having to make triage decisions. Such a
ferocious and extreme racist regime inevitably made these decisions on the basis of ethnic and racial hierarchy. But these triage policies were linked to the whole program of expropriation of the population (and the eventual resettlement of the land by Germans with surviving groups of
non-Germans working under slavery conditions for them30) which had arguably, along with the program of military conquest from which this expropriation was inseparable, caused the famine conditions of food shortage in the first place. That Nazi racial theory was the reason why no
hesitation was made in deciding to murder large parts of the European population that were unwanted by German rulers is undeniable, and that this racial theory is in no way reducible to economic or class issues even in the “last instance” is clear. But the Final Solution itself and the
criteria by which individual Jews and others lived or died were based on extreme scarcity, on productive ability, on labor power and the ability to work for the Nazi economy. This includes the too easily forgotten slaughter of millions who were neither Jews nor Gypsies, among whom were
many killed for being socialists, communists and trade union activists, none of whom are memorialized in recent Holocaust memorials, but whose murders again remind us that the state of exception and the exploitation and expropriation of workers remain inseparable. In this sense, isn’t
the Nazi experience merely the most horrifying version of capitalism? Isn’t the “live and let die” philosophy of the market in which workers have only a “human right” or “inalienable right to life” (or more recently in the US to live in a home) so long as they produce profit for capitalists the
normality, and the death camp merely its most frightening extreme? Its trump card? Isn’t, in other words, the state of exception when capital attempts to rip up the rules that have limited it as a result of previous class struggles and the democratization these have brought about, in order

That is, hasn’t Agamben ultimately put the cart before the
to carry out a desperate new round of expropriation and to smash proletarian resistance to enclosure and exploitation?

horse, put effect before cause? In ignoring capitalism, its primitive accumulation and the intensification
of repression against organized resistance when class struggles against exploitation have reached high
levels hasn’t Agamben failed to explain why any of the phenomena he is rightly concerned about are
happening? A final point to make concerns that other prototypical case of both Arendt’s category of totalitarianism and of the deprivation
of human rights or of individual liberties, namely the Stalinist Soviet Union. Doesn’t the USSR and Stalin’s dictatorship belie my argument –
what regime could be further from the privatizing frenzy of the post-1989 globalization than that one? Except for one thing – whatever the
motivations and whatever the particularities of the unique social formation in the Soviet Union during the Stalin era, there is no question that
the forced collectivization of the peasantry was a classic, indeed an especially brutal version of primitive accumulation of capital, of
expropriation of the land and means of production from the peasantry, of enclosures. That it became the state, not private companies or
individuals who came into both possession and ownership of the land after expropriation makes little difference – indeed it is not even
historically unique or without precedent. After all, who was the owner and possessor of the indigenous peoples’ land after expropriation in
North America if not the US state31? Some has remained state property in the US ever since, from national parks to military bases. The fierce
repression of liberties, the state of exception that was a semi-permanent condition of Soviet life grew not from Lenin’s theories of the party32 ,
or from some Bolshevik Jacobinism, but rather from Stalin’s expropriation of the peasantry and the repression needed to accomplish this act of
primitive accumulation of capital. The Soviet genocide in the Ukraine parallels Hitler’s focus on the Ukraine as the key breadbasket territory for
his planned reorganization of Eastern Europe under German occupation33. But in both cases the expropriation of the people from the land, a
process ironically first theorized by Karl Marx, was at work. Conclusion: State Transformation without State of Exception In failing to take into
account the expropriation of the slave, the enclosure of the commons, the expropriation of the peasantry and the burning of the witch, the
occupation of the colonized’s lands, the IMF Structural Adjustment Program and the repression needed to impose it against resistance, hasn’t
Agamben also failed to provide his own theoretical framework with the tools needed to explain the
survival or death of the Jew in the Nazi camp, his own paradigmatic example? If we find, as Isabella Clough-
Marinaro has34, that the camps for Roma in Italy today are classic examples of homo sacer, right down to publicly exposed showers on
concrete enclosures surrounded by barbed wire, needn’t we try to understand what these new horrors have to do with the rolling back of the
welfare state in Europe?; with the attack on employment and wages?; with the intensified exploitation that includes that of the undocumented
immigrants and the public discourses demonizing them?; with the increased law and order regimes, campaigns against crime that criminalize
the Roma, the undocumented and other minorities that have allowed the Italian military to be deployed in the streets to keep an eye on the
population; with the creation of such scapegoats to divide the working class exactly at such a time of attack on hard-won social gains?
Agamben, as Clough-Marinaro demonstrates, is indispensable to help analyze the camps in the first place, but I would
argue that he is of nearly no help at all to help us strategize about what to do about them , because he doesn’t
understand what any of it has to do with class relations, relations of expropriation, exploitation and class struggle against these. And that
means he can’t understand what the latter has already accomplished and what it has yet to accomplish. To understand this, we need to
understand the welfare state itself as it has developed. To do that we need to understand democracy, which in turn requires us to think about
the state, as Agamben calls on us to do, but to do so in a way that goes beyond the drama of the state of exception to include the historical
accomplishments of the class struggle, particularly those other two categories, democracy and the welfare state. While this is not the place to
enter into a full discussion of these issues, which I address elsewhere35, a brief summary of my argument on democracy is useful to make clear
my differences with Agamben’s approach. Modern democracy is part of what Polanyi calls the “double movement36” of expropriation and the
establishment of the self-regulating market and the efforts by society to defend itself from this process. Modern democracy is born from the
English and French Revolutions37, from the anti-slavery movement in the US, and from the labor and socialist movements in Europe38. Mass
democratic movements that have furthered this process have been fought either to retard the separation of the people from the land and
access to means of production and subsistence, or to provide new guarantees of meeting these needs and providing livelihood to those already
expropriated and now exploited. Put differently, the commitment of ordinary people to democracy comes from their need and desire to use it
to do something; democracy is an instrument of popular classes to defend and extend their interests. If, as I have argued, citing various authors’
work to the point, the protection of individual rights, avoidance of becoming homo sacer, and prevention of the state of exception required
material foundations, those material foundations have, in modern times, required political protection. The
modern democratic class
struggle, the establishment of democracy and its extension, remain, along with defending or
reestablishing control of subsistence and means of production directly in the hands of the people (the
commons), the best means of avoiding the fate that Agamben warns us about. This means that the too-
facile dismissal of all legal, democratic or constitutional protections, hard-won by generations of
struggle, that appear in his analysis that the state of exception is already unexceptional but rather the
rule, disarms the very efforts needed to protect us from the state power39 . The democratic movements have
broken down the sterile and false separation between the oikos and the polis argued for by Hannah Arendt40, and the similar separations
between everyday life and social reproduction and public life, between zoe and bios. This is not by chance: slave plantations were private homes; the family enterprise studied by Marx was considered virtually an extension of the owners’ household; the needs of working families for subsistence or health care, or the

infant mortality rate, unwanted pregnancies and their impact on women’s lives and the mortality rate of women in childbirth were all considered private affairs, not public or political ones. It was the accomplishment of the modern workers and women’s movements, of modern democracy, to change this state of affairs. Agamben sneeringly dismisses, indeed scarily demonizes this accomplishment as “biopolitics”: What comes to light in order to be exposed apud Westminster is, once again, the body of homo sacer, which is to say, bare life. This is modern democracy’s
strength, and at the same time, its inner contradiction: modern democracy does not abolish sacred life but rather shatters it and disseminates it into every individual body, making it into what is at stake in political conflict. And the root of modern democracy’s secret biopolitical calling lies here: he who will later appear as the bearer of rights, and according to a curious oxymoron, as the new sovereign subject…can only be constituted as such through the repetition of the sovereign exception and the isolation of corpus, bare life, in himself. If it is true that law needs a body in
order to be in force, and if one can speak, in this sense, of “law’s desire to have a body”, democracy responds to this desire by compelling law to assume the care of this body.41 Agamben goes on to argue, incredibly, that the very right of habeas corpus by requiring the sheriff to exhibit the body of the accused undermines the liberty of the accused, an interpretation unique in the thousand-year history of habeas corpus rights whose defense has quite rightly underpinned many oppositions to Bush administration tactics in the War on Terror, and whose history has recently
been provided a radical defense and materialist interpretation by Linebaugh already cited. The long process of democracy “compelling law to assume the care of the body” instead is the accomplishment of centuries of struggles by ordinary people precisely to move the state out of the business of killing and into the business of providing health care and education. This is what led Ernest Gellner to state, while overstating the case, “"At the base of the modern social order stands not the executioner but the professor… The monopoly of legitimate education is now more
important, more central than the monopoly of legitimate violence.42” That the European social democratic welfare state coincided with the European Union’s one great accomplishment, the end of wars between the nation-states of Europe should give us pause for thought43. That the abolition of the death penalty followed these developments should make the relationship clear. What seals the argument is that the revived militarism, political repression and demonization of unpopular minority groups in Europe follow upon the efforts directed by the EU Commission and
signed on to by every EU member government to privatize, liberalize markets, overcome workers’ resistance to “flexible” work organization, and impose neoliberal globalization44. The relationship between the democratic class struggle to defend subsistence and basic needs and the defense of individual rights and limitation of state power should be clear. That it isn’t should be attributed to an elitist, too-sophisticated by half approach to the state, democracy and class struggle that appears radical but in fact undermines the very foundations of democracy and social
welfare by not making these struggles an integral part of its analysis. The movements for democracy, the class and gender struggles that brought it about and have continued to try to extend it to more spheres of life are, as Marx explained to the First International, not extensions of state power, but partial transformations of the state from a police apparatus and killing machine for the ruling class into a set of functions whose institutions and cadre now concern themselves with caring for the needs of society’s members, with all the contradictions and flaws that studies of
the welfare state have demonstrated but with all its benefits too: However, the more enlightened part of the working class fully understands that the future of its class, and, therefore, of mankind, altogether depends upon the formation of the rising working generation. They know that, before everything else, the children and juvenile workers must be saved from the crushing effects of the present system. This can only be effected by converting social reason into social force, and, under given circumstances, there exists no other method of doing so, than through general
laws, enforced by the power of the state. In enforcing such laws, the working class do not fortify governmental power. On the contrary, they transform that power, now used against them, into their own agency. They effect by a general act what they would vainly attempt by a multitude of isolated individual efforts45 . Let us look briefly at two examples in which states of exception were declared by democratically elected governments. In India, Indira Gandhi’s declaration of a state of emergency, while arguably “overdetermined,” came at a particular period characterized
by a large strike movement by workers and resistance to policies of her son Sanjay involving two forms of enclosure: slum clearance – expropriation of the poor from their housing – and forced sterilization46. The latter explicitly meets Agamben’s criteria for biopolitics in a democracy leading to a state of exception – though strangely he does not cite it as an example to strengthen his argument. This omission is perhaps due to the fact that, despite Indira Gandhi’s government being characterized by some policies favorable to the lower castes and the rural poor at times, it
can hardly be seen as a welfare state or an example of social democracy. That is, its entry into biopolitical policies- the forced sterilization campaign – was purely repressive and not also a form of “care of the body” or social needs. It wasn’t democratic enough, in other words, to be demonized by Agamben. The end of the state of emergency came about through normal democratic means, namely an election that threw Gandhi out of office. Agamben, we might point out, has no theory to address the ending of states of exception. Marx, again speaking for the First
International’s General Council defined the Lincoln administration as, “the only example on record in which the Government fought for the people’s liberty, against a section of its own citizens.”47 Agamben, quite reasonably lists Lincoln’s suspension of Habeas Corpus during the Civil War as one of the historic states of exception declared by western liberal democracies that he sees as a precursor to today’s menaces. He is right, but in fact this goes to the heart of my argument against his approach. Three questions can be asked here: was the declaration of a state of
emergency, as it were, or to be more precise, the use of exceptional measures, in the actual and not just declared defense of the interests of the popular classes and democracy rather than subversive of these? Was there a real emergency, in the sense that there was a plausible threat, not just to some lives and property say, but to the whole democratic order and survival of the society and of the interests of the popular classes? And was the declaration temporary and withdrawn after a short time and when the emergency was over? I think that a plausible case can be
made that the answer is yes to all three of these, whereas in the case of say, the internment of the Japanese-Americans during World War II, which involved the expropriation of land and property from the victims, the answer would certainly be no to the first two. But isn’t all this just a social democratic argument, one that forgets the long history of proletarian attempts to establish direct democracy through the Paris Commune, the Soviets, the Workers Councils? Didn’t Marx also argue that “the working class cannot simply lay hold of the ready-made State machinery, and
wield it for its own purposes.”? Indeed, is this not why Negri and others have been drawn to a kind of photo-negative version of Schmitt’s state of exception – the revolutionary moment in which the proletariat or the multitude can rewrite both the material and the legal constitutions? The experience of recent and current movements and radical left governments in Latin America challenges the idea that a state of exception is needed to carry out constitutional transformation. In Venezuela, Bolivia, Ecuador and elsewhere, major changes are being carried out and new
constitutions written48 . These experiences, despite great diversity in their proposals, debates and outcomes, as well as of course the national contexts in which they occur, have several common features. First, they involve an alliance between an elected representative government and a mass movement that is itself quite diverse, but which is based on the working majority of the population; second they involve attempts to meld traditional representation using existing institutions and various forms of direct democracy at the workplace, neighborhood, and municipality;
third, the new constitutions result from a large-scale discussion with serious input and participation from the grassroots and associations of all types; fourth, constitutional changes have been put to referenda votes, so it is the people, in an expression of Rousseau’s General Will, that can approve changes in which they participated both at the level of their associations and through representatives in drafting; fifth the changes affect the material constitution – the distribution of property, the rights of people to land or subsistence or income, as well as the legal apparatus;
sixth, these movements typically involve movements of exactly those groups historically designated as homo sacer: the indigenous people of the continent. These movements and governments are certainly not without their contradictions, particularly regarding the role of the executive and relationship of leader to movement. But it would be a mistake to deny the autonomy, now greater, now lesser, of the movements from the heads of government, even in Venezuela49 . No state of exception has been used to impose these changes; rather the only risks of a state of
exception have come during the coup attempt by the opponents of President Chavez of Venezuela, with backing from the Bush Administration, and the recent coup in Honduras, overthrowing President Zelaya. The mass democratic, proletarian movement that has opposed that coup testifies powerfully to the theses in this essay. Similarly, though in a very different context, the mass occupation of the capital Bangkok by pro-democracy demonstrators in Thailand, largely farmers and urban workers, and the massacre they suffered at the hands of the military, the monarchy
and the elites they protect, under martial law, again suggests that the lines are increasingly clearly drawn between one set of class forces demanding democracy so as to use democratic government and their own organized movement to meet the needs of the majority, and those who are willing to destroy civil liberties and democratic institutions if necessary, in order to impose and sustain neoliberal capitalist globalization and the inequalities it creates. Even the examples from the region that do not easily fit this model, such as the Zapatista movement in Mexico and the

The struggles
radical democracy briefly created and crushed in Oaxaca have not been attempts at all or nothing insurrections, but have seen themselves as part of larger processes needed to democratize Mexico. Can these approaches work where both traditional social democracy and the revolutionary tradition of direct democracy have failed to fully transform the state from a machine for killing – from a permanent state of exception – into an instrument of the people to meet their needs under their control?

of peoples who have resisted expropriation for 500 years deserve our patience as they work out how to
deal with conditions that Agamben has only interpreted for us. The point remains to change them.
 2AC — AT: Messianism
He makes incorrect conclusions about the political realm — resorting to messianism
ignores their solution’s flaws and status quo issues; voting neg ignores praxis, which
can be combined with the alt
— edited for potentially problematic language that we do not endorse
Shape 9, author of Slavoj Žižek: A Little Piece of the Real, coeditor of Traversing the Fantasy (Ashgate
2005), and the author of numerous pieces on political theory, psychoanalysis, and critical theory. He
currently teaches philosophy and psychoanalytic studies at Deakin University (Matthew Sharpe, 2009,
"Can Agamben save us?,” Vol. 5, No. 3, https://cpb-ap-
se2.wpmucdn.com/blogs.auckland.ac.nz/dist/f/375/files/2018/05/vol5-no3-2009-only-agamben-can-
save-us-sharpe-272-1068-1-PB-qoshcy.pdf)

In this paper, I
offer a strong criticism of Giorgio Agamben’s recent political texts. I argue that these texts bring
to fruition a larger, contentious trend in the theoretical academy coupling one-dimensional, pessimistic
accounts of modernity with strands of messianism. Since the political prospects of messianism, as
Agamben’s analyses show, are very thin indeed, I reflectively question the presuppositions that lead him to this prescriptive
juncture. In Part I, recurring to Scholem’s classic analyses of Jewish messianism , I show how Agamben’s
messianism borrows more or less directly (in The Open) from kabalistic, antinomian, utopian messianism.
Having established this exegetical point, I argue two theses in parts II and III. The first, specifically
theoretical thesis is that Agamben is driven into his political messianism by the transcendental logic of
his analyses of ‘the political’, one which by its nature occludes meaningfully political distinctions by
instead seeking out their ontological grounds . The second, specifically political thesis is that the
widespread embrace of ontological messianism by thinkers in the post-Marxian academy is a symptom
of, rather than a cure for, the wider malaise of the political left in the first world . If critical theory is serious about engaging with
progressive praxis, one thing it must do is recall the difference between politics and prima philosophia, so that it does not continue to seek out ‘redemption’ – or at least an apology – in the
bowels of the latter. … there is no room for political philosophy in Heidegger’s work, and this may well be due to the fact that the room in question has been taken by the god or the gods’. —
Leo Strauss, ‘On Philosophy as Rigorous Science … a profound legend, not without cause, allows [the messiah] to have been born on the day of the collapse of the destruction of the temple. —
Gershom Scholem, ‘On the Messianic Idea in Judaism’.

INTRODUCTION

This paper proffers a critique of Giorgio Agamben’s work, read as a contribution to political theory. It is a critique in the Kantian sense, firstly, in that I will ask the quid juris question concerning Agemben’s recent work on politics and law, its structuring principles and its limits. The essay is
a critique in the Left Hegelian sense, secondly, in that I will locate Agamben’s work in, and as reflecting, its broader socio-political and theoretical conjuncture. A reflection on this context, it will be contended, is needed to explain the enthusiastic reception Agamben’s political work has
received from many theorists on the post-Marxian Left, given the avowed ‘weakness’ of Agamben’s political prescriptions. Highlighting the transcendental or ontological apparatus underlying Agamben’s thought, I shall argue that is thought is deeply non-political. Uniting these two
meanings of critique is the contention that Agamben’s position should be read as an example of what might today be called a ‘left’ or ‘young Heideggerian’ position. Characteristic of this type of position, as we shall detail in Agamben’s case in II, is an ontologization of politics. According to
this ontologization, political action, agency and institutions reappear in the lens of the theorist as a reified – yet at the same time lastingly elusive – realm called ‘the political’. The political stake of this paper will be to suggest that the prospects of this post-Heideggerian hypostasization of
‘the political’ are as questionable as is its own political genealogy, the other foundation of which is the ill-famed ‘political theology’ of Carl Schmitt. The deepest theoretical stake of this paper will be to challenge the ‘speculative’ coupling to which this type of position invariably recurs. On
the one side, there is a pessimistic and one-dimensional analysis of modernity framed by way of an ontological inquiry which takes its bearings from an epochal philosophy of history (modernity as the end of history, culmination of technik, metaphysics, bio-power, age of de-politicizations
etc…) On the other side of this ‘ontologico-messianic machine’ (to adopt one of Agamben’s modes of speaking), since this is all that can remain, the young Heideggerian is left sounding more and more openly messianic strains in lieu of any recognizably political reflection. My orienting
questions in what follows will hence be these. First: Agamben and other recent messianists (Heidegger, Derrida, with some qualifications, Alain Badiou1 ) do hail from the critical heritage[s] of Kant if not the left Hegelians. So, this paper wants to ask: is it not time for us now to call into
question whether there is something about the structuring logic of the argumentation of these figures and their follows that necessarily ‘abandons’ us to this set of deeply apolitical positions, when we try to descend back from the theoria into the political realm? Second: what might it say
about the current state of our socio-political and theoretical conjuncture that these messianic strains of thought can be so widely received as meaningfully political and ‘of the left’ in any way? As readers will know, Heidegger’s famous 1966 Der Spiegel interview, his last public testament,
bore a portentous title: ‘Only a God Can Save Us’. This paper’s title means ironically to evoke this famous Heideggerian lament: one which frankly represents a claim more proper to a prophet than to a philosopher, let alone a critical theorist or source for the same. Having exposed the
terms of Agamben’s messianism from out of the heart of the kabalistic lineage in I, I will argue two theses in parts II and III. The first, specifically theoretical thesis is that Agamben (like other young Heideggerians) is driven into his political messianism by the transcendental logic of his
analyses of ‘the political’. This is a form of argumentation which by its nature relativizes or occludes meaningfully political distinctions by instead seeking out their ontological grounds. The second, specifically political thesis is that the widespread embrace of ontological messianism by
thinkers in the post-Marxian academy is a symptom of, rather than a cure for, the wider malaises of the political left in the first world. If we are serious about reconnecting with progressive praxis, this paper aims to suggest, critical theorists must first of all recall the difference between
politics and prima philosophia. The price of not doing so is that we shall continue fruitlessly to seek out our ‘redemption’, or at least an apology, in the bowels of the latter.

I. ‘AND ON THE SEVENTH DAY …’: THE KABALA OF GIORGIO AGAMBEN

As Gershom Scholem has documented in ‘Towards an Understanding of the Messianic Idea in Judaism’, the messianic idea is not exclusively an esoteric kabalistic heritage. It has its place also
in orthodox Judaism, hearkening back to the biblical prophets and the apocalypticists (Scholem, 1971, 5). The ‘messianic idea in Judaism’ looks forward to the coming of an exceptional figure
or messiah: ‘anointed one’, or in Greek: christos. This figure, so it is hoped, will somehow or in some way – this being the issue within Judaism and between Judaism and Christianity – redeem
the Jewish people (?), the nation of Israel (?), all humanity (?), or creation itself (?). There are two strands of messianism which compete within and between rabbinic and kabalistic Judaism,
according to Scholem’s account. The first is restorative messianism. Herein, messianic hope is ‘directed to the return and recreation of a past condition which comes to be felt as ideal’.

This by contrast ‘aims at a state of things which has

(Scholem, 1971, 3) The second, more radical strand taken up by kabala is utopian messianism.

never yet existed’. We will see in good time that this is the heritage to which Georgio Agamben and his
follows have been drawn (Scholem, 1971, 3). Alongside Voegelin (Voegelin, 1997) and Camus (Camus, 1962), Scholem notes
the debt owed by the nineteenth century, modernist conceptions of historical progress to the utopian
messianic idea. The enlighteners inherited this notion from Judaism and Christianity . 2 Yet Scholem, contra Schmitt (cf. Schmitt, 1985, 35ff.),
also insists on the decisive rupture between these theological sources and the ‘the idea of the progress of the human race in the universe’ which might be read as their modern secularization. (Scholem, 1971, 37) The messianism of the bible, Scholem notes, harbors no notion of any more
or less linear, if unwitting, historical progress. In it, the Hebrews or all humanity are not moving towards a final redemption that could be secured by human action. In a way which illuminates for contemporary readers the messianic heritage of Walter Benjamin’s theses on the philosophy
of history (Benjamin, 1968), Scholem clarifies what he means. Redemption in the Judaic tradition: … is rather a transcendence breaking in upon history, an intrusion in which history itself perishes, transformed in its ruin because it is struck by a beam of light shining into it from an outside
source. (Scholem, 1971, 10) In Jewish messianism, that is – as today in the Badiouian ‘event’ (eg: Badiou, 2001) 3 – the coming of the messiah is absolutely impossible to predict. Nor is there anything we can do to ‘press for the end’, as this heretical stance came to be named within
rabbinic Judaism (Scholem, 1971, 14–15): In opposition to [all such ideas] stands the … powerful sentiment that the Messianic age cannot be calculated. This was most pointedly expressed in the words of a Talmudic teacher of the third century: ‘three things come unawares: the Messiah,
a found article, and a scorpion’. (Scholem, 1971, 11) There is much disagreement between the messianic texts as to what exactly will happen when the messiah comes, or if we can say anything about this time a venir at all. The problem is that if the present, unredeemed period of galut
(or exile) is the period wherein the Law or hallakhah remains inviolate, the relationship between the law and human life will presumably change when the messiah arrives (Scholem, 1971, 19).4 The messianic idea within Judaism, in this way, opens ‘a window on the world which hallakhah
rather preferred to leave shrouded in the mists of uncertainty’ (Scholem, 1971, 20). Two tendencies emerged in medieval kabala, Scholem notes, which threatened to blow the orthodox edifice apart. (Scholem, 1971, 22) The first tendency, significantly for us here, is that which might be
called a gnostic ontologization of the national messianism of the prophets. The second tendency is an openly antinomian interpretation of messianic time. According to this, after the coming of the messiah, the torah as fallen Jews know it will no longer apply. Both tendencies, as Scholem
documents, came to their head in the Lurianic kabala of the 16th–17th centuries (Scholem, 1971, 43 ff.). The key figure was the notorious Sabbatai Zevi, a man widely received across the galut as the messiah, before (and even after) Zevi infamously converted to Islam in 1668 (cf. Katan,

1958). Because Agamben’s work, let us illustrate the ontological parameters of this
it will take us through a straight gate towards

heretical strand of messianism by considering, with Scholem, the Ra’ya Mekenna of the 14th century . This
mystical text sets out a utopian vision of the messianic time. It draws on the Biblical symbols of the Tree of Knowledge and the Tree of Life. Since the expulsion of Adam and Eve from Eden, the
Ra’ya Mekenna explains, the world has been ruled by the tree of knowledge. This tree is also the tree of death and of the Law, since tasting its fruit granted humans knowledge of good and
evil, and with these, all the other metaphysical oppositions that rive the human condition as we know it: Under the rule of this Tree, the world contains differentiated spheres: the holy and the
profane, the pure and the impure, the permitted and the forbidden, the living and the dead, the divine and the demonic. (Scholem, 1971, 23) Although the torah itself is one, the Ra’ya
Mekenna explains, it is nevertheless revealed differently in the different ages of the world. So the torah appears to us now in the ‘shell’ of positive Law, and the regime(s) of things commanded
and forbidden. (Scholem, 1971, 23) Yet the world of messianic redemption, and of the Tree of Life, will be very different. ‘In the Messianic redemption the full glory of the utopian … breaks
forth’, Scholem explains: … when the world will again be subject of the Tree of Life, the face of Hallakhah itself will change. Where everything is Holy there will no longer be need of restrictions
and prohibitions, and whatever appear as such today will either vanish or reveal a totally new, as yet undiscovered, aspect of pure positiveness … (Scholem, 1971, 23–24). Centuries before
Benjamin or Agamben, the Ra’ya Mekenna already invokes the idyll of a ‘pure life’, unsheathed from the obstructing ‘shells’ of prohibition. Such an a-nomic world is what human beings can
look forward to in the messianic time (Scholem, 1971, 23). This time in its turn is for the Ra’ya Mekenna a veritable ‘cosmic Shabbat’ comparable to the seventh day in Genesis when the Lord
rested, well pleased with his creation. (Scholem, 1971, 72) In Scholem’s understatement on this text: ‘the utopian vision in rabbinic Judaism was driven no further than this, and scarcely could

have been’ (Scholem, 1971, 24). Arguably the most remarkable thing about what I want now to contend – namely that there is a direct lineage
between Giorgio Agamben’s work and the teachings of these marginal kabalistic texts (and the career of a false
messiah) – is that critical examination of Agamben’s texts renders this thesis uncontroversial. It is a little like
‘violating’ a prohibition that no longer stands, or pushing open a door that stands ajar, if only we care to look.5 In Means Without Ends, for
example, Agambenexplicitly bids up Scholem’s ‘ambiguous’ assessment of Saint Paul as ‘the most
outstanding example known to us of a revolutionary mystic’ . (at Agamben 2005a, 144; cf. Scholem, 1971, 58–59) We
should, says Agamben, align Christ’s: ‘I did not come to destroy the law, but to fulfill it’ with Sabbatai Zevi’s openly antinomian conviction that
‘the fulfillment of the Torah is its transgression’ (Scholem, 1971, 59–77; Agamben, 2000, 135).6 Agamben’s ‘Paulbuch’, The Time That Remains,
is meanwhile divided into six ‘days’. The book opens by stating Agamben’s immodest aim to blast out the messianic content in Paul’s texts from
beneath the sedimentations of two millennia of Christian orthodoxy (Agamben, 2005a, 1). And just as Agamben punctuates all his
texts with ‘Thresholds’ – and subsections marked by a Hebrew aleph 7 – the ‘sixth day’ in The Time that Remains issues in a final ‘Threshold’. In this ‘Threshold’, in lieu of the seventh ‘day’ or Shabbat, readers learn that Benjamin identified with Paul, so a reclaiming of

the Pauline legacy should pass by way of a reclaiming of Walter Benjamin. (Agamben, 2005a, 141, 144)) Putting Benjamin aside here, we can most concisely show the full depth of Agamben’s identification with utopian, cosmic and antinomian messianism by examining his remarkable 2002 work The Open: Man and Animal. The Open opens with Agamben reflecting upon the last page of a Hebrew Bible in the Ambrosian library in Milan. This bible features a miniature whose bottom half depicts the messianic banquet of the redeemed, on the last day or cosmic Shabbat. The
pictured righteous feast, like God in the last three hours of the day8 , on the flesh of leviathan. Moreover, they have animal heads. (Agamben, 2004, 1–3).9 The Open’s closing three chapters, meanwhile, help themselves to Benjamin’s enigmatic saying on carnal knowledge, which Agamben enigmatically suggests is ‘something like the hieroglyph of the new in-humanity’: Sexual fulfillment delivers the man from his mystery, which does not consist in sexuality but which in its fulfillment, and perhaps in it alone, is severed – not solved … (Agamben, 2004, 83). The penultimate
chapter of The Open, most openly of all, reads Titian’s great painting The Nymph and the Shepherd as a pictorial intimation of this messianic ‘happy life’ or ‘inhumanity’. The painting, Titian’s last, presents a fluted shepherd and naked nymph in an Edenic setting. It hence stands in simultaneous relation with and contrast to an earlier work, The Three Ages of Man. As Agamben explains, in words that closely recall the Ra’ya Mekenna from the 14th century: First of all, the figures of the two figures are inverted; for in the earlier work, the man is nude and the woman clothed …
In The Three Ages we also find, on the right, the shattered and dry tree – symbol of knowledge of sin – on which an Eros is leaning but ... in the late work Titian has it blooming on one side, thus bringing together in a single trunk the two Edenic trees, the Tree of Life and the Tree of Knowledge of Good and Evil. And while in the Three Ages the fawn is tranquilly stretched on the grass, it now takes the place of Eros and rises up the Tree of Life (Agamben, 2004, 86).10 So the question arises: is Agamben advocating a fairly undiluted return to the messianism of the most radical.
spiritually closed and aristocratic streams of kabala as an answer for the postMarxian Left? The answer remains finally no, as we could still expect given Agamben’s position of enunciation as a twenty first century secular intellectual. In the central chapters of The Open, 11 Agamben develops his position by way of an idiosyncratic reading of motifs from Heidegger, which (alongside Homo Sacer (1998) or Language and Death (1991)) unquestionably situate his work within the philosophical discourse of modernity in a way we shall detail in II below. So what is the force of
Agamben’s recourse to Heidegger in the heart of The Open? Reflecting on the 4th commandment to ‘remember the Sabbath day and keep it holy’, Lacan once cited a ‘humorous proverb.’ According to the proverb, this ‘extraordinary commandment’ leaves the common man with ‘no happy medium between the labor of love and the most stultifying boredom’. (Lacan, 1992, 81) Just so, Chapters 12 through 15 of Agamben’s The Open enact a strange appropriation of Heidegger’s notion of ‘profound boredom’. As readers will know, the Stimmung of boredom is mentioned in
Being and Time and What is Metaphysics? alongside angst as a mood wherein a dasein (human- or ‘there-being’) can become reflexively aware of its own ontological ‘homelessness’. Nothing, or ‘no thing’ bores us, Heidegger notes. If some- thing or project occupied us, we would not be bored. The world bores us. (Heidegger, 1973) Or more precisely, our own being-in-the-world does, insofar as it freights us with the ek-static ‘freedom’ from essence whose downside is the ‘guilt’-ridden jegemeinigkeit of having to frame our own (eigentlich) projects or have others (das man)
frame them for us (Heidegger, 1962, #9, 38–40). In The Open, however, Agamben radically inverts the, apparently profoundly melancholic, Heideggerian motif of ‘profound boredom’. In Heidegger’s 1929–30 lectures, Agamben notes, Heidegger famously asserted that animals lack the ability (or ‘openness’) to see entities meaningfully, which is distinctive to humans. Yet, despite this programmatic emphasis, Agamben stresses how Heidegger at a certain moment in the lectures cites – yes – Saint Paul’s saying at Romans 8:19 concerning animals’ ‘yearning expectation for
fulfillment’. What Paul veridically indicates at Roman 8:19, Heidegger enigmatically suggests, is a kind of ‘essential disruption’ in the animals’ closedness to the da of human da-sein (Agamben, 2004, 60–61). It would not be an exaggeration to say that Agamben charges this enigmatic moment in Heidegger’s lectures with truly messianic hope. Western thought epochally has been defined, Agamben has argued (chapters 7–9) by a conceptual operation which he names the ‘anthropological machine’. This ‘machine’ works by thinking the difference between humans and
animals (and in this way the meta- in the metaphysics of our being a human animal) by stipulating a liminal ‘missing link’ between the two. For the ancients, the missing link lay in figures of animals in human form (‘… the slave, the barbarian, … the foreigner …’ (Agamben, 2004, 37)). In the modern period, there are instead figurings of ‘the nonhuman in the human’ (for instance, the non-speaking human or ape, the Nazis’ ‘Jew’ and today’s ‘neomorts’ (Agamben, 2004, 37)). By contrast, Agamben glimpses in Heidegger’s conceptions of boredom and the ‘non-open’ of the
animal the ‘mysterious’ possibility of conceiving ‘simply living being’, free from the ex hypothesi restrictive shell of the metaphysico-anthropological machine. ‘The open and the free-of-being [lived in boredom] do not name something radically other with respect to the neither open-norclosed of the animal environment’, Agamben strikes out from Heidegger. Instead, he claims that both human boredom and animals’ instinctual ‘capitation’ by their specie-al objects (or ‘disinhibitors’) open up ‘the appearing of an undisconcealed as such’ (Agamben, 2004, 68). As such, they
disclose nothing less than the very lethe which ‘holds sway in aletheia’ (Agamben, 2004, 69) and that remained Heidegger’s topic throughout his career. With these remarkable propositions established, we can finally restore all the pieces of Agamben’s The Open to their proper places. Heidegger’s texts after 1933 increasingly distanced themselves from the language of active resolve he had used up to the National Socialist speeches. What takes its place as what would ground the critical force of Heidegger’s later thought is the sense that the modern age of the
‘consummate nihilism’ that issues out of the exhaustion of metaphysics, may nevertheless harbor a ‘saving power’. (eg: Heidegger, 1977) Chapters 3 (‘Snob’) and 16 (‘Animalization’12) of The Open for their part directly align this text with Agamben’s more ostensibly political texts, as well as this later-Heideggerian kulturpessimismus. (see II) In a signature move, Agamben proposes that we must ‘think together’ the Heideggerian motif of the end of metaphysics, Carl Schmitt’s authoritarian lament that liberalism represents ‘the depoliticization of human societies’ (Agamben,
2004, 76) and the ‘Hegelo-Kojevian idea of the end of history’.13 What is the result of this unlikely marriage? However remarkable it sounds, everything looks as though – trumping Heidegger – Agamben wants us to interpret today’s globalization of ‘the perfect senselessness’ of ‘the society of the spectacle’ (Agamben, 1998, 10, 11, 52, 120–121, 187–188) as something like the time immediately ‘between’ the sixth day and the messianic cosmic shabbat14 . ‘Let us reflect on the theoretical implications of this post-historical figure of the human’ which Kojeve encountered in
the far East, Agamben for instance intones directly in chapter 3 of The Open: First of all, humanity’s survival of its historical drama seems to introduce – between history and its end – a fringe of ultra-history that recalls the messianic reign of ten thousand years that, in both the Jewish and Christian traditions, will be established on earth between the last messianic event and the eternal life … (Agamben, 2004, 12). What remains for us, Agamben makes clear, is simply that we reflectively theoretically accept that (ultra-)historical terminus which ‘anyone who is not in
absolutely bad faith’ can reportedly see. This is the ‘fact’ that after 1914 and the first world war, ‘there are no longer historical tasks that can be taken on by, or even … assigned to, men’ (Agamben, 2004, 76). Two possibilities alone are instead open to us in the post-historical (pre-)Shabbat that Agamben, like Francis Fukuyama, takes Kojeve to have veridically disclosed. The first (‘bad’) potentiality is that we continue to technologically turn our backs on the ‘disconcealedness’ of the animality to which post-history has anyway consigned us. The second (‘good’) possibility is
that: Man [person], the shepherd of being, appropriates his own … animality, which neither remains hidden nor is made an object of mastery, but is thought as such, as pure abandonment (Agamben, 2004, 80 (our italics)). The final chapter of The Open (‘Outside of Being’) can hence take up the cosmological messianism of the 2nd century gnostic thinker, Basilides, and return us to the book’s beginning. Reading Basilides ‘after’ Heidegger, Agamben proposes that in the ‘saved night’ of the coming messianic time, after we have ‘bid farewell to the logos and to [our] own
history’, we might be redeemed in the same paradoxical sense as Basilides describes redemption. The redeemed, Basilides thought, will live blissfully because they will be blissfully ignorant of having been abandoned by God in creaturely reality. (Agamben, 2004, 90) The one thing needful if we are to join their ranks, advises Agamben, is that ‘just as Titian’s lovers forgive each other for their own lack of mystery’, we too cultivate an ignoscientia (a-knowledge, also forgiveness). This ignoscientia would, in the Heideggerian way, allow us to ‘stand serenely with [our] own
undisconcealedness’. The result, as The Open closes by promising, will be that: if one day … the ‘face in the sand’ that the sciences of man have formed on the shore of our history can finally be erased, what will appear will not be … a regained ‘humanity’. The righteous with animal heads in the miniature in the Ambrosian [with which The Open opens] do not represent a new declension of the man-animal relation so much as a figure of the ‘great ignorance’ which lets … them be outside of being …. Perhaps there is still a way in which living beings can sit at the banquet of
the righteous without taking an historical task and without setting the anthropological machine in motion … (Agamben, 2004, 92). Echoing Scholem, the critical theorist for their part might write: the messianic impulse in contemporary theory has never been driven this far, and scarcely could it have been.

II. HOMO SACER, OR THE TRANSCENDENTAL ABANDONMENT OF POLITICAL THEORY

Jacques Derrida qualifies his recourse to a messianicity without messianism. Alain Badiou looks to Paul’s
messianism to illustrate a logic allegedly characteristic of any ‘political’ subjectivity . By contrast, we have seen in
Part I how Giorgio Agamben is far closer to an open recuperation of kabalistic messianism . Yet, I want now to
contend that critical theorists should definitively not lose our (human) heads, faced by such extraordinary
formulations as those which close The Open. Thinking of psychoanalysis – one of earlier critical theory’s decisive sources –
should at least put us on our analytic guard about to a position whose idea of ‘redemption’ invokes infancy, boredom, the fantasy of ‘playing
with the law’ (Agamben, 2005b, 64), an ‘Edenic’ sexuality without mystery (Agamben, 2004, 90–92), a ‘community’ without any discernible
symbolic identity nor founding prohibitions, and an ‘in-humanity’ characterized by what Heidegger precisely calls the ‘nowhere without a no’ of
animals’ prediscursive ‘captivation’ by their ‘disinhibitors’.15 Gershom Scholem, who by contrast with Agamben frankly diagnoses Sabbatai Zevi
as a manic depressive (Scholem, 1971, 60), is characteristically more sober. ‘The escapist and extravagant nature of such utopianism’, Scholem
writes of the kabalistic messianism Agamben rejoins in The Open: … [a utopianism] which undertakes to determine the content of redemption
without having experienced it in fact, does of course subject it to the wild indulgence of fantasy …(Scholem, 1971, 13–14). Keeping
our
analytic heads, I want to ask now firstly about the form in which the content of Agamben’s messianism
is proffered, and in which it has been received. For Agamben presents his thought in the recent texts as
meaningfully political, or as pointing towards what he calls ‘another’, ‘coming’ or ‘new politics ’. And, given
the timely political subjects that Agamben analyses in Homo Sacer and State of Exception – which both
addressed executive exceptionalism – Agamben has been widely received in the post-Marxian left as a
political theorist or philosopher. One stylistic peculiarity of these more ostensibly political texts, certainly,
is the interruption of Agamben’s erudite analyses of the history of ideas with invocations of this ‘new
politics’. The content of these political invocations is cut from the same messianic cloth as the claims
Agamben presents in The Open: namely, desoeuvrement or worklessness (Agamben, 2000, 141), ‘pure mediality’,
‘inoperative community, … the coming people, whatever singularities, or however else they might be called [sic.] ...’ (Agamben, 2000, 117–118)
Agamben’s claim to speak authoritatively concerning ‘the political’, on the strength of his readings of
philosophical and religious texts, seems principally to be founded on the following non sequitur.
Versions of this non sequitur frame The Open, Means Without Ends, and Homo Sacer: i. At the beginning
of political philosophy, the opening book of Aristotle’s Politics defines human being s as both political
(zoon politikon) and speaking animals (zoon logon echon). These traits single humans out as living
animals who are yet beyond (meta) their physical, animal being (zoe). We are animals capable of qualified forms of
life: especially the bios theoretikos and bios politikos. Given this true exegetical premise, the problem is, Agamben feasts
immediately upon the questionable conclusion that : ii. the most needful, if not the only, ‘political’ thing
left to do (at least in our allegedly ‘ultrahistorical’ cul de sac) is accordingly to theoretically question this
Aristotelian framing of the political realm. Any more mundane disputation within this political realm
would by implication fall above or beneath, but in any case ‘outside’, the scope of political thought . So, for
example, The Open advises us: We must learn … to think of man as what results from the incongruity of these two elements [of man and
animal], and investigate … the practical and political mystery of separation … It is more urgent to work on these divisions, to ask in what way –
within man – has man been separated from non-man … than it is to take positions on the great issues, on so-called human rights and values …
(Agamben, 2004, 16). The
hidden premise is evidently the ultra-idealistic idea that : iii. Politics, or at least what is of
significance in political life, is
determined in advance by the framing ontologico-philosophical categories that
would delimit the political realm. In the most open variants of this position, Agamben strays very close to what could be termed a
‘political Platonism’. By Platonism, we mean here that lineage of Western thought that accords un-tethered priority to theoria over praxis or
else – as in Agamben’s type of case – simply forgets the theoretico-practical difference, by directly collapsing praxis into theoria. The
false
conclusion, pleasing only to theoreticians, is that true theoria would itself be equated with progressive
political action. Does Agamben really sponsor such a Platonism? To answer, we can consider how in
Means Without Ends, Agamben invokes the idea of a political ‘form-of-life’ which would lie, as we now know,
beyond all Law and its founding violence (Agamben, 2000, 3–12). What does this ‘form-of-life’ involve? Disappointingly for the practically
oriented critical theorist, Agamben explains that it involves neither action nor considerations of any higher
justice. No: it involves ‘thought’: I call thought the nexus that constitutes the forms of life in an inseparable context as form-of-life … an
experimentum that has as its object the potential character of life and of human intelligence. To think does not mean merely to be effected by
this or that thing, but rather … to be affected by one’s own receptiveness and to experience in each and every thing that is thought a pure
power of thinking (Agamben, 2000, 9).16 However unencouraging or simply opaque this reads, Agamben’s recourse to Heidegger in The Open (see I) indicates,
Agamben’s Platonism does need to be situated in its specific modern philosophical heritage. In particular, it cannot escape the reader that the characteristic form of argumentation Agamben
proffers us in all his texts is transcendental in the technical sense this term acquired after Kant’s critical philosophy. Whether he is analyzing how words refer to things17 , the distinction
between human and animal, or – as in Homo Sacer – the relations between law and life, Agamben’s aim is always the disclosure of the condition[s] of possibility of the phenomena or
‘separations’ in question. We saw in Part I above, for instance, how Agamben contends in The Open that the Western distinction between man and animal has been framed by way of
‘deciding’ on an exceptional liminal figure. We now need to qualify that, for Agamben, this ‘decision’ is a transcendental datum. Agamben’s claim is that it made possible the West’s succeeding
understandings of how human beings can be speaking and also living animals. In other words, the form of Agamben’s argument in The Open replicates that of Agamben’s earlier treatments of
the relation between language and being in Language and Death – where indexicals and the voice are what make possible language’s ability to refer – and also of the political realm, wherein
Carl Schmitt’s theological conception of the ‘sovereign … decision on the state of exception’ (cf. Agamben, 2005b, ch.1) is elevated to what trans-historically makes possible: … the creation and
definition of the very space in which the juridico-political order can have validity … the fundamental localization (ortung) which …makes the validity of the juridical order possible (Agamben,
1998, 19 (my italics)). So Agamben’s critical descriptive analyses of existing phenomena are avowedly transcendental in their logic and their intent. Our principal concern, by contrast, is with
his ‘positive’ political statements. What of these?, the supporter of Agamben might still rejoin with justice. Do they not have a different argumentative form? And how might this form relate to
the extra-political messianism into which he is drawn? To answer, let us now consider the two chapters (3 and 4) in Homo Sacer in which Agamben comes closest to an identifiable, political

This distinction is central to

prescription: i. chapter 3 of Homo Sacer opens by addressing the distinction between constituting and constituted political power.

Schmitt’s 1921 Die Diktator and his 1928 Verfassungslehre. In a way that literally paraphrases Schmitt’s
reactionary critique of legal positivism and / as ‘parliamentarianism’, Agamben complains that today
‘the general tendency’ in the liberal West is ‘to regulate everything by means of rules’. Against the
background of these claims, Agamben turns with praise to Negri’s 1992 work, Constituting Power. Negri’s
text, Agamben argues, interrupts today’s insipid liberal consensus. Against the grain, Il Potere Constituente: …
undertakes to show the irreducibility of constituting power (defined as ‘the praxis of a constituting act, renewed in freedom, organized in the
context of a free praxis’) to every constituted [already established, legalized] power ... (Agamben, 1998,.43). Like Benjamin, whose ‘Critique of
Violence’ aims at conceiving a ‘pure’ violence outside of the horizon of law-preserving or law-constituting violence (cf. Agamben, 2005b, ch. 3),
Negri’s aim is to conceive of a constituting power ‘that cannot lose its [creative or constituting] characteristic in creating’. (at Agamben, 1998,
43) The problem is that Agamben has to confess in Homo Sacer that he cannot see that Negri succeeds in
this attempt. Negri does not, in Agamben’s words: … find any criterion, in his wide analysis of the
historical phenomenon of constituting power, by which to isolate constituting from sovereign power
(Agamben, 1998, 43).18 Why then does Agamben turn to Negri here? The strength of Negri’s book, Agamben
now qualifies, ‘lies elsewhere’ than in its analysis of the categories of constituted and constituting
political powers. Where does this different significance lie? Here, Agamben says without blinking, ‘the problem is … moved from political
philosophy to first philosophy’. (Agamben, 1998, 44) Negri allegedly opens up a theoretical perspective given which constituting power, despite
appearances and history, ‘ceases to be strictly a political category and necessarily presents itself as a category of ontology’. (Agamben, 1998,
44) In order to weigh Negri’s notion of constituting power, Agamben contends, we need to recur to
Aristotle – not however to the Politics or Ethics, but to Book Theta of the Metaphysics concerning the categories of potentiality (dynamis)
and actuality (energeia). In this way, Agamben’s analysis of constituting power in Homo Sacer issues directly into
ontology, and finds its messianic pitch there: Only an entire new conjunction of possibility and reality,
contingency and necessity, and the other pathe tou ontas will make it possible to cut the knot that
binds sovereignty to constituting power (Agamben, 1998, 44). Book Theta of the Metaphysics stands in unlikely opposition to
‘those politicians today who want to reduce all constituting power to constituted power’, for Agamben (44). It does so as it allegedly
allows us to glimpse the possibility that dynamis can be thought ‘by itself’, without relation to the
energeia (actuality) we might have assumed it was there to actualize . Just as a tradie will keep his ability to ply his
trade if he is retrenched, down-sized or downs tools (cf. Franchi, 2004, 36–37), so Agamben specifies: … if potentiality is to have its own
consistency and not always disappear immediately into actuality, it is necessary that potentiality be able not to pass over into actuality, that
potentiality constitutively be the potentiality not to … do or be… (Agamben, 1998, 45). ii. chapter 4 of Homo Sacer (‘The Form of Law’) sets out
from an analysis of the comportment of Kafka’s ‘man from the country’ in the famous parable of the door of the law. Within
the
contemporary period wherein Agamben has told us that the state of exception has become the norm,
so that all today’s laws are allegedly ‘in force without significance’, the enigmatic passivity of the man in
Kafka’s fable is read by Agamben as an eminent instance of a new, ‘passive politics’. In his assessment, Kafka’s
unlikely political hero undertakes ‘nothing other than a complicated and patient strategy to have the door closed in order to interrupt the law’s
being in force without significance’ (Agamben, 1998, 55). In
what would this passive and patient politics consist? Again it
is difficult to say. For in answering, Agamben almost instantly reconfigures his analysis of the man at the
door around an ontological inquiry (firstly) into the meaning of Jean-Luc Nancy’s notion of ‘abandonment’
which in its turn issues (secondly) into the ruminations of the later Heidegger. The State of Exception
controversially asserts that Benjamin’s ‘pure violence’ – the ‘extreme ‘thing’ of politics’ – is the
‘counterpart’ to Heidegger’s Being (Agamben, 2005b, 59–60). In similar ontological clip, chapter 4 of Homo
Sacer remarkably announces the ‘political’ importance of rethinking the relation of Law to life through
Heidegger’s thought of ontological difference . According to later Heidegger, readers will recall, Sein is not an entity. This is
because it is the condition for the possibility of any such entities intelligibly appearing to us. In giving seindes over to presence, Being ‘itself’ as it
were withdraws, abandons or dissimilates itself behind what it makes possible. If this much is well and good, less immediately clear is what any
of this could have to do with the enigmatic praxis of Kafka’s man from the country. Agamben
is once again clear. The bridge
that would span the apparent gulf between fundamental ontology and a reflection on the (non-)relation
of subjects to sovereignty and law is, he argues, to be located directly on the side of ontology: If Being in
this sense is nothing other than Being in the ban of being, then [sic.] the ontological structure of
sovereignty … fully reveals its paradox… it is necessary to remain open to the idea that the relation of abandonment is not a
relation … [what is required is] nothing less than an attempt to think the politico-social factum no longer in the form of a relation ... (Agamben,
1998, 60). Once
again, that is, politics is abandoned in a philosophical analysis whose logics explicitly
point away from the political realm to a reflection on the transcendental conditions for any such
realm.

III. OVERCOMING HEIDEGGERIANISM: OR INTERRUPTING THE ONTOLOGICO-MESSIANIC MACHINE

The point of our critique of Agamben, like any philosophical critique, is first of all to contest the
prejudice that what Agamben says is true by virtue of the fact that it is he who has said it, and to
question whether Agamben instead has discernibly said it because it is true and capable of being
defended by way of convincing justificatory logoi (cf. Plato, Euth., 10c ff.). In one sense, then, our critique is a very
strong one indeed. For, as per II, what seems to us to be ‘worthy of thought’ if we are to ‘interrupt’ what
might be termed the contemporary ‘ontologico-messianic’ machine as Agamben refigures it, is the very
type of claim Agamben proffers us concerning the political phenomena (law, sovereignty, power …) he
addresses in Homo Sacer and elsewhere, and which under-girds the messianism of The Open, Coming
Community and Time That Remains. Can Agamben, or anyone else, hope to say anything meaningful at
all about what occurs within the political realm, or about the generic difference of political praxis from
art, philosophy, economics or prophecy, given the very logic – which as we saw is always post-
Heideggerian or transcendental-ontological – of his analyses? Certainly, we have seen in I and II that if we
are to judge the tree of Agamben’s political knowledge by the fruits it would provide us, these fruits
seem to fall ‘outside’ the polis, if not outside of Being as we know it (Agamben, 2004, 89–92). If, by reading
Agamben, we were – for instance – to take up the ‘urgent’ tasks of thinking our animality as the
undisconcealedness at the heart of our dasein, or of reconsidering the ‘socio-political factum’ as a non-
relation, what would the political result of these apparently theoretical operations be? Would one, a
few, many, or all have to ascend to this messianic ‘experience’ of ‘thought’ for the messianic time to
arrive? Is this a version of the messianism of Psalm 95 that if all the nation of Israel were to
simultaneously repent the messiah will come? (cf. Scholem, 1971, 11). Or would even this ‘action’ be, falsely,

to ‘press for the end’, so that an Agambenian gelassenheit is the most we might
do to prepare the place where the parousia or rapture might come, like a thief in the night? Would the
arrival of the messianic time necessarily involve a change in public – perhaps educational? – institutions
and policies, and could its inspiration be used to frame praxis in any determinate way?19 Finally, if the
coming community would live beyond law, ‘ordered exclusively for the full enjoyment of worldly life’
could we in any way be sure it would not quickly degenerate into, for example, the unhappy chaos Plato for
example reports in the 7th Letter as the result of the Sicilians’ anomic pursuit of the ‘happy life’? Now: the
bemused silence with which any Agambenian thought must meet such political considerations , I would say,
is of the essence here. For the legitimate defense one could indeed make for Agamben at this point –
viz. that such concerns are simply beneath the concern of philosophy as Agamben practices it – is exactly
the point. As Agamben’s own arch- Platonic disdain towards today’s ‘mass democracy’ can be read as indicating, the political realm
is not philosophic or scientific in anything like the ancient or modern senses of epistem e. Grounded, as the
Nichomachean Ethics VI argues, in phronetic deliberations concerning that sphere of things that can be transformed by coordinated human
praxis, the political realm is, on one side, a much simpler and more public thing than the mathematical or ontological forms of inquiry beloved
of philosophers. Equally, however, because its issues are always changing, involve a plurality of subjects, and
hence can never be exhaustively ‘thought’ a priori, the political realm is also irreducibly more complex
than what philosophers, including Agamben, typically deem ‘worthy of thought’. Western political
philosophy as we know it, we should recall, originated in Socrates’ critique of his own earlier purely ontological
inquiries. The Xenophontic Socrates compares the pre-Socratic physikoi to madmen, noting in almost proto-Kantian terms that, without
much hope of resolution: … some of them believe that being is only one and others believe that there are infinitely many beings: some believe
that all things are always in motion and others believe that nothing is always in motion; some believe that all things come into being and perish,
others believe that nothing ever comes into being or perishes (Xenephon, Mem., I.1.11–13). The point here is not to construct an argument by
drawing on the auctoritas granted by recourse to ancient texts. The point is to contest whether any such comparable ‘pre-Socratic’ oppositions
as that between potentiality versus actuality, relation versus non-relation, or beings versus Being which Agamben tells us we must rethink as a
political task20 can inform political theory and praxis at all, short of their being supplemented by wholly other, and more generically political,
considerations. This is not to deny that critical political theory remains a theoretical endeavor. As such, it is something which, if it is to have any
specific force or significance, must lay claim to truths political subjects might not have been able to discover or ‘ascend to’ in their everyday
lives. As we saw in II, the issue is that the very type of truth Agamben’s analyses lay claim to showing us are
the structuring conditions for the possibility of the phenomena we encounter in political life . Now: compared
to the eidei Plato claimed philosophers’ ‘rough ascent’ could access, or the teloi Aristotle claimed inhered in ta physika and ta pragmata, the
issue is that no transcendental analysis as such can say anything either about the actuality of the
thing(s) or event(s) whose conditions of possibility it uncovers, nor about their desirability as teloi for
ethico-political action(s). Notably, something like this very distinction was indeed at the very heart of
Socrates’ critique of the physikoi in Phaedo, where he describes his turn towards political matters. ‘It
may be said … that without bones and muscles and the other parts of the body I cannot execute my
purposes’, Socrates concedes to Anaxagoras: But to say that I do as I do because of them, and that this is the way in which mind acts, and
not from the choice of the best, is a very careless and idle mode of speaking. I wonder that they cannot distinguish the cause from the
condition, which the many, feeling about in the dark, are always mistaking and misnaming …’ (Plato, Pha., 99a-b: italics mine). As Žižek would
pronounce it: faced by the political aporia of contemporary critical messianism, perhaps the time has come to cease trying to think ‘the
political’ by way of forms of analysis generic to ontology or prima philosophia, but – after Hannah Arendt and others – to re-situate
philosophical reflection itself as a bios undertaken within the polis. One fruit of this reflective move would be to reconsider what might be
termed the ‘theoretical politics’ of the form of transcendental analysis inaugurated by Kant in the time of Newtonian physics, and carried
forward today by Agamben and others. Kant’s inauguration of the method of transcendental inquiry certainly secured a continuing place and
dignity for philosophy in the age of modern science, since this science truly cannot explain its own conditions of possibility on its own terms.
Nevertheless, one cost of securing this domain of the ‘synthetic a priori’ is that Kantian philosophy, by doing this, also ‘abandoned’ the capacity
to judge philosophically concerning the political realm, since this realm can only show up for it as one part of the ‘empirical’ world which it is
the work of transcendental analysis to trace back to its conditions of possibility. There is, as Husserl would have said it, simply a veritable ‘abyss’
that separates what transcendental philosophy can disclose and political judgment. Recall, for instance, that one of the most deeply convincing
features of Heidegger’s disclosure of the existentialia structuring human ‘dasein’ in Being and Time is exactly that these structures
– as Agamben’s emphasis that ‘potentiality constitutively is the potentiality not to be’ (Agamben, 1998, 45)
would only hypostasize or mystify – make possible all of the possible existentielle behaviors of
individuals, up to and including what Heidegger calls ‘deficient’ modes – so that (eg) even being alone
remains a mode of mitsein (beingwith-others) (Heidegger, 1962, #26). If we nevertheless do try, with Agamben
and others, to ‘think’ an ethics or a politics on the basis of transcendental argumentation alone, only a very
limited horizon of potentialities – logically – remain available to us. On the one hand, like the young Heidegger, one
can try to derive what Hegel already critiqued as a formalistic ethics of ‘conscience’. For variants of this position, what is
decisive will not be what a subject empirically does, but her/his reflective comportment towards this action.
What matters, in Heidegger’s precise terminology, is whether the individual or collective in question
‘owns up’ to what is their ‘ownmost’ (eigentlich): namely their own ultimately groundless responsibility for
the projects they ek-statically choose. Alternately – and here we rejoin Agamben, and his post-kabalisic
messianism – since a transcendental analytic uncovers the conditions for the possibility of the entire
horizon of possibilities delimiting the subjects’ experience, it is open to us to conceive an ‘ethics’ which
would single out only those actions or interventions from somewhere ‘wholly other’ which would
engender ‘an entire new conjunction of possibility and reality’, as Agamben puts it very precisely in
Homo Sacer. (Agamben 1998, 44; cf. (eg) Žižek, 1992: ch.2; Žižek, 2002, ch. 5).21 As with Kant’s inauguration of transcendental logic in The
Critique of Reason, this is not to say that there are not certain ‘political’ gains that accrue to the theorist who takes this ontologicomessianic
turn today. In ‘Towards an Understanding of the Messianic Idea in Judaism’, Scholem at times echoes the Hegelian and Nietzschean critiques of
religious other-worldliness. Scholem notes that, historically, utopian
and ontological variants of the messianic idea like
to that which Agamben propounds typically emerge in times of crisis, like the destruction of the second
temple, or the 1492 Spanish expulsion. There is an historically verifiable correlation between the
attraction of this type of thought, Scholem contends, and the loss of a sense of stable historical or political
reality (cf. Scholem 1971, 35): The stronger the loss of historical reality in Judaism during the turmoil
surrounding the destruction of the second temple and of the ancient world, the more intensive became
consciousness of the cryptic character and mystery of the Messianic message … Jewish messianism is in its
origins and by its nature – this cannot be sufficiently emphasized – a theory of catastrophe … (Scholem, 1971,
7). Similarly, in the wake of the discrediting of political Marxism, the global ascendancy of neoliberalism,
and the concomitant loss of any historical addressee for critical theory, the gains of post-Marxian
thinkers regressing to messianism of the Agambenian type ‘… which in times of darkness …
counterpoises the fulfilled image of wholeness to the piecemeal, wretched reality …’ (Scholem, 1971, 14) are
evident. The political question I would ask to close is whether this ‘gain’ is worth the costs with which it
comes encumbered. The post-Marxian left’s embrace of Agamben’s messianism, I have contended, is more
comparable to one of Freud’s famous analogues to illustrate the type of paltry ‘gain’ neurotics glean
from their illness, and which informs their resistance to analysis – the [person] man who is grateful for his
disabilities because of the pension he will now receive, overlooking in this way that from now on, [they] he will
also be unable to walk ... . Agamben, for his part, frankly confirms Scholem’s type of diagnosis in a remarkable and
affecting passage, written in the first person, towards the close of Means Without Ends: His thought,
Agamben confesses ‘ – why not admit it?’ – arises our of his sense of ‘absolute impotence, bumping
against solitude and speechlessness, over and over again precisely there where we were expecting
company and words’ (Agamben, 2000, 139) Nevertheless, Agamben confides: I would not feel up to forgoing this
indistinction of public and private, of biological body and body politic, of zoe and bios, for any reason
whatsoever. It is here I must find my space once again – here or nowhere else . Only a politics that starts from such
an awareness can interest me (Agamben, 2000, 139). If today’s left is to [take action] walk again, let alone robustly
confront the rising tide of reaction, and the environmental crises and humanitarian consequences
which will surely shape much of the next century, the one messianic statement with which we might
greet such a confession is surely this: let the dead bury the dead.

Messianism is an ethically bankrupt strategy and shuts off political action;

consequentialism is a preferable frame for response
Darling 9, School of Geography and Geosciences, University of St Andrews (Jonathan Darling, 2009,
“Becoming bare life: asylum, hospitality, and the politics of encampment,” Environment and Planning D:
Society and Space Volume 27, pages 649-665)

Reading the Gateway Protection Programme through a

biopolitical lens allows us to suggest that this scheme acts as
the ‘human face’ of those divisions which have as their conclusion the destitution and abjection of
others deemed to be `unworthy' of protection and humanity. This is certainly an unforgiving account of
the work of the UNHCR and the UK government, one which argues for the `nonpolitical' pretensions of such schemes, and their concurrent
moralisation of the political,(4) to be exposed for what they represent, a smokescreen for the perpetuation of repressive asylum policies of
distinction, detention, deportation, and, all too often, destitution. However, it
is in responding to such a scheme and such
decisions that Agamben fails us, for his response would be, as I have suggested, to annul such a programme,
as he “rejects any notion of immanent resistance and argues instead for the necessity of a messianic
event” (Mills, 2004b, paragraph 11). Zíiz ek (2008, pages 337 ^ 338) has recently characterised such a response as an
“acceptance of the futility of all struggle, since the framework is today all-encompassing, coinciding with its
opposite (the logic of concentration camps, the permanent state of emergency), so nothing can really be done, one can only
wait for an outburst of ‘divine violence’.'” Agamben's response might, thus, be seen as tied into his account of biopolitics as a
binding relation, and his concurrent reduction of power to that of the sovereign and the state. As Papastergiadis (2006, page 439) notes,
Agamben's analysis overlooks the microforms of resistance that occur within and across different
states, as forms of power, and politics, not fully reducible to the decisions of a sovereign are played
out. In rejecting these, Agamben effectively forecloses any notion of a power which resists the
sovereign, and resists a different vision of the decision.

Challenging decisions, interrogating hospitality

However, if Agamben's account of biopolitics reduces power to the power of the sovereign, it also presents the decision as the central element
of such power, and, as such, we might look to the reading of the decision offered through Derrida, of a decision held in relation
to a messianic promise of justice and unconditional hospitality, as presenting an alternative means of
approaching the work of the Gateway Programme. Schemes such as the Gateway Programme are undoubtedly flawed; they do
draw division and force hard choices to be made, yet, in a sense, this is part of what makes them political.
The fundamental need to decide, to make choices, is one which politics is mired in as Derrida (2002) has
suggested. If we reject all such schemes as simply recreating the divisions of biopower, of simply reclassifying
those who are deemed to be ‘bare life’, then we risk not allowing space for any future, possible, and
potentially alternative political formations to emerge and be supported. What we are left with is a logic of
unconditional hospitality itself, but one which flatly rejects a recourse to decision, distinction, and the exception, one which shuts the
door on a truly political response. Thus, I would advocate that what is demanded in the present—and what Gateway
gestures towards, albeit problematically—is a politics of decision, of the best possible conditions , which takes as its
starting point a reference to an ethos of the unconditional. In a language of hospitality, the response of the Gateway Programme might
be viewed as an attempt, albeit failingly at times, to “render [hospitable engagement] as effective as possible, to
invent the best arrangements... the most just legislation'” (Derrida, 2005, page 6). For Derrida, hospitality will
never evade its conditional nature, yet this is no reason to stop efforts to become hospitable; rather,
Derrida takes the relationship which such impossibility recalls as a driving force behind attempts to become hospitable. Thus, “ it is
necessary to deduce a politics and a law from ethics” (1999, page 115). What such a deduction gestures
towards is a means to “determine the ‘better’ or the ‘less bad’” (Keating, 2004, paragraph 36); thus, those `best
arrangements' which Derrida (2005) envisions are by necessity produced precisely by this relation to an unconditional account of hospitality. As
Derrida (2000b, page 79) argues, ``conditional laws of hospitality would cease to be laws of hospitality if they were not guided, given
inspiration, given aspiration, required, even by the law of unconditional hospitality.'' As such, the decisions of the Gateway Programme,
decisions of and about hospitality, should not be dismissed out of hand as exclusionary gestures, but,
rather, should be seen for what they are, limited, conditional, and problematic moments of sovereign
distinction. However, as such, these decisions can be approached politically from the kind of stance Derrida
advocates, one in which that messianic promise of an unconditional hospitality interrogates the finite and
contestable decisions of the present. The Gateway Programme is imperfect, divisive, and forces
distinctions, yet these are the inevitable consequences of attempting to negotiate the hiatus between
hospitality as an ethical injunction and hospitality as a practical, political response. What I have attempted to
suggest through the example of the Gateway Protection Programme, then, is how the different readings of the decision offered by Agamben
and Derrida in response to contemporary biopolitics lead us to differing political modes of response. The Gateway Programme straddles this
divide; it presents at once a biopolitical gesture of sovereign decision making which upholds the current asylum system of the UK, and yet also
offers a sense of conditional and limited hospitality to those accepted as Gateway refugees. In approaching the decisions of the Gateway
Programme, however, I would argue that only Derrida's account of a
politics of the need to decide, here and now, offers
a viable means of responding to such distinction. Derrida (2003, page 133) argues that, in responding to the other, we must
``be dutiful beyond duty, we must go beyond the law, tolerance, conditional hospitality, economy, and so on. But to go beyond does not mean
to discredit that which we exceed.'' Thus, we
must challenge the divisions of such resettlement schemes; we must
challenge the decisions of biopower in the name of a messianic sense of justice forever ‘to come’ and
always hope to go beyond such schemes and political programmes alone. However, just as crucially,
this does not mean that we lose sight of ‘that which we exceed’, and, as such, we should not forget that
we do have to make decisions, and that the Gateway Programme, despite its many failings, has aided the
lives of many refugees. As such, we might begin to consider a response to the biopolitics of asylum through what Critchley
(2007) terms an ‘interstitial distance’ from the state, a politics of contestation and challenge which works
“within, across, above, beneath, and within the territory of the democratic state, not in the vain hope
of achieving some sort of ‘society without the state’, but rather as providing constant critical pressure
upon the state, a pressure of emancipatory intent aiming at its infinite amelioration, the endless
betterment of actually existing democracy'' (2000, page 464).

Conclusion

In this paper, I have sought to examine the utility of Agamben's theorisation of the homo sacer in apprehending the socially and
politically liminal status of the modernday asylum seeker. I have illustrated the ways in which such a positioning may be a useful lens through
which to critique the exclusion of the asylum seeker from the political sphere and the rise of an ethics-orientated humanitarian politics (Ticktin,
2006). However, I have also suggested that such a lens risks a denial of the potential for political and ethical practices
which are based in a biopolitical sensibility of decision and distinction. This risk emerges from Agamben's concern to
move beyond the decisionism of the ban in its entirety, and, in response, I have argued that what the position of bare life today
calls forth is a demand to work on such acts of decision from the foundation of an ethical and
hospitable disposition which might inform such process of political decision. What this might engender, then, is a
bicameral appreciation of an ethos of the hospitable, one which has two distinct yet fundamentally interwoven strands. The first of these is that
hospitable ethos which the `assumption of bare life' might engender: the developing of a sense of the hospitable in everyday acts and
environments and the meeting of each new and contingent encounter with such a spirit of open questioning in mind. For the citizen, this entails
the need to respond to the ethical demands placed upon us by our radical relationality. The need to ``call into question the very freedom we
enjoy precisely as we deny this freedom to refugees and asylum seekers'' (Pugliese, 2002, paragraph 3). Such an orientation presents a
``reticent hospitality of people who may be passing by. This comes not from a sense of tolerance, of being securely in place to offer hospitality...
. It is not a call to `at homeness' but a constantly negotiated refuge'' (Schlunke, 2002, paragraph 23). The second strand is to recognise that
such an ethical orientation alone is not enough to address the issues that the presence of asylum
seekers and refugees may raise in our biopolitical present. To dismiss the political advances that have
been tentatively stepped towards, as Agamben would have us do, would be to miss a very real
political opportunity to herald future possibilities. The critical political work that needs to be done
here is not only to continually question the imperfections of current political formations and
approaches to the refugee, but also to support those measures and ideas which actively seek to
improve this situation; to simply dismiss such work seems to play into the hands of those who would
wish these innovations did not exist in the first place, and relegates argument to a purely ethical level
in which a hospitable disposition is cultivated towards difference and it is hoped that this alone is
enough (see Badiou, 2000). Rather, the second strand I would wish to advocate would be to take this hospitable disposition as
the fundamental starting point for creating political responses to the refugee which seek to open
spaces for recognition and accommodation in every sense. As Diken and Laustsen (2005, page 192) conclude, ethics
``urges risk taking. It is in this effort that we discover that the camp is not just a matter of walls and fences but also of
doors and windows'', and we must work to focus precisely on these openings and thresholds as spaces
of potential hospitality. As we have seen through the Gateway Programme, such responses are never perfect and
embody a range of difficulties, from the privileging of the most `worthy' few to the danger of misanthropically discharging our sense
of `ethical duty' all too easily in a yearly fix of benevolence. However, it is precisely this scheme's imperfect nature which
makes it a good example; its conditional and divisive logic exemplifies that conditionality which Derrida
has argued forms the core of relations of hospitality and forms the basis for our political demand to
continually question such responses in the name of a hospitable ideal. Yet, at the same time, it impresses
upon us an urgency within politics, a demand to take the decisions of the moment in a responsible
fashion, in a relation to a sense of justice, for, as Derrida (2001b, page 56) argues of the political decision, here ``[o]ne is never sure
of making the just choice; one never knows, one will never know with what is called knowledge ... . It is here that
responsibilities are to be re-evaluated at each moment, according to concrete situations, that is to say,
those that do not wait, those that do not give us time for infinite deliberation .''
 2AC — AT: Emancipation
The alt’s uncritical embrace of difference causes extinction — it must be tempered
dialectically with community
Hytten 94, Education at UNCG (Kathy Hyyen, 11-13-1994, “Pragmatism, Postmodernism and Education
Presented at the Annual Meeting of the American Educational Studies Association,” Chapel Hill, North
Carolina)

Finally, pragmatism parallels postmodernism in the celebration of difference and otherness. The pragmatist
conception of democracy is premised on the value of differences and the enrichment possibilities that different
understandings, viewpoints, and perspectives bring to society. Yet unlike postmodernists, pragmatists refrain from uncritical
valorization of difference, and instead maintain that there must be dialectical relationship between
difference and notions of commonalty and community which allow people, as Bernstein asserts, to work "toward
a type of society in which we can at once respect and even celebrate differences and plurality but always
strive to understand and seek a common ground with what is other and different " (p. 521). This dialectical
relationship distinguishes postmodern and pragmatist conceptions of difference. For pragmatists, differences are viewed not as
divisive obstacles but as valuable resources in adding to the development and the enrichment of the whole. They
would agree with Ellsworth that "realizing that there are partial narratives that some social groups or cultures have
and others can never know, but that are necessary to human survival, is a condition to embrace and to
use as an opportunity to build a kind of social and educational interdependency that recognizes
differences as different strengths and as forces for change" (p. 319).(17-18)
 2AC — Alternative
Governmental politics facilitates and compliments movements — outright rejection
only works for the privileged
Srnicek & Williams 15, PhD in IR at LSE; PhD student at the University of East London, presently at
work on a thesis entitled Hegemony and Complexity (Nick Srnicek; Alex Williams, 2015, “Inventing the
Future: Postcapitalism and a World Without Work,” Kindle Book)

Lastly, the
state remains a site of struggle, and political parties will have a role in any ecology of
organisations – particularly if the traditional social democratic parties continue to collapse and enable a new generation of parties to
emerge. Ensuring a post-work society for all will require more than just individual workplaces; it demands success at the level of the state as
well. 57 While parties are frequently denounced for their cynical consent to electoralism and the limits posed by international capital, this
changes within an ecology of organisations. Rather than making them the impossible vehicle of revolutionary
desires – associated with the hopeless prospect of ‘voting in’ postcapitalism – they can instead take on the more realistic
task of forming the ‘tip of the iceberg’ in terms of political pressure, as well as developing the ability to bring
together a widely varied constituency. 58 The state can complement politics on the street and in the
workplace, just as the latter two can broaden the options for parties. The avoidance of the state – common to so many
folk-political approaches – is a mistake. Mass movements and parties should be seen as tools of the
same populist movement, each capable of achieving different things. At their most general level, parties can integrate various
tendencies within a social movement – from reformist to revolutionary – into a common project. While international capital and the inter-state
system make radical change virtually impossible from within the state, there are still basic and important policy choices to
be made about austerity, housing support, climate change, childcare, demilitarisation of the police and
abortion rights. Simply to reject parliamentary politics is to ignore the real advances these policies can
make. It takes quite a privileged position to not care about minimum wage regulations, immigration
laws, changes to legal support or rulings on abortion. At their best, electoral entities can act as a disruptive
force (stalling, publicising controversies, articulating popular outrage), and even act as a progressive force in some situations. This
does not imply that social movements should simply be turned into the vote-mobilising wings of political parties. The relationship between
parties and social movements should extend far beyond this, into a process of two-way communication. On the one hand, financial support can
be given from the party to community initiatives, and various policies – such as laws on public protest – can be amended to
facilitate the activities of social movements. In Venezuela, for instance, the state supported the creation of neighbourhood
communes as a way to embed socialism in everyday practices. 59 On the other hand, resources for new parties can be mobilised collectively –
Podemos, for example, got started through crowd-funding € 150,000 – and the vitality of the party can be maintained through constant
institutionalised negotiations between local movements, party members and central party structures. 60 Podemos, for instance, has aimed to
build mechanisms for popular governance while also seeking a way into established institutions. 61 It is a multi-pronged approach to social
change and offers greater potential for real transformation than either option on its own. 62 Meanwhile, Brazil’s Partido dos Trabalhadores has
maintained openness to multiple groups (liberation theology groups, peasant movements) while still organising around an essentially union-
based core. In the words of one researcher, ‘this combination of grassroots and vanguard constituted a Leninism that was not very Leninist’. 63
What all these experiences show, however, is the mass mobilisation of the people is necessary in order to transform the state into a meaningful
tool of their interests, and to overcome the blunt division between the power of movements and the power of the state. The aim must
be to avoid both ‘the tendency to fetishise the state , official power, and its institutions and the opposing tendency
to fetishise antipower’. 64 In a context of widespread discontent with the political system, this remains
possible – though, again, the importance of having a discursive framework in place to channel this discontent is obvious. In the end,
parties still hold significant political power, and the struggle over their future should certainly not be
abandoned to reactionary forces. It should be clear how far away we now are from the folk-political fetishism of localism,
horizontalism and direct democracy. An ecology of organisations does not deny that such organisational forms may have a role, but it rejects
the idea that they are sufficient. This
is doubly true for a counter-hegemonic project that requires the toppling of
neoliberal common sense. What we are calling for, therefore, is a functional complementarity between
organisations, rather than the fetishising of specific organisations or organisational forms.
 2AC — Agamben Alt
Totalization DA — the alt is reductive and abstracts politics from movements;
ontological frames are disproven by status quo resistance
Robinson 11, political theorist and activist based in the UK. He is the co-author (with Athina
Karatzogianni) of Power, Resistance and Conflict in the Contemporary World: Social Movements,
Networks and Hierarchies, recently published a series of books on Homi Bhabha (Andrew Robinson, 1-
21-2011, "In Theory Giorgio Agamben: destroying sovereignty," Ceasefire Magazine,
https://ceasefiremagazine.co.uk/in-theory-giorgio-agamben-destroying-sovereignty/)

My main concern with Agamben’s theory arises from some degree of scepticism regarding the
assumption that political issues have an ontological status . Agamben’s work has become strongly
resonant and fashionable for a very clear reason: he is talking about issues which speak to the problems
of the moment, which seem to communicate directly with issues such as Guantanamo Bay, ‘anti-terror’
laws, attacks on civil liberties, and the global ‘war on terror’. It is a good thing that theorists are giving serious attention
to these issues, and the social logics of states are clearly tied-up in them. The difficulty is the question of whether these
issues really operate on the deep ontological or structural level which Agamben assumes. Political
events are taken to express ontological rather than contingent phenomena (or more generously to
Agamben, perhaps the contingencies reveal ever-present potentialities ). Sovereignty has always been
what it is (i.e. Auschwitz), but it has unfolded cumulatively according to its own logic. But can sovereignty ‘unfold’ of
its own accord, as if the entire political context derives from it? I feel there is a fundamental problem with Agamben’s
work, and that of several other continental theorists, which stems from an unduly reductive, single- (or at
most double-)agent account of social forces, in which sovereignty is treated as a determining instance
from which the rest of modern social life follows (akin to the role of capitalism in Marxist theory, but with capitalism replaced
by sovereignty). Agamben explains the current situation mainly through the unfolding of a single dynamic,
that of sovereignty. This underestimates the extent to which the state’s unfolding is restricted and
inflected by other powerful social forces. For instance, there are cases where state power is constrained
from the outside by the power of social movements (such as various discussions of society against the state,
from Clastres to works on Latin American social movements ), or by forces such as transnational capital (as
much of the scholarship on globalisation argues); cases where the state is ‘in society’ and fuses with it, becoming at
least partly dependent on social movements , as discussed by comparativists such as Joel Migdal; and cases where a ‘historical
bloc’ of local class forces contributes to the formation and direction of the state, as in neo-Gramscian analysis. This doesn’t necessarily mean
that Agamben is wrong about sovereignty. The
fact that states are constrained by or even hybridised with other
social forces does not necessarily preclude them having their own logic or dynamic. To argue by analogy,
capitalists always seek to make profits, even if sometimes they have to rely on local kinship networks to secure profits, or pay off local leaders
to access resources. The profit motive is inherent to capitalist motivation, even when this motivation enters into hybrid combinations. Similarly,
it is quite plausible that Agamben’s account of sovereignty describes something inherent in the functioning of states. But nevertheless, the
question of whether, to what extent, and how the state is able to actualise sovereignty becomes dependent on its location among other social
forces. If it is suddenly acting more thoroughly on this logic, then it is quite possible that it has not simply evolved cumulatively, but has either
grown stronger relative to other forces, has ‘seceded’ from them and become unconcerned about its effects on them, or is benefiting from an
enabling context which lets it unfold its own dynamic in an unconstruained way. In other times and places, states
have either been
forced to permit or unable to prevent the expansion of rights such as habeas corpus. It is particularly
paradoxical that the state is acting in a more unconstrained way with regard to sovereignty at precisely
the moment when it has lost important powers to global capital. Is global capital actually permitting, or even
encouraging, the unfolding of sovereignty? Is sovereignty becoming more apparent because the cathartic outlet of interstate conflict has
declined? Are states acting up because they fear their own loss of power to transnational networks, from social movements to armed
opposition groups? Is the state becoming less afraid of powerful ‘included’ groups such as organised labour and the professions, which would
otherwise make it hesitant to risk deploying sovereignty? Is the discourse of sovereignty reappearing in force because the state needs to
redefine its own role to survive the decay of other narratives (such as the state-as-arbiter and the state-as-distributor)? Agamben’s
approach to politics is thoroughgoing in its cleaning-out of statist ways of thinking, and hence has much to offer. It does tend, however,
to be rather all-or-nothing. Agamben’s approach makes it very hard to make distinctions between
better and worse kinds of states, between greater and lesser degrees of recognition of civil liberties. It
makes it hard to think about creating resilience in social movements in the period before the state is
destroyed. Perhaps more thought needs to be given to the exact conditions in which states can be
forced not to declare exceptions, or in which states of exception can be contingently defeated (from the El
Alto ‘gas war’ to the Woomera protests). The state seeks to impose a logic of sovereignty, but this logic is often
contested by other social forces. While the elimination of sovereignty may well be the only way to destroy the conditions for future
genocides, social movements which do not yet have the power to shatter the state can nevertheless
undermine it, rendering its power increasingly limited, partial and conditional. Another problem is with the
view that resistance should come from the standpoint of bare life. I would suggest that it should , rather,
come from the standpoint of whatever-subjectivity as something which is at once ‘bare’ and self-
recognised, and which reconstitutes itself outside the statist frame . The idea of taking the standpoint of the most
excluded or oppressed, the “social symptom” in Zizek’s terms, is not unique to Agamben, and has a certain emotional pull. It is, indeed, at this
point that the oppressiveness of a particular system becomes most apparent. It is, however, not in the helpless abjection of homo sacer but in
the rejection of the state’s view of one’s status as (potentially or actually) valueless and insistence, against such a view, on self-valorisation. This
means that resistance can’t actually be expected from people reduced literally to the status of the so-called
musselmannen at Auschwitz. Part of the difficulty is that the group which is most oppressed and
despairing is also likely to be reduced to a condition of ‘learned helplessness’. On the other hand, inmates of
camps, even Nazi death camps, did resist, to the point of staging a mass uprising at Sobibor death camp
and in the Warsaw Ghetto. Authors such as Erving Goffman, Thomas Mathiesen, Michel Foucault and James Scott have shown how
people resist and recompose their subjectivities and social relations even in camp-like settings. Forms
of everyday resistance, spectacular protest (such as hunger strikes), and occasional uprisings can be observed
even in horrific places like Guantanamo Bay and Abu Ghraib. This resistance comes, however, not from the most
abject people, but from people who are resisting being reduced to this status. It comes, not from bare life,
but from a refusal to be reduced to bare life. It is thus not a passage through despair, but a way of
warding it off. The conditions for recomposing hope in desperate circumstances do not stem
automatically from despair, but rather, emerge from active practices of resistance and the
reconstruction of meaning. Agamben is thus right in starting from the standpoint of the excluded, but wrong in viewing abjection as a
correlate of (rather than an effect of state power on) this standpoint. Rather, transformation becomes possible through the conversion of
exclusion into autonomy, through the rejection and immanent overcoming of sovereignty.
 2AC- Foucault is Neoliberal

Their rejection of the welfare state is coopted by neoliberalism turns the k

Zamora 2014
12.15.2014 Daniel Zamora is a doctoral candidate in sociology at the Université Libre de Bruxelles
https://www.jacobinmag.com/2014/12/michel-foucault-responsibility-socialist/

The question of the welfare state’s role in a capitalist society is a complex one . Of course, depending on the
context, it can serve to contain social contestation, to limit movements of radical transformation, even to reproduce certain quite conservative
social structures (especially regarding race or gender roles). The
welfare state is obviously the result of a compromise
between social classes. It is not, therefore, a question of “stopping there,” but, on the contrary, of
understanding that the welfare state can be the point of departure for something new. My problem
with Michel Foucault, then, is not that he seeks to “move beyond” the welfare state , but that he actively
contributed to its destruction, and that he did so in a way that was entirely in step with the neoliberal
critiques of the moment. His objective was not to move towards “socialism,” but to be rid of it. But before discussing the issue of the
welfare state in the late 1970s and the role it might play in an emancipatory politics today, let’s return to some of these “good questions” that
Foucault was asking. Did Foucault Ask “Some of the Right Questions?" The first question about the welfare state posed by
Foucault concerned the “situations of dependency ” that it was said to cause. In his eyes, “on the one hand, we give people
more security, and on the other we increase their dependence.” Social security1 produces dependence? This critique is rather unexpected
coming from an author classified as “left-wing.” Yet this phrase is not an isolated statement. Thus, in a 1983 interview, Foucault says he is in
complete agreement with a journalist who states that there is a need today to “assert each person’s responsibility for their own choices” and to
move towards greater “accountability” (responsabilisation). In addition to the “dependency” it supposedly creates, Foucault believes that social
security ultimately serves mainly the affluent. Thus, in a 1976 interview, he invokes, again without much distancing, the classic neoliberal
argument according to which the welfare state actually amounts to a subsidy for the rich paid for by the poor, since it is often the rich who
make the most use of the services provided. As he explains, “the social transfers that were hoped for from the social security system do not
fulfill the expected function. . . . The richest continue to make far greater use of medical services than the poor. That’s the case today in France.
The result is that the smaller consumers, who are also the poorest, pay with their tax contributions for the overconsumption of the richest.”
This argument, largely developed by Milton Friedman in his little opus Free to Choose — which Foucault was surely aware of — basically
opposed any form of universal service financed by the public. According to Friedman, such a system always leads to “a transfer from the less
well-off to the better-off.” As the economist explains, although “the benefit schedule is biased in favor of persons with lower wages,” “children
from poor families tend to start work — and start paying employment taxes — at a relatively early age; children from higher income families at
a much later age. At the other end of the life cycle, persons with lower incomes on the average have a shorter life span than persons with
higher incomes. The net result is that the poor tend to pay taxes for more years and receive benefits for fewer years than the rich — all in the
name of helping the poor!” The final major “problem” emphasized by Foucault in regard to health care resides
in the “arbitrary” nature of the concept of a “right” to health, and its harmful effects on the system’s
ever-growing expenditures. Indeed, he says that since needs in the field of health care are neither
quantifiable nor limitable, it is “not possible to fix objectively a theoretical and practical threshold, valid
for all, on the basis of which it could be said that health needs have been entirely and definitively
satisfied.” Since our desires regarding health are all different, how ultimately could there be a universal “right” with respect to it? This
observation, reproducing the classic arguments of the opponents of public health systems, leads him to conclude that it is “clear that there is
hardly any sense in speaking of a ‘right to health.’” From there, he naturally proceeds to pose the question, “should a society seek to satisfy by
collective means the health needs of individuals? And can individuals legitimately demand the satisfaction of these needs?” And he goes on to
declare “that an affirmative response to this question would have no acceptable, or even imaginable, practical realization.” This
move is
very close to free-market liberal arguments against universal health care systems , which had been built
precisely on the basis of the notion of a universal “right” to health that could be determined objectively
for the entire population. Such a conception would be repudiated little by little in favor of the idea defended by Hayek that health care
is a consumption good like any other, and that it is the responsibility of each individual to “choose” to obtain care or not. Thus, as A.W. Gaffney
notes in his excellent article in Jacobin, for Hayek “one person might prefer paying rent to having a mammogram, while another might take a
needed heart surgery over a week on vacation.” As a result, “the idea that there is an “objectively” determinable standard of medical services
which can and ought to be provided for all, a conception which underlies the Beveridge scheme and the whole British National Health Service,
has no relation to reality.” In this sense, Hayek,just like Foucault, “disputes the very notion that there could exist
anything like a universal desire — much less a ‘right’ — to any social good, including health care.” To be
sure, Foucault takes care to explain immediately that he “ does not advocate, it goes without saying, some kind
of wild free market that would result in individual coverage for those who have the means and an
absence of coverage for others.” But it seems to him obvious, nevertheless, that it is “impossible, in any event, to let spending grow
under this formula at the pace of recent years.” Foucault, then, doesn’t advocate neoliberalism, but he adopts all of its
critiques of the welfare state. He attacks the supposed “dependency ” it produces, the very notion of
“rights,” and its negative effect on the poor. His objective is thus not to move towards a totally neoliberal society, but to incorporate within
the socialist corpus some of the decisive elements of the neoliberal critique of the state. It’s precisely in this sense that Colin Gordon sees him
as a sort of precursor to Blairism. This thesis is also illustrated by Foucault’s closeness to Pierre Rosanvallon, the French progenitor of the
“social-libéralisme” now dominant within the French Socialist Party. Moreover, it is in this light that we should understand Foucault’s support
for the anticommunist New Philosophers of the 1970s. As has been shown by Michael Scott Christofferson — to whom I am indebted — this
support was aimed equally against the Union of the Left and the whole ideology it represented. (The Union of the Left was the socialist-
communist electoral alliance initiated in the 1970s by French socialist leader François Mitterrand, marking a sharp left turn for the socialists.) To
my mind, Foucault was thus not asking the “right questions.” On the contrary, he popularized a good part of the neoliberal
common sense that constituted the theoretical basis of the war waged against the welfare state. This
common sense, far from being a secondary issue, represents in my view one of the principal obstacles to the institution
of far-reaching social policies. How could we seriously think that discrediting state action in the social
domain and abandoning the very idea of social “rights” constitutes progress toward thinking “beyond
the welfare state”? All it has done is allow the welfare state’s destruction, not a glimpse of something
“beyond.” The example of the quotation from Beatriz Preciado is particularly clear. In this succinct statement, she posits that the retreat of
the welfare state is ultimately not a serious political problem. We should probably even celebrate it, since it will now liberate individuals from
social control. The least one can say is that only an academic, someone relatively protected from social precarity, could say such a thing. The
truth is that in Continental Europe — but also in the United States — the
retreat of universal programs has led to
considerable social regressions whose impact is not only material but also ideological. It is not only the
welfare state that we have lost — it’s our capacity to think differently, to think outside the categories
of neoliberalism. What Is The “Right” Question? In his response to my interview, one of Peter Frase’s main critiques of my argument is
that it offers no radical political horizon outside of capitalism. My analysis is ultimately limited to an internal critique of neoliberalism, and I am,
perhaps, hoping — secretly — for a return to postwar Fordism. In reality, my argument is very different. As I say very clearly at the end of the
interview, a “return” to the past is neither possible nor desirable. At most, it’s a fantasy that has no chance of being realized in genuinely
emancipatory ways. On the contrary, this feeling of nostalgia is today at the heart of the political success of far-right parties, but also,
increasingly, of the mainstream right. This return to the past is seductive to a non-negligible fraction of the working class. In advocating for a
radical reversal of cultural liberalization, and of the cultural effects of neoliberal globalization, these parties have managed to win both the
ideological and economic battle. They propose no real alternative to capitalism, while winning the political struggle on the terrain of family
values, work, and responsibility. This nostalgia, with its clearly conservative effects, nevertheless hides within it a progressive dimension. Thus,
like religion in Marx’s account, it is “the sigh of the oppressed creature, the heart of a heartless world, and the soul of soulless conditions. It is
the opium of the people.” But this opium is “at one and the same time, the expression of real suffering and a protest against real suffering.” We
must therefore grasp the ambivalent nature of this sigh. It is not solely about nostalgia for a world without immigrants, a world of borders, and
women in the kitchen. It is also about the institutions of social security and the social conquests of the postwar era. This aspiration, like religion
in Marx’s eyes, must then be read on both of its faces. It is not solely the desire for a return to a more conservative society, it is also a testimony
to what might have been emancipatory in that society; a testimony to the progressive values that it represented for the working class. My point
is obviously not to limit us to this legacy, but on the contrary to defend it, to use it not only to win back the working classes but also to allow the
development of genuinely radical political ideas. The
question we should be asking ourselves today is not whether the
welfare state as it existed in the postwar era was a “dead end” for the Left. On the contrary, we should
ask ourselves how we can use its progressive dimensions for the purposes of social transformation. It is
much easier to imagine what a different form of social organization could look like on the basis of the
more progressive elements within the welfare state than it is to start from abstract ideas that are quite
often disconnected from the reality of workers. It’s always easy to imagine different worlds and
communist societies in a theoretical and abstract way . But these ideas are mainly formulated in the
seminar rooms of universities and in the meetings of marginal political groups. By cutting itself off from
the institutions that have actually (and not theoretically) transformed the world, the radical left also cuts
itself off from the real world and the day-to-day issues of the majority of the population . The institutions
that the workers’ movement established following the Second World War were much more than instruments for “stabilizing” capitalism. It’s
true that these institution were shot through with serious political contradictions, but they also represented, in embryo, the elements of a
different society, where the market would not occupy the central place it does today. So we
should continue the ideological and
political work that began with the birth of the welfare state. We should radicalize its legacy, we should
push it ever further, and imagine with it — and not against it — a genuinely egalitarian and democratic
society.

Their reading as state services as means of control is ahistorical and neoliberal

Zamora 14
12.10.2014 Daniel Zamora doctoral candidate in sociology at the Université Libre de Bruxelles being
interviewed in Ballast, a French Journal translated from French by Seth Ackerman “Can We Criticize
Foucault?” https://www.jacobinmag.com/2014/12/foucault-interview/
Interviewer: The question of the state is omnipresent in your book. Whoever critiques its raison d’être is allegedly a liberal. But
isn’t that forgetting the traditions of anarchism and Marxism, from Bakunin to Lenin? Aren’t you overlooking that dimension?

Zamora: I don’t think so. I think the

critique from the Marxist or anarchist tradition is very different from the one
Foucault was formulating, and not only him but also a significant swath of the Marxism of the 1970s. First, for the simple reason
that all those old anarchist and Marxist writers knew nothing of social security or the form the state
would take after 1945. The state Lenin was addressing was effectively the state of the dominant class , in
which workers played no real role. The right to vote, for example, wasn’t really generalized — for men — until the interwar era. So it’s hard to
know what they would have thought of these institutions and their so-called “bourgeois” character. I’ve
always been very irritated
by this idea, which is relatively popular within the radical left, that social security is ultimately nothing more than a
tool of social control by big capital. This idea demonstrates a complete misunderstanding of the history
and origins of our systems of social protection . These systems were not established by the bourgeoisie
to control the masses. On the contrary, it was totally hostile to them! These institutions were the result of the
strong position held by the workers’ movement after the Liberation. They were invented by the workers’
movement itself. From the nineteenth century onward, workers and unions had established mutual societies, for example, to pay
benefits to those unable to work. It was the very logic of the market and the enormous risks it imposed on the lives of workers that pushed
them to develop mechanisms for the partial socialization of income. In
the early phase of the industrial revolution, only
property owners were full citizens, and as the sociologist Robert Castel emphasizes, it was only with social security
that the “social rehabilitation of non-property-owners” really took place . It was social security that
established, alongside private property, a social property, intended to usher the popular classes into citizenship .
This is the idea Karl Polanyi advances in The Great Transformation, which sees in the principle of social protection the aim of withdrawing the
individual out of the laws of the market and thus reconfiguring relations of power between capital and labor. One can, of course, lament the
statist form in which social security is managed, or say, for example, that it ought to be run by collectives — though I don’t really buy that — but
criticizing the tool and its ideological basis as such, that’s very different. When
Foucault goes so far as to say it’s “clear that
there is hardly any sense in speaking of a ‘right to health,’” and asks, “should a society seek to satisfy
individuals’ need for health? And can those individuals legitimately demand the satisfaction of those
needs?” we are no longer really within the anarchist register . For me, and contrary to Foucault, what we
should do is deepen the social rights that we have already , we should “build on what already exists,” as
Bernard Friot says. And social security is an excellent tool that we should both defend and deepen. Along the same
lines, when I read the philosopher Beatriz Preciado, who writes in Libération that “we’re not going to cry over the end of the welfare state,
because the welfare state is also the psychiatric hospital, the disability office, the prison, the patriarchal-colonial-heteronormative school,” it
makes me think that neoliberalism
has done much more than transform our economy; it has profoundly
reconfigured the social imagination of a certain “libertarian” left .
Their analysis splinters the left and embraces conservative logics
Zamora 14
12.10.2014 Daniel Zamora doctoral candidate in sociology at the Université Libre de Bruxelles being
interviewed in Ballast, a French Journal translated from French by Seth Ackerman “Can We Criticize
Foucault?” https://www.jacobinmag.com/2014/12/foucault-interview/
Interviewer: If you look at the few critical intellectuals who contest Foucault (I’m thinking of Mandosio, Debray, Bricmont, Michéa, Monville, or
Quiniou), you might say, in broad terms, that they criticize him for positioning himself as more “sociétal” than “social” [i.e., more socio-cultural
than socio-economic]. But in focusing on “the marginal” (the excluded, the prisoners, the mad, the “abnormal,” the sexual
minorities, etc.), didn’t Foucault make it possible to bring into the light all these people who had until then been ignored by orthodox
Marxism — which had only been able to see economic relations?

Zamora: You’re absolutely right. I’ll say it again: his contribution on this point is very important. He clearly removed from the shadows a whole
spectrum of oppressions that had been invisible before. But his approach did
not solely aim to put these problems forward:
he sought to give them a political centrality that can be questioned . To say it plainly: in his eyes, and in the eyes of
many writers of that period, the working class today is “embourgeoisée,” it is perfectly integrated into the system. The
“privileges” that it obtained after the war make it no longer an agent of social change, but, on the
contrary, a brake on the Revolution. This idea was very widespread at the time, it can be found in authors as varied as Herbert
Marcuse or André Gorz. Gorz would go so far as to speak of a “privileged minority,” with respect to the working class. The end of this centrality
— which was also a synonym for the end of the centrality of work — would find its outlet in the “struggles against
marginalization” of ethnic or social minorities . The lumpenproletariat (or the “new plebeians,” to use Foucault’s term)
acquired a new popularity and was now seen as a genuinely revolutionary subject. For these authors, the problem is thus no
longer so much exploitation, but rather power, and modern forms of domination . As Foucault wrote, if “the
nineteenth century was concerned above all with relations between large economic structures and the state apparatus,” now it was “the
problem of petits pouvoirs [little powers] and diffuse systems of domination” which “have become fundamental problems.” Theproblem
of exploitation and wealth had been replaced by that of “too much power,” the power of control over
personal conduct, and forms of modern pastoral power . At the dawn of the 1980s, it seems clear that for Foucault it was
no longer a question of redistributing wealth. He has no trouble writing: “One could say we need an economics that deals
not with production and distribution but an economics that deals with relations of power.” Thus, it’s less
about a struggle against power “as economic exploiter,” and more about struggles against day-to-day
power, embodied especially by feminism, student movements, prisoners’ struggles, or those of the undocumented. Let me be clear, the
problem is obviously not to have placed on the agenda a whole spectrum of dominations that had once been
ignored, the problem comes from the fact that these dominations are more and more theorized and
thought outside of questions of exploitation. Far from outlining a theoretical perspective that thinks
through the relations between these problems, they are little by little pitted against each other, even
thought of as contradictory. That’s essentially what some people criticize him for: praising the figure of the “delinquent,” the
criminal, and the lumpen while ridiculing the “conservative” laborer and worker.

Interviewer: In your book, Jean-Loup Amselle draws a link between this abandonment of “the people” and the “écolo-bobo” position of the
governmental left, along the lines of Terra Nova [a neoliberal French think tank close to the Socialist Party]. What do you think of that?

Zamora: The problem is that this dismissal of the working class had rather astonishing effects . It put at the
forefront of public debate the “social exclusion ” of the unemployed, immigrants, and the youth of the banlieues as the
principal political problem. This evolution ended up being the point of departure — on both the Right and the
Left — for the centrality “the excluded” were to assume, the idea that now “post-industrial” society
would divide between those who have access to the labor market and those who, to one degree or
another, are excluded from it — thus displacing the focus from the world of work to exclusion, poverty,
or unemployment. As the sociologists Stéphane Beaud and Michel Pialoux have noted, this displacement would indirectly
place workers “on the side of the ‘ins,’ those who have a job on the side of the ‘privileged’ and ‘unearned
advantages.’” This logic, which redefined the social question on both sides — on both the Right and on the Left — as a conflict between two
factions of the proletariat, rather than between capital and labor, is something that needs to be examined. On the Right, the
aim was to limit the social rights of the “surplus population ” (surnuméraires) by mobilizing the “workers” (actifs)
against them, and on the Left it was about mobilizing the “surplus population” against the
embourgeoisement of the “workers.” Both sides, then, accept the centrality of the factions “excluded”
from the stable workforce, at the expense of the “workers .” We can thus ask ourselves whether, when Margaret Thatcher
contrasted the “protected” and “coddled” “underclass” with those “who work,” was she not expressing in inverse form the thesis of Foucault or
André Gorz? This new doxa of the conservative neoliberal right seeks essentially, as Serge Halimi notes, “the redefinition of the social question
in such a way that the line of cleavage no longer divides rich from poor, capital from labor, but rather two fractions of the ‘proletariat’ from
each other: that which is suffering from ‘compassion fatigue’ from that which represents the ‘welfare nation.’” Obviously the political content
of these right-wing statements differs radically from those of these late 1970s authors, but they both presuppose that today it is “the excluded”
who pose the problem, or the solution; it is the surplus population that has become the central political subject and no longer the working
class. Indeed, how can we not see a strange paradox between Gorz’s “non-class” and the “underclass” that is so dear to the ultra-conservative
ideologue Charles Murray? Both for Gorz and for the neoliberal movement, it is no longer the fact of being exploited that poses the problem, so
much as one’s relationship to work. Gorz sees the way of life of the surplus population as a “deliverance” from work, and Thatcher sees a “vice”
of laziness that must be combated. One elevates a “right to be lazy” to the status of virtue, whereas the other makes it out as an injustice that
must be destroyed. But underneath, these
two versions function in the same logic. Thus, both the Left and the
Right want the “surplus population” to be the problem, thereby supplanting those old, out-of-date,
dogmatic ideas that placed exploitation at the heart of the social critique. Both the Left and the Right
want to pit against each other two factions of the proletariat which, with the neoliberal economic evolution, have
entered into a destructive competition with each other . As the Marxist philosopher Isabelle Garo described it so well, this
shift would help to “replace exploitation and the critique of it with a centering of the victim who is denied justice, the prisoner, dissident,
homosexual, refugee, etc.”
 2AC Biopower Inevitable
Biopower is inevitable

Wright 08 (Nathan, Fellow at the Centre for Global Political Economy, “Camp as Paradigm: Bio-Politics
and State Racism in Foucault and Agamben”, 2008
http://ccjournal.cgu.edu/past_issues/nathan_wright.html)

Perhaps the one failure of Foucault’s that, unresolved, rings as most ominous is his failure to further
examine the problem of bio-political state racism that he first raises in his lecture series, Society Must Be
Defended. At the end of the last lecture, Foucault suggests that bio-power is here to stay as a fixture
of modernity. Perhaps given its focus on the preservation of the population of the nation it which it is
practiced, bio-power itself is something that Foucault accepts as here to stay. Yet his analysis of bio-
politics and bio-power leads inevitably to state-sanctioned racism, be the government democratic,
socialist, or fascist. As a result, he ends the lecture series with the question, “How can one both make
a bio-power function and exercise the rights of war, the rights of murder and the function of death,
without becoming racist? That was the problem, and that, I think, is still the problem.” It was a
problem to which he never returned. However, in the space opened by Foucault’s failure to solve the
problem of state racism and to “elaborate a unitary theory of power” (Agamben 1998, 5) steps Agamben
in an attempt to complete an analysis of Foucauldian bio-politics and to, while not solve the problem of
state racism, at least give direction for further inquiry and hope of a politics that escapes the problem of
this racism.
 2AC — Permutation
Our political strategy is important for interim gains — those are valuable because they
culminate in revolutionary politics — seeking complete revolution without state-
centric goals leads to inevitable failure
Connolly 13, Krieger-Eisenhower Professor of Political Science at Johns Hopkins (William Connolly,
2013, The Fragility of Things, pages 181-189)

We begin by noting a dilemma haunting electoral politics in several countries. (1) It

is tempting for critics to forgo electoral
politics because it is so dysfunctional. But to do so cedes too much independent power to corporate
action and the radical right with respect to state power. The right loves to make politics dysfunctional to
make people lose confidence in it and to transfer their confidence to the private sector. (2) Yet the logic of the
media-electoral-corporate system does spawn a confined grid of electoral intelligibility that makes it difficult to think, experiment, and act
outside its parameters. Think of the market initiating/state veto power of corporations, of media talking heads concentrating on differences
between candidates, of the primacy of electoral strategists, of focus groups, of the role of scandal in the media and electoral politics, of the
strategic location in elections of inattentive “undecided voters,” of billionaire super PACs, and so on. The
electoral grid cannot be
ignored or ceded to the right, but it also sucks experimental pursuits and bold ventures out of politics.
How can we renegotiate this dilemma of electoral politics? That is the problematic within which I am working. I do not
purport to have a perfect response to it. Perfect answers are suspect. It may be wise to start with the
positive possibilities of micro-experimentation on several fronts. One thing that connects individuals ,
constituencies, and institutions is the roles that constitute an institutional matrix . The word connection is actually
too weak. We are partly constituted by the array of roles we perform, and those performances resonate
with the larger institutions in which they are set . You are, say, a teacher, an athlete, a lover, a parent, a middle-aged child of an aging
parent, a student, a worker, a voter, a churchgoer, a film addict, a citizen, a consumer, a member of a political party, an investor, a blogger, a musician, an artist, and
so on endlessly. You are, in part, a composite of the roles in which you participate, even though you overflow that composite. Subcategories, of course, multiply
within each abstract category. A “worker” may repair computers, cook hamburgers, serve tables, advise clients on investments, sell furniture, teach elementary
school kids, give Sunday sermons, be a TV producer, be a film director, and so on. As a devotee, you may be an evangelical Christian, a Catholic, a reform Jew, an
orthodox Jew, a Unitarian, a devotee of nontheistic reverence, a Muslim, a Hindu, or a follower of the kind of Buddhism that eschews a personal God. The degree of
intensity within each of these modes of identification will also vary. Many role performances are tacit, as when you follow accepted rules of eye contact on an
urban street, stop automatically at a red light on the way to work, chew your food a set number of times before swallowing, unconsciously participate in a settled
practice of consumption, watch and listen quietly to a film at the theater, glance at an attractive gym partner through the mirror rather than staring directly, close
the door when you are in the bathroom, adopt a distinctive stride during casual walks, or never pick your nose in public. To break that last restraint would be
disgusting, reminding us how tacit role performances are infused with affective judgments. Such practices have become habitual, often in ways that condense
previous relations of overt power. Other role performances are more clearly laden with degrees of power, as when you obey an order from a boss, pay your taxes
on time, arrive at work punctually, bow your head during prayer to minimize family tensions, avoid eye contact with a cop, give your earnings to the pimp who
oppresses you, obey the terms of your probation, buy a car because no other mode of transportation is available, conform to the pace of work on an assembly line,
or conceal drugs from prison officials. Erving Goffman is brilliant at disclosing the tacit character of many shared role performances, as Judith Butler is in thinking
about how they help to constitute a culture of gender practices. Here is one statement from Goffman, as he collects examples from multiple sources, exposing a
series of tacit role performances that define and secure the modern sense of bodily integrity: How very intimate the bodily sense is can be seen by performing a
little experiment in your imagination. Think first of swallowing the saliva in your mouth, or do so. Then imagine expectorating it into a tumbler and drinking it! What
seemed natural and “mine” suddenly becomes disgusting and alien. Or picture yourself sucking blood from a prick in your finger; then imagine sucking blood from a
bandage around your finger! What I perceive as separate from my body becomes, in the twinkling of an eye, cold and foreign. 2 “In the twinkling of an eye.” Butler,
in Gender Trouble, focuses on how experimental performances bring out tacit practices that constitute the dominant experience of gender. Here is what she says in
an early book about the ambiguity of drag: “In imitating gender, drag implicitly reveals the imitative structure of gender itself—as well as its contingency. Indeed,
part of the pleasure, the giddiness of the performance is in the recognition of a radical contingency in the relation between sex and gender in the face of cultural
configurations of causal unities that are regularly assumed to be natural and necessary…; we see sex and gender denaturalized by means of a performance.” It is of
course debatable how far such denaturalization proceeds, and drag does not guarantee, as Butler knows, which responses will be made to its strategy of
denaturalization. But denaturalizing performances do open the door to new possibilities of enactment, as they disclose inner, nuanced relations between cultural
performance and gender constitution. As another quote from Butler in a later edition of the same book reveals, the culturally infused sense of bodily integrity and
disgust in Goffman's example carries implications for the unconscious norms of sexual experience historically built into this culture: “Those sexual practices in both
heterosexual and homosexual contexts that open surfaces and orifices to erotic signification or close down others effectively reinscribe the boundaries of the body
along new cultural lines. Anal sex among them.” 3 To reinscribe the cultural play of disgust and pleasure with respect to bodily fluids and orifices is to participate in
the micropolitics of gender and sexual practice. As these two thinkers reveal, there
are significant relays between role performance,
self-identity, and the formation of larger political constellations. Not in the sense that minor shifts in a series of role
performances could by itself transform an entire political regime but in the sense that large-scale cultural investments in a set of role
expectations tend to express and support the priorities of an established regime, while large-scale role experimentations can both
make a difference on their own and help to set preconditions for constituency participation in more
robust political movements. The domains of gender and sexuality are important on their own, and recent success in these domains carries
suggestions of how to act in others as well. The creative politics of gender and sexuality during the past forty years displays how potent the play back and forth can
be among role experimentations, occupational practices, local assemblies, teaching routines, church struggles, state policies, judicial decisions, and legislative
enactments. Here I focus on protean connections between role experimentation, self-identity, economic performance, and macropolitical actions. To condense the
flow chart, an institution is an organized hierarchy of roles in relation to energies and activities that overflow them, such as gossip, backdoor deals, confusion,
whistle-blowing, care, revenge, and secrecy; roles mediate between identities and institutions; there is often a degree of slack within institutions as to how a role is
to be performed; an accumulation of role experimentations in several venues can make a direct difference in politics; role experimentations by some can also set
examples for others; and such experiments can filter into the sensibilities, beliefs, identities, and larger political activities of those who initiate and respond to them.
4 A series of shifts on this register, for instance, may dispose you to listen attentively to new proposals for large-scale political action. Powerful subterranean
currents thus flow back and forth between role performance, existential orientation, belief, and larger political actions. Indeed as such oscillations proceed,
moments of stuttering, unfocused shame, laughter, and hesitation periodically arise, drawn from the element of noise that inhabits the spaces between roles and
role bearers. There is no zone of complete neutrality in a world of role performances. Obedient performances in cumulative effect tend to support the existing
regime as they insinuate its dictates into our collective habits of perception, judgment, and action. Unless a dissident group of workers meticulously “works
according to rule” to disrupt production through excruciating obedience in a way that discloses how tangled formal rules can become. Or a group creatively
improvises on the performance of Bartleby the Scrivener, posing endless questions about the orders given to it until the machine overflows itself or is jammed.
These indeed are creative role experimentations. So was the practice in Eastern Europe during the late stages of Soviet rule to clap endlessly when a Soviet stooge
spoke, until the bewildered speaker was moved to sit down amid the roar around him. I recently attended a faculty meeting with the president of my university at
which the entire faculty remained silent after his CEOstyle talk ended and he departed slowly up the aisle. Sometimes silence sends a message to power. Our
lives are messages. 5 Role
experimentation can disrupt and redirect the flow of authority, habit, institutional
regularity, and future projection. It can also encourage others to look more closely at their own performances in this or that
domain. Such experiments can also set the stage for more adventurous and larger scale actions. My examples
will be limited to constituencies who are the most apt to read this book, though they could easily be adjusted to a broader array. Suppose a
constellation of students, studying to enter professional life, forms study groups to explore more closely how those professions presuppose and
enforce a set of practices that contribute to the fragility of things as they simultaneously draw attention away from that contribution. The
students may pose untimely questions in their political science, economics, engineering, medical, business, legal, and biology classes. If in a
secular institution, they may seek out courses that complicate the assumptions of secularism. If in a religious school, they may organize a group
to explore the history of atheism or of minority faiths that eschew the theme of a personal God. They can engage experimental artistic work
that stretches their habitual patterns of perception and judgment. The nature- and soundscape compositions of John Luther Adams have
salutary effects on many in this respect. Such
activities can also prime you to experiment with other role
performances once you enter professional life. If a lawyer, you may organize to rethink your connections
to the ugly prison system and to adjust your practice to protest its ugliness. Or you may give a portion of your time to
challenge corporations, localities, and states that defile the environment. If a doctor, you may organize voluntary medical care for the poor and
publicize what you are doing. In both cases these experimentations
make a modest difference on their own, prime
our capacities for more sensitive perception in other domains of life, and may prepare us to participate
with others in yet more adventurous activities . These are minor moments, but an accumulation of minor moments can jostle settled
habits of perception; they can encourage a readiness to become more exploratory; and they can extend the time horizon within which we think and act. Suppose,
now, you are middle- or upper-middle-class citizens in a polity that has competitive elections. You have become increasingly dissatisfied with the course your society
is taking. Voting, while pertinent, seems radically insufficient to the issues involved. Its time horizon is too short and the strategic place of ill-informed undecided
voters in electoral politics skews campaigns too sharply. Inequality has been extended. The lower reaches of society are left out in the cold and often blamed for the
suffering they undergo. The news media are organized around scandal and a brief time horizon. Racial differences are exploited to break up potential coalitions on
the left. A large slice of the population is periodically susceptible to war fever. Climate change is widely subjected to deferral, denial, or formal acceptance
disconnected from action. And the right wing actively promotes filibusters and legislative stalemates to encourage more and more people to withdraw from
citizenship and to tolerate the privatization of more and more of life. The sciences and professions with which you are familiar are often too narrowly defined. Too
many churches either provide refuges from the world or serve as sites of aggressive attack on ecological concerns, homosexuality, carriers of alternative faiths, or
poor minorities. You know what political party you support; you vote regularly; and you give time and money to your party. But you also find it difficult to connect
the sentiments you profess to the role expectations sedimented into your practices of work, church, consumption, neighborhood association, investment portfolio,
children's school, artistic pursuits, and local news reporting. Now is the time to join others in becoming role experimentalists. You may actively support the farm-to-
table movement in the restaurants you visit; you may support the slow food movement; you may frequent stores that offer food based on sustainable processes;
you may buy a hybrid or, if feasible, join an urban zip-car collective, explaining to friends, family, and neighbors what effect such choices could have on late modern
ecology if a majority of the populace did one or the other; you may press your neighborhood association and workplace to buy solar panels and install them
yourself; you may use writing and media skills developed in school to write for a blog; you may shift a large portion of your retirement account into investments that
support sustainable energy; you may withdraw from aggressive investments that presuppose an unsustainable growth pattern, threaten economic collapse, and/or
undermine the collective future; you may bring new issues and visitors to your church, temple, or mosque to support rethinking about interdenominational issues
and the contemporary fragility of things; you may found, join, or frequent a repair club, at which volunteers collect and repair old appliances, furniture, and vehicles
to cut back on urban waste and increase the longevity of these items; you may probe and publicize the multimodal tactics by which twenty-four-hour news stations
work on the visceral register of their viewers, as you explore ways to counter those techniques; you may travel to places where unconscious American assumptions
about world entitlement are challenged on a regular basis; you may augment your pattern of films and artistic exhibits attended to stretch your habitual powers of
perception and to challenge some affectimbued prejudgments embedded in them; you may seek out new friends who are also moving in these directions. You may
regularly relay pregnant essays you encounter to friends, colleagues, and relatives. A series of minor role experiments As we proceed our aspirational selves may
now begin to exceed our operational selves, and the shame we feel about the discrepancy between these two aspects of the self may generate energy to enter into
yet new modes of role experimentation. 6 We thus begin to make ourselves and our engagements more experimental rather than simply falling into a ready-made
set of role expectations. We have begun to become what Nietzsche calls “our own guinea pigs” rather than merely being the guinea pigs of those in charge of these
As such experiments accumulate, the ice in and around us begins to crack . First, the shaky perceptions,
institutions.

feelings, and beliefs with which we started these experimentations now become more refined and more entrenched. Second, we
are now
better situated to forge connections with yet larger constituencies engaging in similar experiments . Third,
as these connections accumulate we may be more inspired to join macropolitical movements that
speak to the issues. Fourth, as we now join protests, slowdowns, and confrontational meetings with corporate managers, church
leaders, union officials, university officials, and neighborhood leaders, we may now become more alert to the institutional pressures that propel
these constituencies forward too. They are also both enmeshed in a web of roles that enable and constrain them and often more than mere
role bearers. These roles too exhibit varying degrees of pressure and slack as they link the details of daily conduct to the strategic practices of
One advantage of role experimentation by several constituencies at multiple sites
the larger political economy.
is that it speaks to a time in which the drive to significant change must today be mobilized by a large,
pluralist assemblage rather than by a single class or other core constituency. Such an assemblage must be
primed and loaded by several constituencies at many sites. Role experimentations and the shape of a
pluralist assemblage thus inflect one another. We must condense some of the steps involved. But perhaps the
multidimensional pluralist assemblage in which you have now begun to participate approaches a tipping point—
crystallized, say, by movement back and forth between role experiments, shifts in the priorities of some
strategic institutions, and a change in the contours of electoral politics. Now a surprising event may occur,
allowing these emergent energies to be crystallized. At this point some will enter the scene to say that
no kind of “reformism,” no matter how extensive, is acceptable. We must wait for a bigger, more total transformation,
they will say. Such an account will be offered at precisely this tipping point as the only sophisticated reading of the
world. But it is not. Yes, roles, institutions, events, constitutive acts, and larger structures are interinvolved,
with each enabling and limiting others. Yes, we do inhabit a world of multiple entanglements and interconnections. Yes, the
primacy of capitalist markets and private ownership does give owners and high-rolling investors key advantages in
setting the agenda of the state. Yes, states subject to public elections are also limited by systemic
relations to corporate structures and the threat of capital strikes. Yes, extreme inequality, combined with legislative and court
decisions inspired by neoliberal ideology, do disenfranchise many as they release billions of dollars to right-wing electoral campaigns. Yes,
private ownership of the media does give great advantages to the corporate establishment. Yes, dependent workers do face uphill battles in
limiting capital through labor organization. Yes,
the limited reach of semisovereign states in the global economy
exerts corporate pressure on them, just as, inside the United States at least, the right-wing Supreme Court's devolution of
authority to states in a federal system forces states to compete with each other for corporate favors. Yes, elected representatives are
dependent on campaign money and their desires to find jobs as lobbyists after they leave office. Yes, there are pressures on many in the lower
middle class to identify with the vision of the future publicized by those above them. It
may therefore appear that there are no
cracks and fissures in these interconnected processes. It may seem that you must either embrace the
system with fervor, withdraw as much as possible from it, or wait for an explosion that changes
everything rapidly. The hegemony of neoliberal ideology reinforces such a reading of the alternatives, in
its way, even as it otherwise emphasizes our inability to have a bird's-eye view of the system. It offers a bird's-eye view of the whole whenever
it insists that market self-organization means impersonal market rationality. But repeated experience belies such an equation. There are
numerous examples of surprising economic meltdowns, often ushered into being by submission to that very ideology. And periodically
critical movements emerge, as if from nowhere, to challenge existing priorities at vulnerable sites. There
is, for starters, the surprise of the Arab Spring, with its ambivalent possibilities; the emergence of a New Left in Euro-
American countries in the 1960s and 1970s; the birth of feminist and gay rights movements in those same
countries that have probed soft spots in churches, the media, corporate benefit packages, universities, state policy, and families; there is the
“slut walk” by which young women challenged the idea that how they dress determines whether they deserve sexual assault; there
is
Tiananmen Square, which revealed currents of energy and protest in China that are still festering; there
is the Occupy movement, springing as if from nowhere, to galvanize previously isolated pockets of
dissatisfaction and unrest; there is the civil rights movement, which has reenergized itself several times;
there are several ecological movements, mobilizing diffuse dissatisfactions with the direction neoliberal regimes have taken.
Each of these events and movements exposes soft spots, cracks, uneven edges, and leakages in “the
system,” through which new lines of creative activity can form and pass.

Permutation—do the plan and [alternative]—we can make pragmatic use of the law
without entrenching it.
Ip 10 (Eric, Doctor of Philosophy candidate, Centre for Socio-Legal Studies, Faculty of Law, University of
Oxford, “Globalization and the future of

the law of the sovereign state,” 2010, Oxford University Press and New York University School of Law,
https://academic.oup.com/icon/article/8/3/636/623517, DOA: 6-25-2018) //Snowball

The entrenched vision of law as a “uniform and monopolistic” set of rules that governs a given community is currently
experiencing a collapse.29 To approach legal phenomena pluralistically—from the multiplicity of “global,
international, transnational, regional, inter-communal, municipal, substate and non-state local”
perspectives— enhances our understanding of the globalization of international governance .30 A
“useful” legal pluralism should recognize the importance of state law but refrain from assuming that
everything is inferior to it.31 State law should be neither understood as the supreme system of social
ordering nor simply seen as parallel to other legal orders. The relationship between the law of the state and other normative
structures is crucial to the understanding of legal phenomena as a whole.32

Contemporary jurisprudential scholars, such as H. L. A. Hart, John Rawls, Ronald Dworkin, Hans Kelsen, and Joseph Raz, remain too
focused on scholarly approaches that concentrate excessively on formal state legal norms.33 In particular,
Hart and Kelsen are largely against the notions of legal pluralism and nonstate law.34 Many professional lawyers rely on the primacy of the
“closed systems” of state law as the “regulator of social relations.”35 Mainstream social-science writings on globalization often neglect the role
of law. However, legal academia tends to emphasize the role of legal forces to the detriment of globalization.36 As
such, legal
pluralism, which recognizes the coexistence of multiple legal orders within the same social space, has
become more important than ever.37
COVID
 2AC — Author Indict
Agamben told a friend not to get a life-saving heart transplant
Nancy 20, old friend of Giorgio Agamben (Jean-Luc Nancy, 2-27-2020, "Coronavirus and philosophers,"
No Publication, http://www.journal-psychoanalysis.eu/coronavirus-and-philosophers/)

Giorgio Agamben, an old friend, argues that the coronavirus is hardly different from a normal flu. He
forgets that for the “normal” flu there is a vaccine that has been proven effective . And even that needs to
be readapted to viral mutations year after year. Despite this, the “normal” flu always kills several people,
while coronavirus, against which there is no vaccine, is evidently capable of causing far higher levels of
mortality. The difference (according to sources of the same type as those Agamben uses) is about 1 to 30: it does not seem an insignificant
difference to me. Giorgio states that governments take advantage of all sorts of pretexts to continuously
establish states of exception. But he fails to note that the exception is indeed becoming the rule in a
world where technical interconnections of all kinds (movement, transfers of every type, impregnation or spread of
substances, and so on) are reaching a hitherto unknown intensity that is growing at the same rate as the population. Even in rich
countries this increase in population entails a longer life expectancy , hence an increase in the number
of elderly people and, in general, of people at risk . We must be careful not to hit the wrong target: an
entire civilization is in question, there is no doubt about it. There is a sort of viral exception – biological, computer-scientific, cultural
– which is pandemic. Governments are nothing more than grim executioners, and taking it out on them seems more like a diversionary
manoeuvre than a political reflection. I
mentioned that Giorgio is an old friend. And I apologize for bringing up a
personal recollection, but I am not abandoning a register of general reflection by doing so. Almost thirty
years ago doctors decided I needed a heart transplant. Giorgio was one of the very few who advised
me not to listen to them. If I had followed his advice, I would have probably died soon
enough. It is possible to make a mistake. Giorgio is nevertheless a spirit of such finesse and kindness that one may define him –
without the slightest irony – as exceptional.
 2AC — COVID-19
Tag
Sotiris 20, taught social and political philosophy as an adjunct lecturer at the University of Crete,
Panteion University, the University of the Aegean, and the University of Athens, research interests
include Marxist philosophy, the work of Louis Althusser, and social and political movements in Greece
(Panagiotis Sotiris, 3-20-2020, "Against Agamben: Is a Democratic Biopolitics Possible?," Viewpoint
Magazine, https://www.viewpointmag.com/2020/03/20/against-agamben-democratic-biopolitics/)

The coronavirus pandemic has forced us to rethink the politics of health in the broadest sense. In
particular, we have had to confront again that vexed relationship between the state, the dominant
social relations and public health. Concepts that may have seemed obscure and or to have fallen out of
one academic fashion, such as biopolitics or “naked life”, have leapt from the page and become
suddenly irrepressibly pertinent to our everyday experiences. The same could be said about ‘the state of
exception’, whose recent popularity recalls the onset of the War on Terror, and now refers to the
extreme, authoritarian measures taken to confront the pandemic. At the same time they pose the
challenge of how to think about the politics of health from the perspective of the subaltern classes. In
view of this challenge I believe that these concepts need to be both problematized and re-elaborated. A
recent intervention from the philosopher Giorgio Agamben offers, in my opinion, an example of a failure
to answer this challenge so grave, that it may lead many to reject the problem and concept of biopolitics
itself - specifically because the mentioned concepts are so closely associated with Agamben’s work. In
an article written at the very first stages of the Covid-19 epidemic in Italy, Agamben characterized the
measures implemented in response to the Covid-19 pandemic as an exercise in the biopolitics of the
‘state of exception’. This text has sparked an important debate on how to think of biopolitics in relation
to events such as pandemics and the measures associated with them. In it, Agamben, suggested that the
measures taken were imposing an ‘authentic state of exception’ and that the ‘invention of an epidemic
offered the ideal pretext’ for further limitations to basic freedoms. The article provoked a series of
responses. Jean-Luc Nancy insisted that the danger from the epidemic is indeed real and that the very
notion of the exception is becoming the rule as a result of the increased ‘technical interconnections’ of
all kinds in contemporary life. Roberto Esposito in his response to both Agamben and Nancy defended
the relevance of biopolitics as a way to think important contemporary developments but also suggested
that the situation in Italy ‘has more the character of a breakdown of public authorities than that of a
dramatic totalitarian grip’. Others stressed the reality of the danger of the pandemic, the need to avoid
easy dismissals of warnings by experts and the need to rethink the very notion of responsibility we have
toward others.1 I think that this debate offers a way to rethink the very notion of biopolitics, and I would
like to offer some preliminary thoughts on the possibility of an alternative thinking of biopolitics. The
notion of biopolitics, as it was formulated by Michel Foucault, has been a very important contribution to
our understanding of the changes associated with the passage to capitalist modernity, especially in
regards to the ways that power and coercion are exercised. From power as a right of life and death that
the sovereign holds, we pass to power as an attempt to guarantee the health (and productivity) of
populations.2 This led to an expansion without precedent of all forms of state intervention and coercion.
From compulsory vaccinations to bans on smoking in public spaces, the notion of biopolitics has been
used in many instances as the key to understanding the political and ideological dimensions of health
policies. At the same time, it has allowed us to analyse various phenomena that are often repressed in
the public sphere, from the ways that racism attempted to find a ‘scientific’ grounding to the dangers of
trends such as eugenics. And indeed Agamben has used it in a constructive way, in his attempt to
theorise the modern forms of a ‘state of exception’, namely spaces where extreme forms of coercion are
put in practice, with the concentration camp the main example.3 The questions regarding the handling
of the Covid-19 pandemic obviously raise issues associated with biopolitics. Many commentators have
suggested that China made steps towards containing or slowing the pandemic because it could
implement an authoritarian version of biopolitics, which included the use of extended quarantines and
bans on social activities, which was helped by the vast arsenal of coercion, surveillance and monitoring
measures and technologies that the Chinese state has at its disposal. Some commentators even claimed
that because liberal democracies lack the same capacity for coercion or invest more on voluntary
individual behaviour change, they cannot take the same measures and this could inhibit the attempt to
deal with the pandemic. However, I think that it would be a simplification to pose the dilemma as one
between authoritarian biopolitics and a liberal reliance on persons making rational individual choices.
Moreover, it is obvious that simply treating measures of public health, such as quarantines or ‘social
distancing’, as biopolitics somehow misses their potential usefulness. In the absence of a vaccine or
successful anti-viral treatments, these measures, coming from the repertoire of 19th century public
health manuals, can reduce the burden, especially for vulnerable groups. This is especially urgent if we
recognize that even in advanced capitalist economies public health infrastructure has deteriorated and
cannot actually stand the peak of the pandemic, unless measures to reduce the rate of its expansion are
taken. One might say that contra Agamben, the concept of ‘naked life’ can better describe the pensioner
on a waiting list for a respirator or an ICU bed, because of a collapsed public health system, than the
attempt to adjust to the practical exigencies of social distancing or quarantine measures. In light of the
above I would like to suggest a different return to Foucault. I think that sometimes we forget that
Foucault had a highly relational conception of power practices.4 In this sense, it is legitimate to ask
whether a democratic or even communist biopolitics is possible. To put this question in a different way:
Is it possible to have collective practices that actually help the health of populations, including large-
scale behaviour modifications, without a parallel expansion of forms of coercion and surveillance?
Foucault himself, in his late work, points towards such a direction, around the notions of truth, parrhesia
and care of the self.5 In this highly original dialogue with ancient philosophy, in particular Hellenistic and
Roman, he suggested an alternative politics of bios that combines individual and collective care, based
on a certain obligation and courage to tell the truth, in non-coercive ways. In such a perspective, the
decisions for the reduction of movement and for social distancing in times of epidemics, or for not
smoking in closed public spaces, or for avoiding individual and collective practices that harm the
environment, would be the result of democratically discussed collective decisions based on the
knowledge available and as part of a collective effort to care for others and ourselves. This means that
from simple discipline we move to responsibility, in regards to others and then ourselves, and from
suspending sociality to consciously transforming it. In such a condition, instead of a permanent
individualized fear, which can break down any sense of social cohesion, we move towards the idea of
collective effort, coordination and solidarity within a common struggle, elements that in such health
emergencies can be equally important to medical interventions. This offers the possibility of a
democratic biopolitics. This can also be based on the democratization of knowledge. The increased
access to knowledge, along with the need for popularization campaigns makes possible collective
decision processes that are based on knowledge and understanding and not just the authority of
experts.

Biopolitics from below

The battle against HIV, the fight of stigma, the attempt to make people understand that it is not the
disease of ‘high risk groups’, the demand for education on safe sex practices, the funding of the
development of therapeutic measures and the access to public health services, would not have been
possible without the struggle of movements such as ACT UP. One might say that this was indeed an
example of a biopolitics from below. And in the current conjuncture, social movements have a lot of
room to act. They can ask of immediate measures to help public health systems withstand the extra
burden caused by the pandemic. They can point to the need for solidarity and collective self-
organization during such a crisis, in contrast to individualized “survivalist” panics. They can insist on
state power (and coercion) being used to channel resources from the private sector to socially necessary
directions. They can organize struggles for paid sick leave and for an end to measures such as eviction.
They can put their collective ingenuity in practice to create forms of support for the elderly and those
without any assistance. They can project, in all possible ways, the fact that today the struggle against the
pandemic is a struggle waged by labour, not capital, by doctors and nurses in understaffed public health
systems, by precarious workers in the vital supply chains, by those that keep basics infrastructure
running during the lock-down. And they can demand social change as a life-saving exigency.

Agamben’s COVID lies and friend’s heart transplants story are indicators that his
ideologies are theoretical jargon in the face of contemporary issues
Berg 20, junior research fellow in philosophy at the University of Cambridge and an editor at The Point
(Anastasia Berg, 3-23-2020, "Giorgio Agamben’s Coronavirus Cluelessness," Chronicle of Higher
Education, https://www-chronicle-com.www2.lib.ku.edu/article/Giorgio-Agamben-s/248306)
The unprecedented uncertainty amid the coronavirus pandemic has decimated our carefully laid plans and unsettled our minds at equal pace.
Anxiety manifests in an utter inability to concentrate; our efforts to "work from home" are largely consumed by staring blankly at Twitter, the
homepages of The New York Times and The Guardian, and Medium posts stuffed with impenetrable graphs and dubious advice. These
circumstances call not for more epidemiological modeling, we think, but for philosophy. The question — "What should I do?"— is, after all, a
variant of the first philosophical question, namely, how should I live? Just in time, someone apparently well-suited for the task arrives. The
Italian philosopher and cultural theorist Giorgio Agamben
has long served as a model of how philosophical reflection
can help us evaluate the moral implications of catastrophes of an order the mind can barely comprehend, most famously
the Holocaust. He is especially well known for his work on the intellectual and political history of the very
concept of "life," and the threat that political sovereignty poses to it. In two short pieces (the first, "The State
of Exception Provoked by an Unmotivated Emergency," an article for the Italian daily newspaper Il manifesto, translated into English and posted
by the journal Positions Politics; the second, "Clarifications," posted originally in its English translation on the humanities blog An und für sich),
Agamben brings his trademark conceptual apparatus to bear on the global response to the coronavirus
pandemic. The emergency measures for the "supposed epidemic of coronavirus," he writes, are "frantic, irrational, and absolutely
unwarranted." Coronavirus, Agamben insists (in the last days of February!) is "a normal flu, not much different from those that
affect us every year." As most readers will have learned by now, even under the most conservative of estimates, coronavirus’s fatality rate is 10
times greater than that of the common flu — 1 percent to the common flu’s 0.1 percent. But, after all, we came to Agamben for a break from
facts. What matters to Agamben is not the empirical situation but the political one. And here we find Agamben in
classic form. The real "state of exception," and therefore the real threat, is not the disease itself. It is the "climate of
panic" that "the media and the authorities" have created around the disease , which allows the government to
introduce the extreme kinds of restrictions on movement, congregation, and ordinary sociability without which our daily life and work quickly
become unrecognizable. The lockdowns and quarantines are, indeed, just one more manifestation of "the growing tendency to use the state of
exception as a normal governing paradigm." The government, he reminds us, always prefers to govern by exceptional measures. In case you are
wondering how literally we are meant to take this piece of critical-cum-conspiracy theory, he adds that "once terrorism was exhausted as a
justification," the next best thing is the "invention of an epidemic." Like a bemused Fox News anchor, Agamben concludes that travel bans,
canceling public and private events, closing public and commercial institutions, and enforcing quarantine and surveillance are all simply
"disproportionate": a cost too high to pay to protect oneself from just one more ordinary disease. In a widely circulated response, the
French philosopher Jean-Luc Nancy, who identifies Agamben as an "old friend," takes exception to
Agamben’s focus on government as the sole culprit of the crisis , but concedes his general argument about the perils of
a perpetual state of panicked existence: "an entire civilization is involved, there is no doubt about it." Yet the most noteworthy part of
Nancy’s reply is its closing note: "Almost thirty years ago doctors decided that I needed a heart
transplant. Giorgio was one of the very few who advised me not to listen to them. If I had followed his
advice I would have probably died soon enough. It is possible to make a mistake ." Nancy is right: Mistakes can be
made. But is Agamben’s dogmatic skepticism toward institutional intervention of all kinds rightly
classified as a mistake? Or has an intellectual habit become a pathological compulsion? Either way, Nancy’s
small personal anecdote reveals just what is at stake in Agamben’s polemical pose, applied to the real world: the life of loved ones, especially
the old and vulnerable. Not that Agamben would allow his old friend’s words, not to mention the devastation
that has continued ravaging Italy, to rattle his confidence. The deaths of hundreds of Italians per day
seems only to have hardened his resolve. In his second piece, titled simply "Clarifications," Agamben graciously concedes that an
epidemic is upon us, leaving behind the misleading empirical claims. (Well, almost, and the exception is worth noting: Agamben claims
that "There have been more serious epidemics in the past, but no one ever thought for that reason to
declare a state of emergency like the current one, which prevents us even from moving." This is false. As
Agamben’s intellectual godfather Michel Foucault details in Discipline and Punish, as early as the 1600s,
preparations for the plague included the complete restriction of movement between and within towns
in Europe: "Each individual is fixed in his place. And, if he moves, he does so at the risk of his life, contagion or punishment.") For the
most part, Agamben focuses his clarification on another, principled objection to the draconian measures
implemented across the world: How much sacrifice is too much? Agamben correctly observes that the
question of the proportionality of the response is not a scientific one; it is moral. And the answer is not
obvious. Here, at least, Agamben arrives at a serious question. This is exactly the kind of question we had hoped the humanist could help us
answer. Agamben’s way of addressing it is framed by a distinction between "bare life" — our biological survival — and something he holds in
higher regard; call it social or ethical life. "The first thing that the wave of panic that has paralyzed the country obviously shows is that our
society no longer believes in anything but bare life," he observes. In our hysterical panic, exerting herculean efforts to avoid physical harm, we
have made ourselves vulnerable to loss of a far higher order: sacrificing our work, friendships, extended families, religious rites (first among
them, funerals), and political commitments. In this way, we might preserve ourselves biologically, but we will have eliminated in the process
anything that gives life meaning, that makes it worth living.

Agamben dresses up outdated jargon as courageous resistance.

What is more, the exclusive focus on survival at any cost, on the preservation of "bare life," not only constitutes a spiritual defeat in its own
right, but turns us against one another, threatening the possibility of meaningful human relationships and thus any semblance of "society":
"Bare life — and the danger of losing it — is not something that unites people, but blinds and separates them." Paranoia drives us to view other
human beings "solely as possible spreaders of the plague," to be avoided at all costs. Such a state, where we all dedicate ourselves to a battle
against an enemy within us, lurking in every other person, is "in reality, a civil war." The consequences, Agamben predicts, will be grim and will
outlast the epidemic. He concludes: Just as wars have left as a legacy to peace a series of inauspicious technology, from barbed wire to nuclear
power plants, so it is also very likely that one will seek to continue even after the health emergency experiments that governments did not
manage to bring to reality before: closing universities and schools and doing lessons only online, putting a stop once and for all to meeting
together and speaking for political or cultural reasons and exchanging only digital messages with each other, wherever possible substituting
machines for every contact — every contagion — between human beings. To be clear, Agamben
is right that the costs we are
paying are exceedingly high: The response to the epidemic exacts great sacrifices from us as individuals
and from society as a whole. Moreover — and putting to one side the conspiratorial paranoia — there is a real risk that the virus will
lower public resistance to political measures that threaten democratic self-governance: increased use of surveillance, the expansion of
executive powers, and restrictions on the freedom of movement and association. Observing
potential costs, however, is the
easy part. What is much more difficult and much more perilous is getting clear on what it is exactly that
we are sacrificing for. Agamben is right that a life dedicated solely to our own biological survival is a
human life in name only, and that to voluntarily choose such a life is not merely a personal sacrifice but
a form of societywide moral self-harm. But is this really what we are doing? There are of course those who refuse
to bow to the recommendations of the authorities — the Florida spring breakers, the St.
Paddy’s Day pub crawlers. Are these the moral heroes Agamben is calling for? In the

meantime, those of us who have, with heavy hearts, embraced the restrictions on our freedoms, are not
merely aiming at our own biological survival. We have welcomed the various institutional limitations on
our lives (in fact sometimes hoped our governments would introduce these sooner), and we have urged our friends and family (especially
our stubborn parents!) to do the same, not to ward off "the danger of getting sick," not for the sake of our bare life, and indeed not for the sake
of the bare life of others, but out of an ethical imperative: to exercise the tremendous powers of society to protect the vulnerable, be they our
loved ones or someone else’s. We
are doing all of this, in the first place, for our fellow people — our parents, our
grandparents, and all those who are, by dint of fate, fragile. Nothing could be further from our minds
than the maintenance of their "bare life": We care about these people because they are our kin, our friends, and the members
of our community. My fiancé and I canceled our summer wedding last week. We did it so that our guests, including my partner’s high-risk
father, might be able at some later date to safely attend the social celebration of our decision to tie our lives to one another’s. We are now
cooped up in our apartment, "isolating," so that we may be able to visit his father, later, without endangering his health, if we ever make it back
to London. With any luck, we may all get to celebrate that wedding together one day after all. With any luck, our children will one day meet
their grandfather. Agamben laments that we are sacrificing "social relationships, work, even friendships, affections, and religious and political
convictions" to "the danger of getting sick." But we are not making sacrifices for the sake of anyone’s mere survival. We sacrifice because
sharing our joys and pains, efforts and leisure, with our loved ones — young and old, sick and healthy — is the very substance of these so-called
"normal conditions of life." "What is a society," Agamben asks, "that has no value other than survival?" Under
certain circumstances,
this is a good question; under these circumstances, it is a[n unaware] blind one. Is this the society
Agamben believes he is living in? When this philosopher looks around him, does he truly see nothing but
the fight for "bare life"? If so, Agamben’s "clarification" may be revealing in a way he hadn’t intended.
We might think of it as a very lucid example of "bare theory": the dressing up of outdated jargon as a
form of courageous resistance to unreflecting moral dogma. Sometimes it is advisable to hold off on
deploying the heavy theoretical machinery until one has looked around . If we are after wisdom about
how to live today, we should look elsewhere.

Agamben’s beliefs are similar to authoritarians, plus death outweighs

Christaens 20, PhD-student and teaching assistant at the Institute of Philosophy. He obtained his MA
and MPhil degrees in philosophy, specializing in contemporary political philosophy, and an MA in
comparative & international politics, working on EU and Russian politics, at KU Leuven, his research
focuses mainly on contemporary economic issues, such as financialization, socio-economic exclusion,
and free market competition, viewed from the lens of Italian and French critical theory (Foucault,
Deleuze, Agamben, post-operaismo, etc. (Tim Christaens, 3-26-2020, "Must Society be Defended from
Agamben?," Critical Legal Thinking, https://criticallegalthinking.com/2020/03/26/must-society-be-
defended-from-agamben/)
Many European countries have by now been in lockdown for more than a week. This has given everyone ample time to reflect on our current
condition. Many of the world’s leading critical thinkers have shared their thoughts with us through op-eds, blog posts, and so on. Among the
more troubling are three opinion pieces Giorgio Agamben wrote for his Italian publisher Quodlibet. As one could have expected, Agamben
vehemently opposes the use of the state of emergency to control this crisis . For the majority of patients,
COVID-19 poses no more trouble than a regular flu. Agamben thus fears that exceptional measures
pushed through today are dangerously disproportionate. If the reader thinks that makes Agamben
sound like coronavirus denialists such as Bolsonaro or Trump, then I must confess they are right . Just like
these authoritarian leaders sacrifice global health to their own egos, it seems like Agamben dangerously
underestimates the threat the coronavirus poses. So the question must be asked: must society be
defended from Agamben? For me, this problem is particularly urgent. I am a graduate student in philosophy writing my
dissertation about Agamben’s work. Should I, from now on, excuse myself for mentioning Agamben in my
research? Will I have to answer mean questions about him and the coronavirus on my PhD defense? I know I am not accountable for the
ramblings of a 77-year old man in Italy, but still, I cannot help but feel a bit responsible for whatever my dissertation topic writes. Taking to
heart his own statements about ‘abandonment’ as the exposure of people’s bare life to the decision over life and death, I cannot but
wonder whether the proposal of doing nothing – a position Agamben shared with the US, the UK, and
the Netherlands until a few days ago – is not more problematic than the lockdown we are now in. Is it
not the politicians pleading for sacrificing the weak and vulnerable for the sake of ‘group immunity’ who
are abandoning the population to the virus’ sovereign decision over life and death? Is it not obvious to Agamben that, today, going into
lockdown is riven with class privilege? Upper and middle classes can work from home, while workers, refugees, and the homeless
are left to fend for themselves. To give Agamben a fair chance, I will address each of his three arguments against
the deployment of the state of exception separately :

(1) Agamben, firstly, laments the fact that we value biological survival over all other social concerns at
the moment. It seems like populations are willing to give up everything – their jobs, their social life, seeing their families – in order to stay
alive. Agamben has a point that this shows just how much we have become permeated by the biopolitical imperative to value life above all else,
but so what? There is not much to enjoy from social contacts or seeing your family once you are dead. Biological survival is a
necessary condition for the cultivation of other social values, so it seems only appropriate that, in times
of need, survival comes first. On the other hand, Agamben’s indictment seems fair once we realize that the coronavirus is, in actual
fact, not very lethal. Only a small minority of patients develop strong symptoms and, among them, only a minority dies. Agamben, however,
misjudges the threat as one of survival or death. What makes the coronavirus so dangerous is not its
lethality, but its impenetrability. The problem with the coronavirus is its opaqueness to the governments trying to control its
spread. As Bifo wrote recently on Verso Blogs, “neither the immune system nor medical science know
anything about the agent. The unknown stops the machine, the biological agent turns into an info-virus,
and the info-virus unchains a psychotic reaction. ” COVID-19 operates as an info-virus that upsets governmental plans to keep
the population safe. Hospitals and clinics are ill-prepared to face this challenge due to years of budget cuts in health services. In that sense, it
is more appropriate to regard the recent declarations of the state of emergency as signs of institutional
breakdown rather than as a totalitarian ploy to exert domination over the population.

(2) Agamben’s second criticism is that the fear of contagion governments promote turns everyone into a
potential source of infection. During the War on Terror, everyone suddenly became a potential terrorist and could be treated
accordingly; nowadays, people suddenly become a potential health threat to each other. This not only grants governments the authority to
impose severe restrictions on even healthy citizens, but it also destroys social bonds. People no longer dare to give each other handshakes and
the Internet is bursting of messages from lonely people in quarantine begging for a hug. Agamben is right that physical contact is crucial for
social well-being. One of the major consequences of the lockdown will be a mental health crisis of unseen proportions. For many of us,
the isolation we experience now will have lasting effects for some time to come . On the other hand, Agamben
should also not exaggerate the problem. I do not believe people will hesitate to embrace their loved ones once
this crisis is over. The restrictions on social interaction are temporary and there is no reason to assume anything different. In the
meantime, solidarity is maintained through other means. Right now, my own university department is setting up a system to put lonely
students in lockdown in contact with each other. People
incessantly find new ways to help each other through these
times, whether it is singing Bella ciao from one’s balcony, sewing mouth caps for the local hospital, or
babysitting nurses’ and doctors’ children. Lamenting the breakdown of social bonds, like Agamben does,
vastly underestimates the viscosity with which the multitude sticks together .
(3) Agamben’s strongest argument is that the draconian emergency powers of today could become tomorrow’s apparatuses of oppression.
Usually, what starts as an extraordinary measure during a state of exception, becomes a permanent tool in the governmental arsenal once the
crisis is over. China is already normalizing some of its emergency measures to spy on its population. It has implemented an app-based system of
health codes that assign different colour codes to citizens depending on how closely they have been in contact with corona-affected areas.
Access to public transport and job facilities could be linked to this data. Public health can hence quickly serve as a pretext for ‘risk scoring’
citizens or even sabotaging political dissidents. Also in Western countries, a cluster of disaster capitalism is forming around the crisis. Private
companies have already started developing apps that combine geolocation data with health scores to monitor public life. As Agamben
mentions, universities are also switching to online teaching to minimize contagions, but what hinders them from regularizing online teaching?
Rather than investing in proper academic staff and offices, they could find it is much cheaper to pay an expert once for making an online
teaching module and afterwards pay a grad student peanuts to answer students’ questions online. Are the academics recording their courses at
home right now automating themselves out of a job?

All the while, the main tactic of leftist opposition has become impossible: public manifestations. Believing
that socialism is upon us
simply because governments are, in times of crisis, considering a universal basic income or universal
healthcare, is naïve. If we should have learned one thing from decades of austerity , it is that neoliberals never let
a serious crisis go to waste. Keynesian and Neo-Marxist policies might be considered in times of need, but they will quickly disappear in the
annals of history if there is no substantial political backdrop to solidify their effects. If the Left fails to grasp this momentum, it will be business
as usual once things go back to normal. But how do you organize opposition from the comfort of your home that exceeds free-floating
clicktivism? The
Left is confronted with a challenge of reconstructing the world after COVID-19 and has lost
the most powerful weapon in its arsenal. Corona has hitherto only changed the world in various ways; the point, now, is
to give it the correct interpretation to not let it go to waste.
 2NC — AT: COVID-19
Agamben’s statements on coronavirus should be ignored, but his broader analysis is
still valuable
— Word War corrected into “Wo[r]ld War”
van den Berge 20, Utrecht University (Lukas van den Berge. 4-2-2020, “Biopolitics and the
Coronavirus: Foucault, Agamben, Žižek,” Netherands Journal of Legal Philosophy, Vol. 49, No. 1, pages 3-
6)
As described by Michel Foucault in Discipline and Punish, measures to be taken in the case of an epidemic in the French town of Vincennes in
the seventeenth century include what is currently known as a full lockdown, Chinese style.1 The gates of the city are closed and people are
confined in their own houses, with the doors of each house being barred from the outside by representatives of the government. The streets
and other public spaces are occupied by a well-ordered militia of syndics and sentinels serving as the population’s meticulous guards and
inspectors. Foucault’s account of these measures serves as an overture to his description of panopticism as a modern form of government. As
Foucault has it, ‘the plague as a form, both real and imaginary, of disorder’ finally served to legitimate ‘the penetration of regulation into even
the smallest details of everyday life’.2 The haunting memory of epidemics and the chaos associated with it would thus have paved the way for
‘biopolitics’ as a system of constant surveillance and discipline in which governmental control pertains directly to the physical existence of
citizens.3 In related fashion, Giorgio Agamben has diagnosed modern policies and practices of state control over the bodies of citizens as the
‘biopolitical paradigm of the modern’, a ‘concealed matrix’ of contemporary political life that usually hides behind the civilized mask of liberal
democracy.4 In times of emergency, however, modern state power would tend to show its true face, resorting to the ‘state of exception’ in
which the bare life of citizens is subject to unmediated power.5 In Agamben’s view, the current response to the outbreak of the coronavirus in
west‐ ern countries is just another example of this. With terrorism exhausted as a legitimation for exceptional measures, the ‘invention of an
epidemic’ would now serve as an ideal pretext for scaling up such measures almost beyond limitation. In a weblog dating from 26 February
2020, with the number of confirmed corona cases in northern Italy quickly rising, Agamben defies some of the early decrees issued by the
government as ‘frenetic, irrational and entirely unfounded’. Those decrees would amount to a response that is completely disproportionate
with regard to an illness that is ‘not too different from the normal flus that affect us every year’.6 Understandably, Agamben’s defiance of
emergency measures and his assessment of Covid-19 as an ‘invented epidemic’ sparked fierce reactions. ‘Monitor and punish? Yes, please’,
Slovenian intellectual Slavoj Žižek contends in a recent reply.7 As Žižek has it, Agamben’s reaction is ‘the extreme form of a widespread Leftist
stance’ of dismissing any form of monitoring as repressive surveillance and any form of active governance as a clear proof of hidden
totalitarianism’. Such easy Foucauldian criticism, as Žižek astutely remarks, will not make the reality of the threat go away. Whereas the
privileged are most likely to come out of the crisis relatively unscathed, those already living under precarious circumstances will probably
receive the hardest blows, especially if the government forsakes to take active steps to reduce new infections. On similar grounds, Tim
Christiaens – a researcher from KU Leuven – even argued that ‘society must be defended from Agamben’ as he has now turned out to be a
‘coronavirus denialist’ who danger‐ ously underestimates the threat the virus poses.8 According
to Christiaens, Agamben’s
objections against the emergency measures of the Italian government are just the ‘ramblings of a 77-
year old man’ who should be deplatformed as soon as possible. Evidently, Agamben has been proven wrong in stating that Covid-19 is
hardly dif‐ ferent from the normal flu. Whereas patients suffering from flu die from that dis‐ ease in around 0.1% of the cases, the mortality
rate of Covid-19 is clearly much higher, with recent estimates ranging from 1 to 4%.9 The present situation on Italian intensive care units is
certainly not in line with Agamben’s dismissal of public concern on the outbreak of the coronavirus as a case of unwarranted mass hysteria.
That is not to say, however, that Agamben’s remarks on the governmen ‐ tal response to the outbreak
should be disparaged – as Christiaens does – as nothing but some incoherent statements of an elderly
philosopher. As Agamben himself explains in a blog post of 11 March, the current response to the outbreak could result in a ‘degeneration
of human relationships’ that may outlast the corona crisis itself.10 Out of fear of contagion, ‘our neighbour is abolished’, with real contact being
replaced by the exchange of digital messages as its poor substitute. Indeed, such replacement is a particular threat to the future of universities,
many of which tend to show themselves more than eager to transfer most of their lessons online – a much more cost-efficient way of teaching
anyway.11 In a statement dating from 17 March, Agamben further clarifies his legitimate concern about modern societies that tend to sacrifice
anything to security.12 In
order to facilitate effective action against the outbreak, many countries across the
globe have proclaimed the state of emergency . ‘We are in a war’ in which ‘nothing should divert us’ from fighting an ‘invisible
enemy’, as French president Macron put it in a televised address to the nation.13 As we have recently become habituated to live in a state of
perennial crisis and emergency, such belligerent talk of government officials can hardly strike us as unusual. With the protection of the ‘bare
life’ of citizens having been promoted to a governmental task that overrides everything else, most people do not seem to realize that their life
now runs the risk of being reduced to ‘purely biological condition’ that is bereft of its social and political dimensions. What is most worrisome,
however, is not what happens today, but what will come after the crisis. Just as a real war like Wo[r]ld War I has left us with barbed wire as a
harmful contribution to society, the imagined war against the virus may ultimately result in the continued use of harmful technologies that
curtail political life and restrict our freedom. In a friendly reaction to Agamben’s controversial blog post in February, Jean-Luc Nancy brings up a
personal anecdote.14 When doctors decided that Nancy needed a heart transplant, Agamben was one of the very few of his friends who
advised him not to listen to them. Now, almost thirty years later, Nancy is very happy that he has followed the advice of his doctors and not

it seems advisable for us not to ascribe too much

that of Agamben. In similar fashion,

weight to Agamben’s assessment of the corona crisis as far as it concerns his

medical expertise. With regard to the danger of exceptionalism becoming the rule rather than an
exception, however, his critique deserves to be taken very seriously. It seems likely that the coronavirus
will continue to bother humanity for at least the coming years, soon to be followed, for sure, by other threats to our security that
are as yet unknown. Let’s hope that critical voices like those of Agamben will prevent us from accepting
current emergency measures and biopolitical practices and policies as business as usual.

Their indict is takes his word out of context

Theodoropoulos 20, Freedom News (Panos Theodoropoulos, 4-25-2020, "Tug of class war: Agamben
vs Zizek on the impact of Covid-19," https://freedomnews.org.uk/tug-of-class-war-agamben-vs-zizek-on-
the-impact-of-covid-19/

Limits of the current critique

However — and this is where I believe that criticisms of Agamben are either myopic or outright malicious- Agamben
never said that we should keep on living as if nothing had changed . He never said that we should go out in the streets
and joyfully kiss each other in a jubilant proclamation of freedom and autonomy from authority. Agamben is warning about the
problematic possibility that some of the key characteristics of the current states of emergency are
expanded beyond the critical months required to contain the virus. Contrary to what most media outlets and leaders
want us to think, social distancing is far from a new phenomenon . What is new is its practical dimension. For is Margaret
Thatcher’s quote that “there is no such thing as society” not the most extreme manifestation of social distancing imaginable? Is austerity not
the economic manifestation of social distancing when the main public infrastructures that enable sociability, including youth clubs, libraries,
gyms, and schools are all decimated or shut down? The collapse of the main institutions fostering some semblance of community spirit in the
past, including trade unions, is one of the defining characteristics of the post-modern era. The rise of individualism and the concurrent retreat
from collective class narratives and understandings of self is a fundamental pillar of the neoliberal project enforced by governments and
businesses all over the world. This project, together with many before it, relies on creating and exacerbating divisions between people,
including those of race, class, nationality, sexuality, and so on. Indeed, the acute hypocrisy of today’s governments is laid bare when they blame
individuals for the anti-social behaviours which these same governments have patiently encouraged and incubated over at least three
generations! Agamben is not speaking out of context: he warns that the atomising, solidarity and
community-destroying trends that existed before the pandemic will probably be exacerbated during and
after it, and that governments will take advantage of it to enact measures which enable them to
advance their goals. Yes, social movements need to focus on the immediate needs at hand . These include
supporting workers who have lost their jobs, workers who are on the frontlines, and every vulnerable person that requires assistance that isn’t
provided by state structures. Yes, we need to observe social distancing and self-isolate if possible, for the duration of the critical phase of the
pandemic. And, most importantly, we need to try and politicise existing instances of collective, community-based solidarities in order to try and
overcome the total web of oppression in our lives. This includes organising initiatives, searching for new ways to communicate and collaborate,
and arguing for actions such as strikes, rent strikes etc. However, we cannot forget that we inhabit a world that is built on inequalities. And that
States, and most formal institutions, ultimately serve to protect and enhance these fundamental inequalities.