Faculty of Law, University of Lucknow

LEGAL PHILOSOPHY - II
Philosophy of Giorgio Agamben

Submitted By, Submitted To,

Anshumali Yadav, Dr. Nand Kishor

200013215013, Associate Professor, Faculty of Law,
Semester II, LL.M., University of Lucknow
2020-21
 Table of Contents

 Introduction........................................................................................................... 2

 Sovereign Power and Law .................................................................................... 2

 Homo Sacer ........................................................................................................... 3

 Bio-Politics ........................................................................................................... 5

 Zoē and Bios ......................................................................................................... 6

 The Camp .............................................................................................................. 7

 Conclusion ............................................................................................................ 9

 Reference............................................................................................................. 11

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 Philosophy of Giorgio Agamben

“One day humanity will play with law just as children play with disused objects, not in order to
restore them to their canonical use but to free them from it for good.”

― Giorgio Agamben, State of Exception

Introduction

Giorgio Agamben is an Italian philosopher best known for his work investigating the concepts of the
state of exception and homo sacer.

Political and legal theorists are becoming increasingly interested in the works of Giorgio Agamben.
His work ranges across many of philosophy's subfields, from set theory, the philosophy of language,
and aesthetics, to metaphysics and ontology. His turn to the question of sovereignty, however, has
heightened attention to his scholarship. Agamben's work on sovereignty is appealing because of the
parsimonious way that it seemingly captures our current political situation. He describes the
sovereign's role in constituting the normal legal system through its power to decide upon what is
exceptional to its order. Law is withheld or suspended from the exception. Those captured within the
exception face sovereign power without the mediation of legal rights, and are called "bare life" or
homo sacer.

Agamben’s work does not follow a straightforward chronological path of development either
conceptually or thematically. Instead, his work constitutes an elaborate and multifaceted recursive
engagement with the problems introduced into Western philosophy.

Agamben's work on sovereignty is appealing because of the parsimonious way that it seemingly
captures our current political situation. He describes the sovereign's role in constituting the normal
legal system through its power to decide upon what is exceptional to its order. Law is withheld or
suspended from the exception. Those captured within the exception face sovereign power without the
mediation of legal rights, and are called "bare life" or homo sacer.

Sovereign Power and Law

Sovereign power, Agamben argues, establishes itself through the production of a political order based
on the exclusion of bare, human life. This it achieves through the enactment of the exception in which

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the law is suspended, withdrawn from the human being1 who is stripped of legal status and transformed
in relation to sovereign power into a bare life without rights. Bare life, encompassed in the exception,
inhabits the threshold of the juridico-political community.

The sovereign exception, Agamben shows, gives rise to the juridical order. ‘The rule, suspending itself,
gives rise to the exception’ – that is, the juridical order, suspending its own validity, produces the
exception of bare life – ‘and, maintaining itself in relation to the exception, first constitutes itself as a
rule. Upon this (inclusive) exclusion of bare life, Agamben argues, the Western State itself is
constituted.

If it is the sovereign who, insofar as he decides on the state of exception, has the power to decide which
life may be killed without commission of homicide, in the age of bio-politics this power becomes
emancipated from the state of exception and transformed into the power to decide the point at which
life ceases to be politically relevant. When life becomes the supreme political value, not only is the
problem of life's non-value thereby posed, it is as if the ultimate ground of sovereign power were at
stake in this decision. In modern bio-politics, sovereign is he who decides on the value or non-value
of life as-such

Homo Sacer

Homo sacer (Latin for "the sacred man" or "the accursed man") is a figure of Roman law: a person
who is banned and may be killed by anybody, but may not be sacrificed in a religious ritual2. The homo
sacer could thus also simply mean a person expunged from society and deprived of all rights and all
functions in civil religion. Homo sacer is defined in legal terms as someone who can be killed without
the killer being regarded as a murderer; and a person who cannot be sacrificed. Homo sacer ‘is in a
continuous relationship with the power that banished him precisely insofar as he is at every instant
exposed to an unconditional threat of death’

Undoubtedly, Homo Sacer: Sovereign Power and Bare Life is Agamben’s best-known work, and
probably also the most controversial. It is in this book that Agamben develops his analysis of the
condition of biopolitics, first identified by Michel Foucault in the first volume of his History of
Sexuality series and associated texts.

1
The juridical order ‘withdraws from the exception bare life and abandons it’
2
Agamben, Giorgio. Heller-Roazen, trans. Homo Sacer: Sovereign Power and Bare Life Stanford, Stanford University Press,
1998.

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In brief, the project is a response to questions surrounding totalitarianism and bio-politics. Agamben
develops his analysis of the condition of bio-politics. According to Foucault, modern power is
characterized by a fundamentally distinct logic from that of sovereign power.3 the fundamental
principle of the former is the sovereign right over life and death, while modern power assumes a
productive relation to life, captured in the dictum “fostering life or disallowing it.” Bio-politics is an
instrument for molding life and keeping it alive. According to the French philosopher, this shift from
sovereign power to bio-power4 is what inaugurates modernity. For Foucault, the “threshold of
modernity” was reached with the transition from sovereign power to biopower, in which the “new
political subject” of the population became the target of a regime of power that operates through
governance of the vicissitudes of biological life itself. Thus, in his critical revision of Aristotle,
Foucault writes that “for millennia, man remained… a living animal with the additional capacity for a
political existence; modern man is an animal whose politics places his existence as a living being in
question”5.

From the outset of the Homo Sacer project, Agamben confronts this clear distinction and suggests that
sovereignty and bio-power are fundamentally inter-connected. According to Agamben, the production
of biological life is the first and elementary objective of sovereign power.

According to Agamben, biopower, which takes the bare lives of the citizens into its political
calculations, may be more marked in the modern state, but has essentially existed since the beginnings
of sovereignty in the West, since this structure of ex-ception is essential to the core concept of
sovereignty.

What distinguishes modern democracy from the Ancient polis then, is not so much the integration of
biological life into the sphere of politics, but rather, the fact that modern State power brings the nexus
between sovereignty and the biopolitical body to light in an unprecedented way. This is because in
modern democracies, that which was originally excluded from politics as the exception that stands
outside but founds the law has now become the norm.

It might be argued that the key motivation within Homo Sacer is not so much an attempt to correct or
complete Foucault’s account of biopolitics, as an attempt to complete Benjamin’s critique of Schmitt.
In Political Theology, Carl Schmitt—the German jurist infamous for joining the Nazi party and

3
Foucault, M., 1990. The History of Sexuality, Volume 1: An Introduction. Translated by R. Hurley. London: Penguin.
4
It relates to the practice of modern nation states and their regulation of their subjects through "an explosion of
numerous and diverse techniques for achieving the subjugations of bodies and the control of populations", ibid.
5
Supra note 2, p. 143

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becoming one of its strongest intellectual supporters—summarizes his strongly decisionistic account
of sovereignty by claiming that the sovereign is the one that decides on the exception. For Schmitt, it
is precisely in the capacity to decide on whether a situation is normal or exceptional, and thus whether
the law applies or not—since the law requires a normal situation for its application—that sovereignty
is manifest. Against this formulation of sovereignty, Benjamin posits in his “Theses on the Philosophy
of History” that the state of emergency has in fact become the rule. Further, what is required is the
inauguration of a real state of exception in order to combat the rise of Fascism, here understood as a
nihilistic emergency that suspends the law while leaving it in force.

In addressing this conflict between Schmitt and Benjamin, Agamben argues that in contemporary
politics, the state of exception identified by Schmitt in which the law is suspended by the sovereign,
has in fact become the rule. This is a condition that he identifies as one of abandonment, in which the
law is in force but has no content or substantive meaning—it is “in force without significance.”

Bio-Politics

Michel Foucault identified a transition in modernity by which the State increasingly took as its task
the care and regulation of biological, human life itself. The establishment, beginning in the 17th
century, of what Foucault terms ‘biopower’, a regularising technology of power that ‘distribut[es] the
living in the domain of value and utility’6, signifies for him the emergence of ‘a “biopolitics” of the
human race’7

Biopower is distinguished for Foucault from sovereign power. This new technology of power, he
argues, ‘has to qualify, measure, appraise, and hierarchize, rather than display itself in its murderous
splendor’8. As such, biopolitics begins with the emergence of biopower in modernity. Agamben,
however, offers a corrective to Foucault’s theory: sovereign power is itself already biopolitical, based
on the constitution of bare life as the threshold of the political order. For Agamben, the emergence of
the technology of biopower signifies, not a break in the history of Western politics, but the expansion
of the existing biopolitical imperative of the State, as bare life moves from the periphery to the centre
of the State’s concerns, entering in modernity into the political order as the exception increasingly

6
Foucault, M., 1990. The History of Sexuality, Volume 1: An Introduction. Translated by R. Hurley. London: Penguin., p.
144
7
Foucault, M., 2003. ‘Society Must Be Defended’, Lectures at the Collège de France, 1975-76. Translated by D. Macey.
M. Bertani and A. I. Davidson eds. London: Penguin.
8
Supra note 6

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becomes the rule.9 ‘Placing biological life at the center of its calculations, the modern State does
nothing other than bring to light the secret tie uniting power and bare life’10.

The production of bare life through the exception, and the preoccupation of State power with the
management of zoē, advance increasingly and in parallel throughout modernity, reaching an apex in
the 20th century as the concentration camp system of the totalitarian State attempted the first ‘normal
and collective organization of human life founded solely on bare life’11

Zoē and Bios

For Agamben, the fact that the exception has become the norm or rule of contemporary politics means
that it is not the case that only some subjects are abandoned by the law; rather, he states that in our
age, “we are all virtually homines sacri.”12 Those who are captured in the sovereign ban and stripped
of all legal status, find themselves, by the same act, banned from the political community. In this way,
the sovereign decides which lives will be recognised as belonging to the community of political beings
and which will be classified only in terms of biological fact. The basis of this distinction is addressed
by Agamben with recourse to the two terms used by the Greeks to distinguish between forms of life:
zoē, ‘natural reproductive life’ confined to the private sphere, and bios, ‘a qualified form of life’,
political life.13

As provocative as it is, understanding this claim also requires an appreciation of the notion of “bare
life” that Agamben develops from the Ancient Greek distinction between natural life—zoe—and a
particular form of life—bios, especially as it is articulated in Aristotle’s account of the origins of the
polis. In fact, Agamben notes in Nichomachean Ethics14, Aristotle makes three distinctions within
bios: the contemplative life of the philosopher, bios theoretiko; the life of pleasure, bios apolaustikos;
and political life, bios politikos.

The importance of this distinction in Aristotle is that it allows for the relegation of natural life to the
domain of the household (oikos), while also allowing for the specificity of the good life characteristic
of participation in the polis—bios politikos. More importantly though, for Agamben, this indicates the
fact that Western politics is founded upon that which it excludes from politics—the natural life that is

9
Agamben, G., 1998. Homo Sacer: Sovereign Power and Bare Life. Translated by D. Heller-Roazen. Stanford, California:
Stanford University Press, p. 09
10
Ibid, p. 06
11
Ibid, p 135.
12
Ibid, p 115
13
Ibid.
14
The Nicomachean Ethics, United Kingdom: G. Bell and sons, 1889.

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simultaneously set outside the domain of the political but nevertheless implicated inbios politicos. The
question arises, then, of how life itself or natural life is politicized. The answer to this question is
through abandonment to an unconditional power of death, that is, the power of sovereignty. It is in this
abandonment of natural life to sovereign violence and Agamben sees the relation of abandonment that
obtains between life and the law as “originary” that “bare life” makes its appearance. For bare life is
not natural life per se though it is often confused with it in critical readings of Agamben, partly as a
consequence of Agamben’s own inconsistency but rather, it is the politicized form of natural life. Being
neither bios nor zoe, then, bare life emerges from within this distinction and can be defined as “life
exposed to death,” especially in the form of sovereign violence.

Those who are banned from the domain of political beings are reduced by the sovereign to life defined
only in terms of zoē15, recognised by the sovereign only as biological beings. The separation of zoē
from bios, and the production of a bare, human life as a product of sovereign power can be said to
undergo a transformation in modernity as zoē, or biological life, is repositioned inside the polis,
becoming the focus of the State’s organisational power. This process, rooted in classical politics and
extending into the present, indicates, for Agamben, a Western politics that has constituted itself from
its beginnings as a biopolitics.16

The Camp

The empirical point of conjuncture of these two theses on the exception and on the production of bare
life is the historical rise of the concentration camp, which, Agamben argues, constitutes the state of
exception par excellence. As such though, it is not an extraordinary situation in the sense of entailing
a fundamental break with the political rationality of modernity, but in fact reveals the ‘“nomos of the
modern’” and the increasing convergence of democracy and totalitarianism. According to Agamben,
the camp is the space opened when the exception becomes the rule or the normal situation, as was the
case in Germany in the period immediately before and throughout World War 2. Further, what is
characteristic of the camp is the indistinguishability of law and life, in which bare life becomes the
“threshold in which law constantly passes over into fact and fact into law”17. This indiscernability of
life and law effectively contributes to a normative crisis, for here it is no longer the case that the rule
of law bears upon or applies to the living body, but rather, the living body has become “the rule and

15
Supra note 9, p 183
16
Ibid, p 181
17
Ibid, p 171

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criterion of its own application”18 thereby undercutting recourse to the transcendence or independence
of the law as its source of legitimacy. What is especially controversial about this claim is that if the
camps are in fact the “nomos” or “hidden matrix” of modern politics, then the normative crisis evident
in them is not specifically limited to them, but is actually characteristic of our present condition, a
condition that Agamben describes as one of “imperfect nihilism.”

The historical concentration camp, such as those of the Spanish in Cuba or the British in South Africa,
Agamben writes, were born ‘out of a state of exception and martial law’19. Writing of the Nazi State,
Agamben argues that a transition has occurred, that the concentration camp system of 20th century
totalitarianism is now the product of a ‘willed’ state of exception.

Under modern liberal democracy, the state of exception, once a temporary suspension of law, became
a stable, generalised condition: ‘the declaration of the state of exception has gradually been replaced
by an unprecedented generalization of the paradigm of security as the normal technique of
government’.20 This tendency provided the totalitarianisms which emerged in the 20th century with the
framework by which rule by a permanent state of emergency was possible.21 As the site in which the
state of exception is ‘given a permanent spatial arrangement’22, the concentration camp is, for
Agamben, the paradigmatic space of this new political arrangement. It is ‘the space that is opened up
when the state of exception begins to become the rule’.23

The camp, brought into being through the enactment of the state of exception, is distinctly the product
of sovereign power. It is the space in which bare life is most clearly seized by the State. ‘Insofar as its
inhabitants were stripped of every political status and wholly reduced to bare life, the camp was […]
the most absolute biopolitical space ever to have been realized, in which power confronts nothing but
pure life, without any mediation’24. Agamben quotes Arendt who writes that the camp is the space in
which ‘everything is possible’. The camp cannot be said to be defined by the atrocities that take place
there, but by the potential that exists that they may. This is the condition to which the bare life of homo
sacer is banished. As such, the camp is realised wherever bare life abandoned by law is produced.

18
Ibid, p 173
19
Ibid, p 167
20
Agamben, G., 2005. State of Exception. Translated by K. Attell. Chicago: University of Chicago Press., p. 5
21
Ibid, p 2
22
Supra note 9, p 169
23
Ibid
24
Ibid, p 171

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Agamben locates the camp in such spaces as the Stadio della Vittoria in Bari to which thousands of
Albanian immigrants were consigned in 1991 before being forcibly deported, and the Vélodrome
d’Hiver where in 1942 Jews were detained following mass arrests by the French police before being
sent to Auschwitz. Agamben’s analysis of the process by which the state of exception has become
generalised shows, however, that our conception of the camp should not be limited to historico-
geographical instances. Rather, the camp, as the space of the exception, must be understood as an ever-
present condition existing in potential within the political order.

Today, as politics has been transformed ‘into the realm of bare life (that is, into a camp)’25, and the
exception has been realised as a permanent and stable condition, ‘all citizens can be said […] to appear
virtually as homines sacri‘26.

Conclusion

The work of Giorgio Agamben, one of Italy's most important and original philosophers, has been based
on an uncommon erudition in classical traditions of philosophy and rhetoric, the grammarians of late
antiquity, Christian theology, and modern philosophy. In Homo Sacer, Agamben aims to connect the
problem of pure possibility, potentiality, and power with the problem of political and social ethics in
a context where the latter has lost its previous religious, metaphysical, and cultural grounding. Taking
his cue from Foucault's fragmentary analysis of biopolitics, Agamben probes with great breadth,
intensity, and acuteness the covert or implicit presence of an idea of biopolitics in the history of
traditional political theory. He argues that from the earliest treatises of political theory, notably in
Aristotle's notion of man as a political animal, and throughout the history of Western thinking about
sovereignty (whether of the king or the state), a notion of sovereignty as power over "life" is implicit.

The reason it remains merely implicit has to do, according to Agamben, with the way the sacred, or
the idea of sacrality, becomes indissociable from the idea of sovereignty. Drawing upon Carl Schmitt's
idea of the sovereign's status as the exception to the rules he safeguards, and on anthropological
research that reveals the close interlinking of the sacred and the taboo, Agamben defines the sacred
person as one who can be killed and yet not sacrificed—a paradox he sees as operative in the status of
the modern individual living in a system that exerts control over the collective "naked life" of all
individuals. In Homo Sacer, Agamben accepts Carl Schmitt's theory of state sover normal juridical
order. For Schmitt, and therefore for Agamben's understanding of sovereignty, it is clear where

25
Ibid, p 120
26
Ibid, p 111

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sovereignty lies insofar as the sovereign is not hampered by checks and balances. It is the unitary place
of decision.' For Agamben, the exception is a form of exclusion. The rule applies to the exception by
withdrawing from it and by no longer applying to it, thereby taking the exception outside the order.'
The relation of the legal order to the exception, then, is that of the ban.

The modem state undertakes ever-expanding and proliferating attempts to manage its bio-political
foundations whereby birth is the condition for full citizenship, attempts indicating the state is entering
a generalized crisis and that lead Agamben to reiterate Walter Benjamin's aphorism observing the state
of exception is now becoming the rule. For Agamben, the concentration camp, the "pure, absolute, and
impass able biopolitical space," is the "hidden paradigm of the political space of modernity" and the
"hidden matrix of the politics in which we are still living". Despite the generalized indistinction
between inside and outside, state power continues its attempt to separate the human from bare life as
it con stantly redraws the line distinguishing inside from outside-a project whose futility was proved
by the most radical attempt to force the impossi ble into reality in the Nazi camps.

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Reference

 Agamben, G., 1995. ‘We Refugees’. Translated by M. Rocke. Symposium. 49(2), Summer
 Agamben, G., 1998. Homo Sacer: Sovereign Power and Bare Life. Translated by D. Heller-
Roazen. Stanford, California: Stanford University Press.
 Agamben, G., 2005. State of Exception. Translated by K. Attell. Chicago: University of
Chicago Press.
 Agamben, G., 2007. ‘The Work of Man’. In: M. Calarco and S. DeCaroli eds., 2007. Giorgio
Agamben: Sovereignty and Life. Stanford, California: Stanford University Press.
 Foucault, M., 1990. The History of Sexuality, Volume 1: An Introduction. Translated by R.
Hurley. London: Penguin.
 Foucault, M., 2003. ‘Society Must Be Defended’, Lectures at the Collège de France, 1975-76.
Translated by D. Macey. M. Bertani and A. I. Davidson eds. London: Penguin.
 https://criticallegalthinking.com/2015/07/02/sovereign-exception-notes-on-the-thought-of-
giorgio-agamben/
 https://egs.edu/biography/giorgio-agamben/
 https://iep.utm.edu/agamben/#H3
 https://en.wikipedia.org/wiki/Giorgio_Agamben

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