Homo Sacer: Sovereign Power and Bare Life PDF

Giorgio Agamben HOMO SACER Sovereign Power and Bare Life Homo Sacer  Translated by Daniel Heller-Roazen Stanford University Press Stanford California 1998 Homo Sacer: Sovereign Power and Bare Life...

Giorgio Agamben HOMO SACER Sovereign Power and Bare Life Homo Sacer  Translated by Daniel Heller-Roazen Stanford University Press Stanford California 1998 Homo Sacer: Sovereign Power and Bare Life was originally published as Homo sacer. Il potere sovrano e la nuda vita, © 1995 Giulio Einaudi editore s.p.a. Stanford University Press-Stanford, California © 1998 by the Board of Trustees of the Leland Stanford Junior University Printed in the United States of America // |] !r4t3 pdf // 4nT1(o|] YR!6H7 // 2 o 0 7 // by s|] r3ad d3p7 // u5345u8v3r5! \/ 3pur|] o 535 // please excuse the remaining scan glitches INDEX INTRODUCTION.............................................................................................................................. 9 PART ONE: The Logic of Sovereignty................................................................................................. 15 § 1 The Paradox of Sovereignty........................................................................................................... 17 § 2 ‘Nomos Basileus’........................................................................................................................... 24 § 3 Potentiality and Law..................................................................................................................... 29 § 4 Form of Law................................................................................................................................. 34 Threshold..................................................................................................................................... 41 PART TWO: Homo Sacer................................................................................................................... 45 § 1 Homo Sacer.................................................................................................................................. 47 § 2 The Ambivalence of the Sacred..................................................................................................... 49 § 3 Sacred Life.................................................................................................................................... 52 § 4 ‘Vitae Necisque Potestas’............................................................................................................... 55 § 5 Sovereign Body and Sacred Body.................................................................................................. 57 § 6 The Ban and the Wolf.................................................................................................................. 63 Threshold..................................................................................................................................... 67 PART THREE: The Camp As Biopolitical Paradigm of the Modern............................................... 69 § 1 The Politicization of Life............................................................................................................... 71 § 2 Biopolitics and the Rights of Man................................................................................................. 75 § 3 Life That Does Not Deserve to Live.............................................................................................. 80 § 4 ‘Politics, or Giving Form to the Life of a People’........................................................................... 84 § 5 VP................................................................................................................................................ 89 § 6 Politicizing Death......................................................................................................................... 92 § 7 The Camp as the ‘Nomos’ of the Modern..................................................................................... 95 Threshold................................................................................................................................... 102 Bibliography....................................................................................................................................... 107 Das Recht hat kein Dasein für sich, sein Wesen vielmehr ist das Leben der Menschen selbst, von einer Seite angesehen. – Savigny Law has no existence for itself; rather its essence lies, from a certain perspective, in the very life of men. Ita in iure civitatis, civiumque officiis investigandis opus est, non quidem ut dissolvatur civitas, sed tarnen ut tanquam dissoluta consideretur, id est, ut qualis sir natura humana, quibus rebus ad civitatem compaginandam apta vei inepta sir, et quomodo homines inter se componi debeant, qui coalescere volunt, recte intelligatur. – Hobbes To make a more curious search into the rights of States, and duties of Subjects, it is necessary, (I say not to take them in sunder, but yet that) they be so considered, as if they were dissolved, (i.e.) that wee rightly understand what the quality of humane nature is, in what matters it is, in what not fit to make up a civill government, and how men must be agreed among themselves, that intend to grow up into a well-grounded State. Euretē moi he entolē hē eis zoēn, autē eis thanaton. – Saint Paul And the commandment, which was ordained to life, I found to be unto death. INTRODUCTION The Greeks had no single term to express what we mean by the word “life.” They used two terms that, although traceable to a common etymological root, are semantically and morphologically distinct: zoē, which expressed the simple fact of living common to all living beings (animals, men, or gods), and bios, which indicated the form or way of living proper to an individual or a group. When Plato mentions three kinds of life in the Philebus, and when Aristotle distinguishes the contemplative life of the philosopher (bios theōrētikos) from the life of pleasure (bios apolaustikos) and the political life (bios politikos) in the Nichomachean Ethics, neither philosopher would ever have used the term zoē (which in Greek, significantly enough, lacks a plural). This follows from the simple fact that what was at issue for both thinkers was not at all simple natural life but rather a qualified life, a particular way of life. Concerning God, Aristotle can certainly speak of a zoē aristē kai aidios, a more noble and eternal life (Metaphysics, 1072b, 28), but only insofar as he means to underline the significant truth that even God is a living being (similarly, Aristotle uses the term zoē in the same context – and in a way that is just as meaningful – to define the act of thinking). But to speak of a zoē politikē of the citizens of Athens would have made no sense. Not that the classical world had no familiarity with the idea that natural life, simple zoē as such, could be a good in itself. In a passage of the Politics, after noting that the end of the city is life according to the good, Aristotle expresses his awareness of that idea with the most perfect lucidity: This [life according to the good] is the greatest end both in common for all men and for each man separately. But men also come together and maintain the political community in view of simple living, because there is probably some kind of good in the mere fact of living itself [kata to zēn auto monon]. If there is no great difficulty as to the way of life [kata ton bion], clearly most men will tolerate much suffering and hold on to life [zoē] as if it were a kind of serenity [euēmeria, beautiful day] and a natural sweetness. (1278b, 23-31) In the classical world, however, simple natural life is excluded from the polis in the strict sense, and remains confined – as merely reproductive life – to the sphere of the oikos, “home” (Politics, 1252a, 26- 35). At the beginning of the Politics, Aristotle takes the greatest care to distinguish the oikonomos (the head of an estate) and the despotes (the head of the family), both of whom are concerned with the reproduction and the subsistence of life, from the politician, and he scorns those who think the difference between the two is one of quantity and not of kind. And when Aristotle defined the end of the perfect community in a passage that was to become canonical for the political tradition of the West (1252b, 30), he did so precisely by opposing the simple fact of living (to zēn) to politically qualified life (to eu zēn): ginomenē oun tou zēn heneken, ousa de tou eu zēn, “born with regard to life, but existing essentially with regard to the good life” (in the Latin translation of William of Moerbeke, which both Aquinas and Marsilius of Padua had before them: facta quidem igitur vivendi gratia, existens autem gratia bene vivendi). It is true that in a famous passage of the same work, Aristotle defines man as a politikon zōon (Politics, 1253a, 4). But here (aside from the fact that in Attic Greek the verb bionai is practically never used in the present tense), “political” is not an attribute of the living being as such, but rather a specific difference that determines the genus zōon. (Only a little later, after all, human politics is distinguished from that of other 10 living beings in that it is founded, through a supplement of politicity [policita] tied to language, on a community not simply of the pleasant and the painful but of the good and the evil and of the just and the unjust.) Michel Foucault refers to this very definition when, at the end of the first volume of The History of Sexuality, he summarizes the process by which, at the threshold of the modern era, natural life begins to be included in the mechanisms and calculations of State power, and politics turns into biopolitics. “For millennia,” he writes, “man remained what he was for Aristotle: a living animal with the additional capacity for political existence; modern man is an animal whose politics calls his existence as a living being into question” (La volonté, p. 188). According to Foucault, a society’s “threshold of biological modernity” is situated at the point at which the species and the individual as a simple living body become what is at stake in a society’s political strategies. After 1977, the courses at the Collège de France start to focus on the passage from the “territorial State” to the “State of population” and on the resulting increase in importance of the nation’s health and biological life as a problem of sovereign power, which is then gradually transformed into a “government of men” (Dits et écrits, 3: 719). “What follows is a kind of bestialization of man achieved through the most sophisticated political techniques. For the first time in history, the possibilities of the social sciences are made known, and at once it becomes possible both to protect life and to authorize a holocaust.” In particular, the development and triumph of capitalism would not have been possible, from this perspective, without the disciplinary control achieved by the new bio-power, which, through a series of appropriate technologies, so to speak created the “docile bodies” that it needed. Almost twenty years before The History of Sexuality, Hannah Arendt had already analyzed the process that brings homo laborans – and, with it, biological life as such – gradually to occupy the very center of the political scene of modernity. In The Human Condition, Arendt attributes the transformation and decadence of the political realm in modern societies to this very primacy of natural life over political action. That Foucault was able to begin his study of biopolitics with no reference to Arendt’s work (which remains, even today, practically without continuation) bears witness to the difficulties and resistances that thinking had to encounter in this area. And it is most likely these very difficulties that account for the curious fact that Arendt establishes no connection between her research in The Human Condition and the penetrating analyses she had previously devoted to totalitarian power (in which a biopolitical perspective is altogether lacking), and that Foucault, in just as striking a fashion, never dwelt on the exemplary places of modern biopolitics: the concentration camp and the structure of the great totalitarian states of the twentieth century. Foucault’s death kept him from showing how he would have developed the concept and study of biopolitics. In any case, however, the entry of zoē into the sphere of the polis – the politicization of bare life as such – constitutes the decisive event of modernity and signals a radical transformation of the political- philosophical categories of classical thought. It is even likely that if politics today seems to be passing through a lasting eclipse, this is because politics has failed to reckon with this foundational event of modernity. The “enigmas” (Furet, L’Allemagne nazi, p.7) that our century has proposed to historical reason and that remain with us (Nazism is only the most disquieting among them) will be solved only on the terrain – biopolitics – on which they were formed. Only within a biopolitical horizon will it be possible to decide whether the categories whose opposition founded modern politics (right/left, private/public, absolutism/democracy, etc.) – and which have been steadily dissolving, to the point of entering today into a real zone of indistinction – will have to be abandoned or will, instead, eventually regain the meaning they lost in that very horizon. And only a reflection that, taking up Foucault’s and Benjamins suggestion, thematically interrogates the link between bare life and politics, a link that secretly governs the modern ideologies seemingly most distant from one another, will be able to bring the political out of its concealment and, at the same time, return thought to its practical calling. One of the most persistent features of Foucault’s work is its decisive abandonment of the traditional approach to the problem of power, which is based on juridico-institutional models (the definition of sovereignty, the theory of the State), in favor of an unprejudiced analysis of the concrete ways in which power penetrates subjects’ very bodies and forms of life. As shown by a seminar held in 1982 at the  Introduction 11 University of Vermont, in his final years Foucault seemed to orient this analysis according to two distinct directives for research: on the one hand, the study of the political techniques (such as the science of the police) with which the State assumes and integrates the care of the natural life of individuals into its very center; on the other hand, the examination of the technologies of the self by which processes of subjectivization bring the individual to bind himself to his own identity and consciousness and, at the same time, to an external power. Clearly these two lines (which carry on two tendencies present in Foucault’s work from the very beginning) intersect in many points and refer back to a common center. In one of his last writings, Foucault argues that the modem Western state has integrated techniques of subjective individualization with procedures of objective totalization to an unprecedented degree, and he speaks of a real “political ‘double bind,’ constituted by individualization and the simultaneous totalization of structures of modern power” (Dits et écrits, 4: 229-32). Yet the point at which these two faces of power converge remains strangely unclear in Foucault’s work, so much so that it has even been claimed that Foucault would have consistently refused to elaborate a unitary theory of power. If Foucault contests the traditional approach to the problem of power, which is exclusively based on juridical models (“What legitimates power?”) or on institutional models (“What is the State?”), and if he calls for a “liberation from the theoretical privilege of sovereignty” in order to construct an analytic of power that would, not take law as its model and code, then where, in the body of power, is the zone of indistinction (or, at least, the point of intersection) at which techniques of individualization and totalizing procedures converge? And, more generally, is there a unitary center in which the political “double bind” finds its raison d’être? That there is a subjective aspect in the genesis of power was already implicit in the concept of servitude volontaire in Etienne de La Boétie. But what is the point at which the voluntary servitude of individuals comes into contact with objective power? Can one be content, in such a delicate area, with psychological explanations such as the suggestive notion of a parallelism between external and internal neuroses? Confronted with phenomena such as the power of the society of the spectacle that is everywhere transforming the political realm today, is it legitimate or even possible to hold subjective technologies and political techniques apart? Although the existence of such a line of thinking seems to be logically implicit in Foucault’s work, it remains a blind spot to the eye of the researcher, or rather something like a vanishing point that the different perspectival lines of Foucault’s inquiry (and, more generally, of the entire Western reflection on power) converge toward without reaching. The present inquiry concerns precisely this hidden point of intersection between the juridico- institutional and the biopolitical models of power. What this work has had to record among its likely conclusions is precisely that the two analyses cannot be separated, and that the inclusion of bare life in the political realm constitutes the original – if concealed – nucleus of sovereign power. It can even be said that the production of a biopolitical body is the original activity of sovereign power. In this sense, biopolitics is at least as old as the sovereign exception. Placing biological life at the center of its calculations, the modern State therefore does nothing other than bring to light the secret tie uniting power and bare life, thereby reaffirming the bond (derived from a tenacious correspondence between the modern and the archaic which one encounters in the most diverse spheres) berween modern power and the most immemorial of the arcana imperii. If this is true, it will be necessary to reconsider the sense of the Aristotelian definition of the polis as the opposition between life (zēn) and good life (eu zēn). The opposition is, in fact, at the same time an implication of the first in the second, of bare life in politically qualified life. What remains to be interrogated in the Aristotelian definition is not merely – as has been assumed until now – the sense, the modes, and the possible articulations of the “good life” as the telos of the political. We must instead ask why Western politics first constitutes itself through an exclusion (which is simultaneously an inclusion) of bare life. What is the relation between politics and life, if life presents itself as what is included by means of an exclusion? The structure of the exception delineated in the first part of this book appears from this perspective to be consubstantial with Western politics. In Foucault’s statement according to which man was, for Aristotle, a “living animal with the additional capacity for political existence,” it is therefore precisely the meaning of this “additional capacity” that must be understood as problematic. The peculiar phrase “born 12 with regard to life, but existing essentially with regard to the good life” can be read not only as an implication of being born (ginomenē) in being (ousa) but also as an inclusive exclusion (an exceptio) of zoē in the polis, almost as if politics were the place in which life had to transform itself into good life and in which what had to be politicized were always already bare life. In Western politics, bare life has the peculiar privilege of being that whose exclusion founds the city of men. It is not by chance, then, that a passage of the Politics situates the proper place of the polis in the transition from voice to language. The link between bare life and politics is the same link that the metaphysical definition of man as “the living being who has language” seeks in the relation between phonē and logos: Among living beings, only man has language. The voice is the sign of pain and pleasure, and this is why it belongs to other living beings (since their nature has developed to the point of having the sensations of pain and pleasure and of signifying the two). But language is for manifesting the fitting and the unfitting and the just and the unjust. To have the sensation of the good and the bad and of the just and the unjust is what is proper to men as opposed to other living beings, and the community of these things makes dwelling and the city. (1253a, 10-18) The question “In what way does the living being have language?” corresponds exactly to the question “In what way does bare life dwell in the polis?” The living being has logos by taking away and conserving its own voice in it, even as it dwells in the polis by letting its own bare life be excluded, as an exception, within it. Politics therefore appears as the truly fundamental structure of Western metaphysics insofar as it occupies the threshold on which the relation between the living being and the logos is realized. In the “politicization” of bare life – the metaphysical task par excellence – the humanity of living man is decided. In assuming this task, modernity does nothing other than declare its own faithfulness to the essential structure of the metaphysical tradition. The fundamental categorial pair of Western politics is not that of friend/enemy but that of bare life/political existence, zoē/bios, exclusion/inclusion. There is politics because man is the living being who, in language, separates and opposes himself to his own bare life and, at the same time, maintains himself in relation to that bare life in an inclusive exclusion. 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 [ordinamento] 1 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 tests 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 zoē in the polis – 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 zoē, 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 1 “Order” renders the Italian ordinamento, which carries the sense not only of order but of political and juridical rule, regulation, and system. The word ordinamento is also the Italian translation of Carl Schmitts Ordnung. Where the author refers to ordinamento as Ordnung, the English word used is the one chosen by Schmitts translators, “ordering.” – Trans.  Introduction 13 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. If anything characterizes modern democracy as opposed to classical democracy, then, it is that modern democracy presents itself from the beginning as a vindication and liberation of zoē, and that it is constantly trying to transform its own bare life into a way of life and to find, so to speak, the bios of zoē. Hence, too, modern democracy’s specific aporia: it wants to put the freedom and happiness of men into play in the very place – “bare life” – that marked their subjection. Behind the long, strife-ridden process that leads to the recognition of rights and formal liberties stands once again the body of the sacred man with his double sovereign, his life that cannot be sacrificed yet may, nevertheless, be killed. To become conscious of this aporia is not to belittle the conquests and accomplishments of democracy. It is, rather, to try to understand once and for all why democracy, at the very moment in which it seemed to have finally triumphed over its adversaries and reached its greatest height, proved itself incapable of saving zoē, to whose happiness it had dedicated all its efforts, from unprecedented ruin. Modern democracy’s decadence and gradual convergence with totalitarian states in post-democratic spectacular societies (which begins to become evident with Alexis de Tocqueville and finds its final sanction in the analyses of Guy Debord) may well be rooted in this aporia, which marks the beginning of modern democracy and forces it into complicity with its most implacable enemy. Today politics knows no value (and, consequently, no nonvalue) other than life, and until the contradictions that this fact implies are dissolved, Nazism and fascism – which transformed the decision on bare life into the supreme political principle – will remain stubbornly with us. According to the testimony of Robert Antelme, in fact, what the camps taught those who lived there was precisely that “calling into question the quality of man provokes an almost biological assertion of belonging to the human race” (L’espèce humaine, p. II). The idea of an inner solidarity between democracy and totalitarianism (which here we must, with every caution, advance) is obviously not (like Leo Strausss thesis concerning the secret convergence of the final goals of liberalism and communism) a historiographical claim, which would authorize the liquidation and leveling of the enormous differences that characterize their history and their rivalry. Yet this idea must nevertheless be strongly maintained on a historico-philosophical level, since it alone will allow us to orient ourselves in relation to the new realities and unforeseen convergences of the end of the millennium. This idea alone will make it possible to clear the way for the new politics, which remains largely to be invented. In contrasting the “beautiful day” (euemeria) of simple life with the “great difficulty” of political bios in the passage cited above, Aristotle may well have given the most beautiful formulation to the aporia that lies at the foundation of Western politics. The 24 centuries that have since gone by have brought only provisional and ineffective solutions. In carrying out the metaphysical task that has led it more and more to assume the form of a biopolitics, Western politics has not succeeded in constructing the link between zoē and bios, between voice and language, that would have healed the fracture. Bare life remains included in politics in the form of the exception, that is, as something that is included solely through an exclusion. How is it possible to “politicize” the “natural sweetness” of zoē? And first of all, does zoē really need to be politicized, or is politics not already contained in zoē as its most precious center? The biopolitics of both modern totalitarianism and the society of mass hedonism and consumerism certainly constitute answers to these questions. Nevertheless, until a completely new politics – that is, a politics no longer founded on the exceptio of bare life – is at hand, every theory and every praxis will remain imprisoned and immobile, and the “beautiful day” of life will be given citizenship only either through blood and death or in the perfect senselessness to which the society of the spectacle condemns it. Carl Schmitt’s definition of sovereignty (“Sovereign is he who decides on the state of exception”) became a commonplace even before there was any understanding that what was at issue in it was nothing less than the limit concept of the doctrine of law and the State, in which sovereignty borders (since every limit concept is always the limit between two concepts) on the sphere of life and becomes 14 indistinguishable from it. As long as the form of the State constituted the fundamental horizon of all communal life and the political, religious, juridical, and economic doctrines that sustained this form were still strong, this “most extreme sphere” could not truly come to light. The problem of sovereignty was reduced to the question of who within the political order was invested with certain powers, and the very threshold of the political order itself was never called into question. Today, now that the great State structures have entered into a process of dissolution and the emergency has, as Walter Benjamin foresaw, become the rule, the time is ripe to place the problem of the originary structure and limits of the form of the State in a new perspective. The weakness of anarchist and Marxian critiques of the State was precisely to have not caught sight of this structure and thus to have quickly left the arcanum imperii aside, as if it had no substance outside of the simulacra and the ideologies invoked to justify it. But one ends up identifying with an enemy whose structure one does not understand, and the theory of the State (and in particular of the state of exception, which is to say, of the dictatorship of the proletariat as the transitional phase leading to the stateless society) is the reef on which the revolutions of our century have been shipwrecked. This book, which was originally conceived as a response to the bloody mystification of a new planetary order, therefore had to reckon with problems – first of all that of the sacredness of life – which the author had not, in the beginning, foreseen. In the course of the undertaking, however, it became clear that one cannot, in such an area, accept as a guarantee any of the notions that the social sciences (from jurisprudence to anthropology) thought they had defined or presupposed as evident, and that many of these notions demanded – in the urgency of catastrophe – to be revised without reserve. PART ONE The Logic of Sovereignty § 1 The Paradox of Sovereignty 1.1 The paradox of sovereignty consists in the fact the sovereign is, at the same time, outside and inside the juridical order. If the sovereign is truly the one to whom the juridical order grants the power of proclaiming a state of exception and, therefore, of suspending the orders own validity, then “the sovereign stands outside the juridical order and, nevertheless, belongs to it, since it is up to him to decide if the constitution is to be suspended in toto” (Schmitt, Politische Theologie, p. 13). The specification that the sovereign is “at the same time outside and inside the juridical order” (emphasis added) is not insignificant: the sovereign, having the legal power to suspend the validity of the law, legally places himself outside the law. This means that the paradox can also be formulated this way: “the law is outside itself,” or: “I, the sovereign, who am outside the law, declare that there is nothing outside the law [che non ce unfiiori legge].” The topology implicit in the paradox is worth reflecting upon, since the degree to which sovereignty marks the limit (in the double sense of end and principle) of the juridical order will become clear only once the structure of the paradox is grasped. Schmitt presents this structure as the structure of the exception (Ausnahme): The exception is that which cannot be subsumed; it defies general codification, but it simultaneously reveals a specifically juridical formal element: the decision in absolute purity. The exception appears in its absolute form when it is a question of creating a situation in which juridical rules can be valid. Every general rule demands a regular, everyday frame of life to which it can be factually applied and which is submitted to its regulations. The rule requires a homogeneous medium. This factual regularity is not merely an “external presupposition” that the jurist can ignore; it belongs, rather, to the rule’s immanent validity. There is no rule that is applicable to chaos. Order must be established for juridical order to make sense. A regular situation must be created, and sovereign is he who definitely decides if this situation is actually effective. All law is “situational law.” The sovereign creates and guarantees the situation as a whole in its totality. He has the monopoly over the final decision. Therein consists the essence of State sovereignty, which must therefore be properly juridically defined not as the monopoly to sanction or to rule but as the monopoly to decide, where the word “monopoly” is used in a general sense that is still to be developed. The decision reveals the essence of State authority most clearly. Here the decision must be distinguished from the juridical regulation, and (to formulate it paradoxically) authority proves itself not to need law to create law.... The exception is more interesting than the regular case. The latter proves nothing; the exception proves everything. The exception does not only confirm the rule; the rule as such lives off the exception alone. A Protestant theologian who demonstrated the vital intensity of which theological reflection was still capable in the nineteenth century said: “The exception explains the general and itself. And when one really wants to study the general, one need only look around for a real exception. It brings everything to light more clearly than the general itself. After a while, one becomes disgusted with the endless talk about the general – there are exceptions. If they cannot be explained, then neither can the general be explained. Usually the difficulty is not noticed, since the general is thought about not with passion but only with comfortable superficiality. The exception, on the other hand, thinks the general with intense passion.” (Politische Theologie, pp. 19-22) 18 PART 1 : THE LOGIC OF SOVEREIGNTY It is not by chance that in defining the exception Schmitt refers to the work of a theologian (who is none other than Søren Kierkegaard). Giambattista Vico had, to be sure, affirmed the superiority of the exception, which he called “the ultimate configuration of facts,” over positive law in a way which was not so dissimilar: “An esteemed jurist is, therefore, not someone who, with the help of a good memory, masters positive law [or the general complex of laws], but rather someone who, with sharp judgment, knows how to look into cases and see the ultimate circumstances of facts that merit equitable consideration and exceptions from general rules” (De antiquissima, chap. 2). Yet nowhere in the realm of the juridical sciences can one find a theory that grants such a high position to the exception. For what is at issue in the sovereign exception is, according to Schmitt, the very condition of possibility of juridical rule and, along with it, the very meaning of State authority. Through the state of exception, the sovereign “creates and guarantees the situation” that the law needs for its own validity. But what is this “situation,” what is its structure, such that it consists in nothing other than the suspension of the rule? ‫ א‬The Vichian opposition between positive Jaw (ins theticum) and exception well expresses the particular status of the exception. The exception is an element in law that transcends positive law in the form of its suspension. The exception is to positive law what negative theology is to positive theology. While the latter affirms and predicates determinate qualities of God, negative (or mystical) theology, with its “neither... nor... ,” negates and suspends the attribution to God of any predicate whatsoever. Yet negative theology is not outside theology and can actually be shown to function as the principle grounding the possibility in general of anything like a theology. Only because it has been negatively presupposed as what subsists outside any possible predicate can divinity become the subject of a predication. Analogously, only because its validity is suspended in the state of exception can positive law define the normal case as the realm of its own validity. 1.2. The exception is a kind of exclusion. What is excluded from the general rule is an individual case. But the most proper characteristic of the exception is that what is excluded in it is not, on account of being excluded, absolutely without relation to the rule. On the contrary, 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. In this sense, the exception is truly, according to its etymological root, taken outside (ex-capere), and not simply excluded. It has often been observed that the juridico-political order has the structure of an inclusion of what is simultaneously pushed outside. Gilles Deleuze and Félix Guattari were thus able to write, “Sovereignty only rules over what it is capable of interiorizing” (Deleuze and Guattari, Mille plateaux, p. 445); and, concerning the “great confinement” described by Foucault in his Madness and Civilization, Maurice Blanchot spoke of society’s attempt to “confine the outside” (enfermer le dehors), that is, to constitute it in an “interiority of expectation or of exception.” Confronted with an excess, the system interiorizes what exceeds it through an interdiction and in this way “designates itself as exterior to itself” (L’entretien infini, p. 292). The exception that defines the structure of sovereignty is, however, even more complex. Here what is outside is included not simply by means of an interdiction or an internment, but rather by means of the suspension of the j uridical order’s validity – by letting the juridical order, that is, withdraw from the exception and abandon it. The exception does not subtract itself from the rule; rather, the rule, suspending itself, gives rise to the exception and, maintaining itself in relation to the exception, first constitutes itself as a rule. The particular “force” of law consists in this capacity of law to maintain itself in relation to an exteriority. We shall give the name relation of exception to the extreme form of relation by which something is included solely through its exclusion. The situation created in the exception has the peculiar characteristic that it cannot be defined either as a situation of fact or as a situation of right, but instead institutes a paradoxical threshold of indistinction between the two. It is not a fact, since it is only created through the suspension of the rule. But for the same reason, it is not even a juridical case in point, even if it opens the possibility of the force of law. This is the ultimate meaning of the paradox that Schmitt formulates when he writes that the sovereign decision “proves itself not to need law to create law.” What is at issue in the soveteign exception is not so much the control or neutralization of an excess as the creation and definition of the very space in which the juridico-  The Paradox of Sovereighty 19 political order can have validity. In this sense, the sovereign exception is the fundamental localization (Ortung), which does not limit itself to distinguishing what is inside from what is outside but instead ttaces a threshold (the state of exception) between the two, on the basis of which outside and inside, the normal situation and chaos, enter into those complex topological relations that make the validity of the juridical ordet possible. The “ordering of space” that is, according to Schmitt, constitutive of the sovereign nomos is therefore not only a “taking of land” (Landesnahme) – the determination of a juridical and a territorial ordering (of an Ordnung and an Ortung) – but above all a “taking of the outside,” an exception (Ausnahme). ‫ א‬Since “there is no rule that is applicable to chaos,” chaos must first be included in the juridical order through the creation of a zone of indistinction between outside and inside, chaos and the normal situation – the state of exception. To refet to something, a rule must both presuppose and yet still establish a relation with what is outside relation (the nonrelational). The relation of exception thus simply expresses the originary formal structure of the juridical relation. In this sense, the sovereign decision on rhe exception is the originary juridico-political structure on the basis of which what is included in the juridical order and what is excluded from it acquire their meaning. In its archetypal form, the state of exception is therefore the principle of every juridical localization, since only the state of exception opens the space in which the determination of a certain juridical order and a particular territory first becomes possible. As such, the state of exception itself is thus essentially unrealizable (even if definite spatiotemporal limits can be assigned to it from time to time). The link between localization (Ortung) and ordering (Ordnung) constitutive of the “nomos of the earth” (Schmitt, Das Nomos, p. 48) is therefore even more complex than Schmitt maintains and, at its center, contains a fundamental ambiguity, an unrealizable zone of indistinction or exception that, in the last analysis, necessarily acts against it as a principle of its infinite dislocation. One of the theses of the present inquiry is that in our age, the state of exception comes more and more to the foreground as the fundamental political structure and ultimately begins to become the rule. When our age tried to grant the unrealizable a permanent and visible localization, the result was the concentration camp. The camp – and not the prison – is the space that corresponds to this originary structure of the nomos. This is shown, among other things, by the fact that while prison law only constitutes a particular sphere of penal law and is not outside the normal order, the juridical constellation that guides the camp is (as we shall see) martial law and the state of siege. This is why it is not possible to inscribe the analysis of the camp in the trail opened by the works of Foucault, from Madness and Civilization to Discipline and Punish. As the absolute space of exception, the camp is topologically different from a simple space of confinement. And it is this space of exception, in which the link between localization and ordering is definitively broken, that has determined the crisis of the old “nomos of the earth.” 1.3. The validity of a juridical rule does not coincide with its application to the individual case in, for example, a trial or an executive act. On the contrary, the rule must, precisely insofar as it is general, be valid independent of the individual case. Here the sphere of law shows its essential proximity to that of language, just as in an occurrence of actual speech, a word acquires its ability to denote a segment of reality only insofar as it is also meaningful in its own not-denoting (that is, as langue as opposed to parole, as a term in its mere lexical consistency, independent of its concrete use in discourse), so the rule can refer to the individual case only because it is in force, in the sovereign exception, as pure potentiality in the suspension of every actual reference. And just as language presupposes the nonlinguistic as that with which it must maintain itself in a virtual relation (in the form of a langue ox, more precisely, a grammatical game, that is, in the form of a discourse whose actual denotation is maintained in infinite suspension) so that it may later denote it in actual speech, so the law presupposes the nonjuridical (for example, mere violence in the form of the state of nature) as that with which it maintains itself in a potential relation in the state of exception. The sovereign exception (as zone of indistinction between nature and right) is the presupposition of the juridical reference in the form of its suspension. Inscribed as a presupposed exception in every rule that orders or forbids something (for example, in the rule that forbids homicide) is the pure and unsanctionable figure of the offense that, in the normal case, brings about the rule’s own transgression (in the same example, the killing of a man not as natural violence but as sovereign violence in the state of exception). ‫ א‬Hegel was the first to truly understand the presuppositional structure thanks to which language is at once outside and inside itself and the immediate (the nonlinguistic) reveals itself to be nothing but a presupposition of 20 PART 1 : THE LOGIC OF SOVEREIGNTY language. “Language,” he wrote in the Phenomenology of Spirit, “is the perfect element in which interiority is as external as exteriority is internal” (see Phänomenologie des Geistes, pp. 527-29). We have seen that only the sovereign decision on the state of exception opens the space in which it is possible to trace borders between inside and outside and in which determinate rules can be assigned to determinate territories. In exactly the same way, only language as the pure potentiality to signify, withdrawing itself from every concrete instance of speech, divides the linguistic from the nonlinguistic and allows for the opening of areas of meaningful speech in which certain terms correspond to certain denotations. Language is the sovereign who, in a permanent state of exception, declares that there is nothing outside language and that language is always beyond itself. The particular structure of law has its foundation in this presuppositional structure of human language. It expresses the bond of inclusive exclusion to which a thing is subject because of the fact of being in language, of being named. To speak [dire] is, in this sense, always to “speak the law,” ius dicere. 1.4. From this perspective, the exception is situated in a symmetrical position with respect to the example, with which it forms a system. Exception and example constitute the two modes by which a set tries to found and maintain its own coherence. But while the exception is, as we saw, an inclusive exclusion (which thus serves to include what is excluded), the example instead functions as an exclusive inclusion. Take the case of the grammatical example (Millier, “L’exemple,” p. 176): the paradox here is that a single utterance in no way distinguished from others of its kind is isolated from them precisely insofar as it belongs to them. If the syntagm “I love you” is uttered as an example of a performative speech act, then this syntagm both cannot be understood as in a normal context and yet still must be treated as a real utterance in order for it to be taken as an example. What the example shows is its belonging to a class, but for this very reason the example steps out of its class in the very moment in which it exhibits and delimits it (in the case of a linguistic syntagm, the example thus shows its own signifying and, in this way, suspends its own meaning). If one now asks if the rule applies to the example, the answer is not easy, since the rule applies to the example only as to a normal case and obviously not as to an example. The example is thus excluded from the normal case not because it does not belong to it but, on the contrary, because it exhibits its own belonging to it. The example is truly a paradigm in the etymological sense: it is what is “shown beside,” and a class can contain everything except its own paradigm. The mechanism of the exception is different. While the example is excluded from the set insofar as it belongs to it, the exception is included in the normal case precisely because it does not belong to it. And just as belonging to a class can be shown only by an example – that is, outside of the class itself – so non- belonging can be shown only at the center of the class, by an exception. In every case (as is shown by the dispute between anomalists and analogists among the ancient grammarians), exception and example are correlative concepts that are ultimately indistinguishable and that come into play every time the very sense of the belonging and commonality of individuals is to be defined. In every logical system, just as in every social system, the relation between outside and inside, strangeness and intimacy, is this complicated. ‫ א‬The exceptio of Roman court law well shows this particular structure of the exception. The exceptio is an instrument of the defendant’s defense that, in the case of a judgment, functions to neutralize the conclusiveness of the grounds proffered by the plaintiff and thus to render the normal application of the ius civile impossible. The Romans saw it as a form of exclusion directed at the application of the ius civile (Digesta, 44. 1. 2; Ulpianus, 74: Exceptio dicta est quasi quaedam. exclusio, quae opponi actioni solet ad excludendum id, quod in intentionem condemn ationemve deductum est, “It is said to be an exception because it is almost a kind of exclusion, a kind of exclusion that is usually opposed to the trial in order to exclude what was argued in the intentio and the condemnatio”). In this sense, the exceptio is not absolutely outside the law, but rather shows a contrast between two juridical demands, a contrast that in Roman law refers back to the opposition between ius civile and ius honorarium, that is, to the law introduced by the magistrate to temper the excessive generality of the norms of civil law. In its technical expression in the law of the Roman court, the exceptio thus takes the form of a conditional negative clause inserted between the intentio and the condemnatio, by means of which the condemnation of the defendant is subordinated to the nonexistence of the fact excepted by both intentio and condemnatio (for example: si in ea re nihil malo A. Agerii factum sit neque fiat, “if there has not been malice”). The case of the exception is thus excluded from the application of the ius civile without, however, thereby calling into question the belonging of the case in point to the regulative provision. The sovereign exception represents a further dimension: it displaces a contrast between two juridical demands into a limit relation between what is inside and what is outside the law.  The Paradox of Sovereighty 21 It may seem incongruous to define the structure of sovereign power, with its cruel factual implications, by means of two innocuous grammatical categories. Yet there is a case in which the linguistic example’s decisive character and ultimate indistinguishability from the exception show an unmistakable involvement with the power of life and death. We refer to the episode in Judges 12.; 6 in which the Galatians recognize the fleeing Ephraimites, who are trying to save themselves beyond the Jordan, by asking them to pronounce the word “Shibboleth,” which the Ephraimites pronounce “Sibboleth” (“The men of Gilead said unto him, ‘Art thou an Ephraimite?’ If he said, ‘Nay; then they said unto him, ‘Say now Shibboleth’: and he said Sibboleth: for he could not frame to pronounce it right. Then they took him, and slew him at the passages of Jordan”). In the Shibboleth, example and exception become indistinguishable: “Shibboleth” is an exemplary exception or an example that functions as an exception. (In this sense, it is not surprising that there is a predilection to resort to exemplary punishment in the state of exception.) 1.5. Set theory distinguishes between membership and inclusion. A term is included when it is part of one writes it b ⊂ a). But a term may be a member of a set without being included in it (membership is, a set in the sense that all of its elements are elements of that set (one then says that b is a subset of a, and after all, the primitive notion of set theory, which one writes b ∈ a), or, conversely, a term may be included in a set without being one of its members. In a recent book, Alain Badiou has developed this distinction in order to translate it into political terms. Badiou has membership correspond to presentation, and inclusion correspond to representation (re-presentation). One then says that a term is a member of a situation (in political terms, these are single individuals insofar as they belong to a society). And one says that a term is included in a situation if it is represented in the metastructure (the State) in which the structure of the situation is counted as one term (individuals insofar as they are recodified by the State into classes, for example, or into “electorates”). Badiou defines a term as normal when it is both presented and represented (that is, when it both is a member and is included), as excrescent when it is represented but not presented (that is, when it is included in a situation without being a member of that situation), and as singular when it is presented but not represented (a term that is a member without being included) (L’être, pp. 95-115). What becomes of the exception in this scheme? At first glance, one might think that it falls into the third case, that the exception, in other words, embodies a kind of membership without inclusion. And this is certainly Badiou’s position. But what defines the character of the sovereign claim is precisely that it applies to the exception in no longer applying to it, that it includes what is outside itself. The sovereign exception is thus the figure in which singularity is represented as such, which is to say, insofar as it is unrepresentable. “What cannot be included in any way is included in the form of the exception. In Badious scheme, the exception introduces a fourth figure, a threshold of indistinction between excrescence (representation without presentation) and singularity (presentation without representation), something like a paradoxical inclusion of membership itself. The exception is what cannot be included in the whole of which it is a member and cannot be a member of the whole in which it is always already included. What emerges in this limit figure is the radical crisis of every possibility of clearly distinguishing between membership and inclusion, between what is outside and what is inside, between exception and rule. ‫ א‬Badiou’s thought is, from this perspective, a rigorous thought of the exception. His central category of the event corresponds to the structure of the exception. Badiou defines the event as an element of a situation such that its membership in the situation is undecidable from the perspective of the situation. To the State, the event thus necessarily appears as an excrescence. According to Badiou, the relation between membership and inclusion is also marked by a fundamental lack of correspondence, such that inclusion always exceeds membership (theorem of the point of excess). The exception expresses precisely this impossibility of a system’s making inclusion coincide with membership, its reducing all its parts ro unity. From the point of view of language, it is possible to assimilate inclusion to sense and membership to denotation. In this way, the fact that a word always has more sense than it can actually denote corresponds to the theorem of the point of excess. Precisely this disjunction is at issue both in Claude Lévi-Strauss’s theory of the constitutive excess of the signifier over the signified (“there is always a lack of equivalence between the rwo, which is resolvable for a divine intellect alone, and which results in the existence of a superabundance of the signifier over the signifieds on which it rests” [Introduction à Mauss, p. xlix]) and in Emile Benveniste’s doctrine of the irreducible opposition between the semiotic and the semantic. ‘The thought of our time finds itself confronted with the structure of the exception in every area. Language’s sovereign claim thus consists in the attempt to make sense coincide with denotation, to 22 PART 1 : THE LOGIC OF SOVEREIGNTY stabilize a zone of indistinction between the two in which language can maintain irself in relation to its denotata by abandoning them and withdrawing from them into a pure langue (the linguistic “state of exception”). This is what deconstruction does, positing undecidables that are infinitely in excess of every possibility of signification. 1.6. This is why sovereignty presents itself in Schmitt in the form of a decision on the exception. Here the decision is not the expression of the will of a subject hierarchically superior to all others, but rather represents the inscription within the body of the nomos of the exteriority that animates it and gives it meaning. The sovereign decides not the licit and illicit but the originary inclusion of the living in the sphere of law or, in the words of Schmitt, “the normal structuring of life relations,” which the law needs. The decision concerns neither a quaestio iuris nor a quaestio facti, but rather the very relation between law and fact. Here it is a question not only, as Schmitt seems to suggest, of the irruption of the “effective life” that, in the exception, “breaks the crust of a mechanism grown rigid through repetition” but of something that concerns the most inner nature of the law. The law has a regulative character and is a “rule” not because it commands and proscribes, but because it must first of all create the sphere of its own reference in real life and make that reference regular. Since the rule both stabilizes and presupposes the conditions of this reference, the originary structure of the rule is always of this kind: “If (a real case in point, e.g.: si membrum rupsit), then (juridical consequence, e.g.: talio esto),” in which a fact is included in the juridical order through its exclusion, and transgression seems to precede and determine the lawful case. That the law initially has the form of a lex talionis (talio, perhaps from talis, amounts to “the thing itself”) means that the juridical order does not originally present itself simply as sanctioning a transgressive fact but instead constitutes itself through the repetition of the same act without any sanction, that is, as an exceptional case. This is not a punishment of this first act, but rather represents its inclusion in the juridical order, violence as a primordial juridical fact (permittit enim lexparem vindictam, “for the law allows equitable vengeance” [Pompeius Festus, De verborum significations 496. 15]). In this sense, the exception is the originary form of law. The cipher of this capture of life in law is not sanction (which is not at all an exclusive characteristic of the juridical rule) but guilt (not in the technical sense that this concept has in penal law but in the originary sense that indicates a being-in-debt: in culpa esse), which is to say, precisely the condition of being included through an exclusion, of being in relation to something from which one is excluded or which one cannot fully assume. Guilt refers not to transgression, that is, to the determination of the licit and the illicit, but to the pure force of the law, to the law’s simple reference to something. This is the ultimate ground of the juridical maxim, which is foreign to all morality, according to which ignorance of the rule does not eliminate guilt. In this impossibility of deciding if it is guilt that grounds the rule or the rule that posits guilt, what comes clearly to light is the indistinction between outside and inside and between life and law that characterizes the sovereign decision on the exception. The “sovereign” structure of the law, its peculiar and original “force,” has the form of a state of exception in which fact and law are indistinguishable (yet must, nevertheless, be decided on). Life, which is thus obliged, can in the last instance be implicated in the sphere of law only through the presupposition of its inclusive exclusion, only in an exceptio. There is a limit-figure of life, a threshold in which life is both inside and outside the juridical order, and this threshold is the place of sovereignty. The statement “The rule lives off the exception alone” must therefore be taken to the letter. Law is made of nothing but what it manages to capture inside itself through the inclusive exclusion of the exceptio: it nourishes itself on this exception and is a dead letter without it. In this sense, the law truly “has no existence in itself, but rather has its being in the very life of men.” The sovereign decision traces and from time to time renews this threshold of indistinction between outside and inside, exclusion and inclusion, nomos and physis, in which life is originarily excepted in law. Its decision is the position of an undecidable. ‫ א‬Not by chance is Schmitt’s first work wholly devoted to the definition of the juridical concept of guilt. “What is immediately striking in this study is the decision with which the author refutes evety technico-formal definition of the concept of guilt in favor of terms that, at first glance, seem more moral than juridical. Here, in fact, guilt is (against the ancient juridical proverb “There is no guilt without rule”) first of all a “process of inner life,” which is to  The Paradox of Sovereighty 23 say, something essentially “intrasubjective,” which can be qualified as a real “ill will” that consists in “knowingly positing ends contrary to those of the juridical order” ( Über Schuld, pp. 18-24,92). It is not possible to say whether Benjamin was familiar with this text while he was writing “Fate and Character” and “Critique of Violence.” But it remains the case that his definition of guilt as an originary juridical concept unduly transferred to the ethico-religious sphere is in perfect agreement with Schmitt’s thesis – even if Benjamin’s definition goes in a decisively opposed direction. For Benjamin, the state of demonic existence of which law is a residue is to be overcome and man is to be liberated from guilt (which is nothing other than the inscription of natural life in the order of law and destiny). At the heart of the Schmittian assertion of the juridical character and centrality of the notion of guilt is, however, not the freedom of the ethical man but only the controlling force of a sovereign power (katechon), which can, in the best of cases, merely slow the dominion of the Antichrist. There is an analogous convergence, with respect to the concept of character. Like Benjamin, Schmitt clearly distinguishes between character and guilt (“the concept of guilt,” he writes, “has to do with an operari, and not with an esse” [Über Schuld, p. 46]). Yet in Benjamin, it is precisely this element (character insofar as it escapes all conscious willing) that presents itself as the principle capable of releasing man from guilt and of affirming natural innocence. 1.7. If the exception is the structure of sovereignty, then sovereignty is not an exclusively political concept, an exclusively juridical category, a power external to law (Schmitt), or the supreme rule of the juridical order (Hans Kelsen): it is the originary structure in which law refers to life and includes it in itself by suspending it. Taking up Jean-Luc Nancy’s suggestion, we shall give the name ban (from the old Germanic term that designates both exclusion from the community and the command and insignia of the sovereign) to this potentiality (in the proper sense of the Aristotelian dynamis, which is always also dynamis mē energein, the potentiality not to pass into actuality) of the law to maintain itself in its own privation, to apply in no longer applying. The relation of exception is a relation of ban. He who has been banned is not, in fact, simply set outside the law and made indifferent to it but rather abandoned by it, that is, exposed and threatened on the threshold in which life and law, outside and inside, become indistinguishable. It is literally not possible to say whether the one who has been banned is outside or inside the juridical order. (This is why in Romance languages, to be “banned” originally means both to be “at the mercy of” and “at one’s own will, freely,” to be “excluded” and also “open to all, free.”) It is in this sense that the paradox of sovereignty can take the form “There is nothing outside the law.” The originary relation of law to life is not application but Abandonment. The matchless potentiality of the nomos, its originary “force of law, “is that it holds life in its ban by abandoning it. This is the structure of the ban that we shall try to understand here, so that we can eventually call it into question. ‫ א‬The ban is a form of relation. But precisely what kind of relation is at issue here, when the ban has no positive content and the terms of the relation seem to exclude (and, at the same time, to include) each other? What is the form of law that expresses itself in the ban? The ban is the pure form of reference to something in general, which is to say, the simple positing of relation with the nonrelational. In this sense, the ban is identical with the limit form of relation. A critique of the ban will therefore necessarily have to put the very form of relation into question, and to ask if the political fact is not perhaps thinkable beyond relation and, thus, no longer in the form of a connection. § 2 ‘Nomos Basileus’ 2.1. The principle according to which sovereignty belongs to law, which today seems inseparable from our conception of democracy and the legal State, does not at all eliminate the paradox of sovereignty; indeed it even brings it to the most extreme point of its development. Since the most ancient recorded formulation of this principle, Pindar’s fragment 169, the sovereignty of law has been situated in a dimension so dark and ambiguous that it has prompted scholars to speak quite rightly of an “enigma” (Ehrenberg, Rechtsidee, p. 119). Here is the text of the fragment reconstructed by Boeck: Nomos ho panton basileus thnatōn te kai athanatōn agei dikaiōn to Biaiotaton hypertatai cheiri: tekmairomai ergoisin Herakleos. The nomos, sovereign of all, Of mortals and immortals, Leads with the strongest hand, Justifying the most violent. I judge this from the works of Hercules. The enigma consists in more than the fact that there are many possible interpretations of the fragment. What is decisive is that the poet – as the reference to Hercules’ theft clarifies beyond the shadow of a doubt – defines the sovereignty of the nomos by means of a justification of violence. The fragment’s meaning becomes clear only when one understands that at its center lies a scandalous unification of the two essentially antithetical principles that the Greeks called Bia and Dikē, violence and justice. Nomos is the power that, “with the strongest hand,” achieves the paradoxical union of these opposites (in this sense, if one understands an enigma in the Aristotelian sense, as a “conjunction of opposites,” the fragment truly does contain an enigma). If in Solon’s fragment 24 one should read (as most scholars maintain) kratei nomou, then already in the sixth century the specific “force” of law was identified precisely in a “connection” of violence and justice (kratei/nomou bian te kai dikēn synarmosas, “with the force of the nomos I have connected violence and justice”; but even if one reads homou instead of nomou, the central idea remains the same once Solon speaks of his activity as legislator [see De Romilly, La hi, p. 15]). A passage from Hesiod’s Works and Days, which Pindar may have had in mind, also assigns a decisive position to the relation between violence and law: O Perseus, keep these things in mind and forget violence [Biaia] when you attend to justice [Dikē]. To men, Zeus gave this nomos: what is proper to the fish, the wild beasts, and the winged birds is to devour each other, since there is no Dikē between them.  Nomos Basileus 25 But to men Zeus gave Dikē, which is much better, While in Hesiod the nomos is still the power that divides violence from law and, with it, the world of beasts from the world of men, and while in Solon the “connection” of Bia and Dikē contains neither ambiguity nor irony, in Pindar – and this is the knot that he bequeaths to Western political thought and that makes him, in a certain sense, the first great thinker of sovereignty – the sovereign nomos is the principle that, joining law and violence, threatens them with indistinction. In this sense, Pindar’s fragment on the nomos basileus contains the hidden paradigm guiding every successive definition of sovereignty: the sovereign is the point of indistinction between violence and law, the threshold on which violence passes over into law and law passes over into violence. ‫ א‬This is how Friedrich Hölderlin (who most likely had before him a text that had been emended in accordance with the Platonic citation in the Gorgias: Biaiōn ton dikaiotaton, “Doing violence to the most just” [484b, 1-10]) translates the fragment in his annotated version of Pindar’s fragments (which Friedrich ßeißner dates at 1803): Das Höchste Das Gesetz, Von allen der König, Sterblichen und Unsterblichen; das führt eben Darum gewaltig Das gerechteste Recht mit allerhöchster Hand. The Highest The law, Sovereign of all, mortals and Immortals; this is why It leads, violently, The most just justice with the supreme hand. In the name of his theory of the constitutive superiority of the nomos over law (Gesetz, in the sense of conventional positing), Schmitt criticizes the Hölderlinian interpretation of the fragment. “Even Hölderlin,” Schmitt writes, “is mistaken in his translation of the fragment..., since he renders the term nomos with Gesetz and lets himself be misled by this unfortunate word even though lie knows that law is rigorous mediacy. The nomos in the originary sense is, rather, the pure immediacy of a juridical power [Rechtskraft] not mediated by law. It is a constitutive historical event, an act of legitimacy that alone renders the legality of the new law meaningful in general” (Dos Nomos, p. 4z). Here Schmitt completely misinterprets the intention of the poet, which is directed precisely against every immediate principle. In his commentary, Hölderlin defines the nomos (which he distinguishes from law) as rigorous mediation (strenge Mittelbarkeit): “The immediate,” he writes, “is, taken in the rigorous sense, impossible for mortals as for immortals; the god must distinguish different worlds, according to his nature, since the heavenly goods must be holy for themselves, unmixed. Insofar as he knows, man too must distinguish different worlds, since knowledge is only possible through opposition” (Sämtliche Werke, p. 309). If Hölderlin (like Schmitt) sees a principle higher than simple law in the nomos basileus, nonetheless he is careful to specify that the term “sovereign” refers here not to a “supreme power” (höchste Macht) but to the “highest ground of knowledge” (ibid.). With one of those corrections so characteristic of his last translations, Hölderlin thus displaces a juridico-political problem (the sovereignty of law as the indistinction of law and violence) into the sphere of the theory of knowledge (mediation as the power of distinguishing). What is more original and stronger than law is not (as in Schmitt) the nomos as sovereign principle but rather the mediation that grounds knowledge. 2.2. It is in this light that we must read the Platonic citation in the Gorgias (484b, 1-10), which, while appearing as simple forgetfulness, consciously alters the Pindaric text: Even Pindar, it seems to me, has held what I think in the verses in which he says: 26 PART 1 : THE LOGIC OF SOVEREIGNTY the nomos, sovereign of all mortals and immortals And this is how Plato’s text then continues: Leads with the strongest hand Doing violence to the most just. Only an acute coniunctivitis professoria was able to induce philologists (in particular, the editor of the now aged Oxonian critical edition of Plato) to correct the more authoritative manuscripts’ phrase, biaiōn to dikaiotaton, in accordance with the letter of Pindar’s text (dikaiōn to biaiotaton). As Ulrich von Wilamowitz-Möllendorf has justly observed (Platon, pp. 95-97), biaiōn is too rare in Greek to be explained by a lapse of memory (let alone a lapsus calami), and the meaning of the Platonic wordplay is perfectly clear: here the “justification of violence” is at the same time a “doing violence to the most just,” and the “sovereignty” of the nomos of which Pindar speaks consists in this and nothing else. An analogous intention guides the implicit citation that Plato, in the Protagoras, puts in the mouth of Hippias: “You people who are present, I maintain that you are all relatives, neighbors, and citizens by nature and not by law. The similar is related to the similar by natute, but the nomos, the tyrant [tyrannos, not basileus] of men, commits many acts of violence against nature” (337c). This intention also guides the explicit citation in The Laws: [The axiom according to which it is the strongest who rules] is, as the Theban Pindar said, by nature extremely common among all living beings. But the axiom that seems to be more important is the sixth one, which is to say, the one that orders that he who knows and is intelligent should govern, and that the ignorant should therefore follow him. And you will not be able to say that this, wise Pindar, happens against nature, for it happens not by means of violence but in accordance with nature, that is, in accordance with the power of law over those who accept it. (69ob-c) In both cases, what interests Plato is not so much the opposition between physis and nomos, which had been at the center of the Sophists’ debate (Stier, “Nomos basileus,” pp. 245-46), as the coincidence of violence and law constitutive of soveteignty. In the passage from The Laws cited above, the power of law is defined as being in accordance with nature (kata physin) and essentially nonviolent because Plato is most of all concerned to neutralize the opposition that, for both the Sophists and Pindar (in a different way), justified the “sovereign” confusion of Bia and Dikē. The entire treatment of the problem of the relation between physis and nomos in the tenth book of The Laws is undertaken to dismantle the Sophistic construction of this opposition as well as the thesis of the anteriority of nature with respect to law. Plato neutralizes both by affirming the originarity of the soul and of “all that belongs to what is a soul” (intellect, technē, and nomos) with respect to bodies and the elements “that we erroneously say are in accordance with nature” (892b). When Plato (and with him, all the representatives of what Leo Strauss calls “classical natural right”) says that “law must rule over men, and not men over law,” he therefore means to affirm not law’s sovereignty over nature but, on the contrary, its “natural,” which is to say nonviolent, character. While in Plato the “law of nature” is thus born to undermine the Sophistic opposition of physis and nomos and to exclude the sovereign confusion of violence and law, in the Sophists the opposition serves precisely to found the principle of sovereignty, the union of Bia and Dikē. 2.3. The very sense of this opposition, which has had such a tenacious lineage in the political culture of the West, will be considered here in a new way. The Sophistic polemic against nomos in favor of nature (which developed with ever-increasing urgency during the course of the fourth century) can be considered the necessary premise of the opposition between the state of nature and the “commonwealth,” 2 which 2 In English in the original. – Trans.  Nomos Basileus 27 Hobbes posits as the ground of his conception of sovereignty. If for the Sophists the anteriority of physis ultimately justifies the violence of the strongest, for Hobbes it is this very identity of the state of nature and violence (homo hominis lupus) that justifies the absolute power of the sovereign. In both cases, even if in an apparently opposed fashion, the physis/nomos antinomy constitutes the presupposition that legitimates the principle of sovereignty, the indistinction of law and violence (in the Sophists’ strong man or Hobbess sovereign). It is important to note that in Hobbes the state of nature survives in the person of the sovereign, who is the only one to preserve its natural ius contra omnes. Sovereignty thus presents itself as an incorporation of the state of nature in society, or, if one prefers, as a state of indistinction between nature and culture, between violence and law, and this very indistinction constitutes specifically sovereign violence. The state of nature is therefore not truly external to nomos but rather contains its virtuality. The state of nature (certainly in the modern era, but probably also in that of the Sophists) is the being-in- potentiality [l’essere-in-potenza] of the law, the law’s self presupposition as “natural law.” Hobbes, after all, was perfectly aware, as Strauss has underscored, that the state of nature did not necessarily have to be conceived as a real epoch, but rather could be understood as a principle internal to the State revealed in the moment in which the State is considered “as if it were dissolved” (ut tanquam dissoluta consideretur [Hobbes, De cive, pp. 79-80]). Exteriority – the law of nature and the principle of the preservation of one’s own life – is truly the innermost center of the political system, and the political system lives off it in the same way that the rule, according to Schmitt, lives off the exception. 2.4. From this perspective, it will not seem surprising that Schmitt grounds his theory of the originary character of the “nomos of the earth” precisely on Pindar’s fragment and, nevertheless, makes no allusion to his own definition of sovereignty as the decision on the state of exception. What Schmitt wishes to establish above all is the superiority of the sovereign nomos as the constitutive event of law with respect to every positivistic conception of law as simple position and convention ( Gesetz). This is why Schmitt must leave the essential proximity between nomos and the state of exception in obscurity, even though he speaks of “sovereign nomos.” And yet a more attentive reading reveals that this proximity is clearly present. A little later, in the chapter “First Global Lines,” Schmitt shows how the link between localization and. ordering constitutive of the nomos of the earth always implies a zone that is excluded from law and that takes the shape of a “free and juridically empty space” in which the sovereign power no longer knows the limits fixed by the nomos as the territorial order. In the classical epoch of the ius publicum Europaeum, this zone cotresponded to the New World, which was identified with the state of nature in which everything is possible (Locke: “In the beginning, all the world was America”). Schmitt himself assimilates this zone “beyond the line” 3 to the state of exception, which “bases itself in an obviously analogous fashion on the idea of delimited, free and empty space” understood as a “temporary and spatial sphere in which every law is suspended”: It was, however, delimited with respect to the normal legal system: in time, at first through the declaration of the state of war and, in the end, through an acr of indemnity; in space, by a precise indication of its sphere of validity. Inside this spatial and temporal sphere, anything could happen as long as it was held to he de facto necessary according to circumstances. There is an ancient and obvious symbol of this situation, to which Montesquieu also makes reference: the statue of freedom or of justice was veiled for a determinate period of time. (Schmitt, Das Nomos, p. 6j) Insofar as it is sovereign, the nomos is necessarily connected with both the state of nature and the state of exception. The state of exception (with its necessary indistinction of Bia and Dikē) is not external to the nomos but rather, even in its clear delimitation, included in the nomos as a moment that is in every sense fundamental. At its very center, the localization-ordering link thus always already contains its own virtual rupture in the form of a “suspension of every law.” But what then appears (at the point in which society is considered as tanquctm dissoluta) is in fact not the state of nature (as an earlier stage into which men would 3 In English in the original. – Trans. 28 PART 1 : THE LOGIC OF SOVEREIGNTY fall back) but the state of exception. The state of nature and the state of exception are nothing but two sides of a single topological process in which what was presupposed as external (the state of nature) now reappears, as in a Möbius strip or a Leyden jar, in the inside (as state of exception), and the sovereign power is this very impossibility of distinguishing between outside and inside, nature and exception, physis and nomos. The state of exception is thus not so much a spatiotemporal suspension as a complex topological figure in which not only the exception and the rule but also the state of nature and law, outside and inside, pass through one another. It is precisely this topological zone of indistinction, which had to remain hidden from the eyes of justice, that we must try to fix under our gaze. The process (which Schmitt carefully described and which we are still living) that began to become apparent in the First World War, through which the constitutive link between the localization and ordering of the old nomos was broken and the entire system of the reciprocal limitations and rules of the ius publicum Europaeum brought to ruin, has its hidden ground in the sovereign exception. What happened and is still happening before our eyes is that the “juridically empty” space of the state of exception (in which law is in force in the figure – that is, etymologically, in the fiction – of its own dissolution, and in which everything that the sovereign deemed de facto necessary could happen) has transgressed its spatiotemporal boundaries and now, overflowing outside them, is starting to coincide with the normal order, in which everything again becomes possible. ‫ א‬If one wanted to represent schematically the relation between the state of nature and the state of law that takes shape in the state of exception, one could have recourse to two circles that at first appear to be distinct (Fig. i) but later, in the state of exception, show themselves to be in fact inside each other (Fig. 2). When the exception starts to become the rule, the two circles coincide in absolute indistinction (Fig. 3). From this perspective, what is happening in ex-Yugoslavia and, more generally, what is happening in the processes of dissolution of traditional State organisms in Eastern Europe should be viewed not as a reemergence of the natural state of struggle of all against all – which functions as a prelude to new social contracts and new national and State localizations – but rather as the coming to light of the state of exception as the permanent structure of juridico-political de-localization and dis-location. Political organization is not regressing toward outdated forms; rather, premonitory events are, like bloody masses, announcing the new nomos of the earth, which (if its grounding principle is not called into question) will soon extend itself over the entire planet. § 3 Potentiality and Law 3.1. Perhaps nowhere else does the paradox of sovereignty show itself so fully as in the problem of constituting power and its relation to constituted power. Both theory and positive legislation have always encountered difficulties in formulating and maintaining this distinction in ail its weight, “The reason for this,” a recent treatise of political science reads, is that if one really means to give the distinction between constituting power and constituted power its true meaning, it is necessary to place constituting and constituted power on two different levels. Constituted powers exist only in the State: inseparable from a preestablished constitutional order, they need the State frame, whose reality they manifest. Constituting power, on the other hand, is situated outside the State; it owes nothing to the State, it exists without it, it is the spring whose current no use can ever exhaust. (Burdeau, Traité, p. 173) Hence the impossibility of harmoniously constructing the relation between the two powers – an impossibility that emerges in particular not only when one attempts to understand the juridical nature of dictatorship and of the state of exception, but also when the text of constitutions themselves foresees, as it often does, the power of revision. Today, in the context of the general tendency to regulate everything by means of rules, fewer and fewer are willing to claim that constituting power is originary and irreducible, that it cannot be conditioned and constrained in any way by a determinate legal system and that it necessarily maintains itself outside every constituted power. The power from which the constitution is born is increasingly dismissed as a prejudice or a merely factual matter, and constituting power is more and more frequently reduced to the power of revision foreseen in the constitution. As early as the end of the First World War, Benjamin criticized this tendency with words that have lost none of their currency. He presented the relation between constituting power and constituted power as the relation between the violence that posits law and the violence that preserves it: If the awareness of the latent presence of violence in a legal institution disappears, the juridical institution decays. An example of this is provided today by the parliaments. They present such a well-known, sad spectacle because they have not remained aware of the revolutionary forces to which they owe their existence.... They lack a sense of the creative violence of law that is represented in them. One need not then be surprised that they do not arrive at decisions worthy of this violence, but instead oversee a course of political affairs that avoids violence through compromise. (Benjamin, “Zur Kritik der Gewalt,” p. 144) But the other position (that of the democratico-revolutionary tradition), which wants to maintain constituting power in its sovereign transcendence with respect to every constituted order, threatens to remain just as imprisoned within the paradox that we have tried to describe until now. For if constituting power is, as the violence that posits law, certainly more noble than the violence that preserves it, constituting power still possesses no title that might legitimate something other than law-preserving 30 PART 1 : THE LOGIC OF SOVEREIGNTY violence and even maintains an ambiguous and ineradicable relation with constituted power. From this perspective, Emmanuel-Joseph Sieyès’s famous statement, “The constitution first of all presupposes a constituting power,” is not, as has been claimed, a simple truism: it must rather be understood in the sense that the constitution presupposes itself as constituting power and, in this form, expresses the paradox of sovereignly in the most telling way. Just as sovereign power presupposes itself as the state of nature, which is thus maintained in a relation of ban with the state of law, so the sovereign power divides itself into constituting power and constituted power and maintains itself in relation to both, positioning itself at their point of indistinction. Sieves himself was so conscious of this implication as to place constituting power (identified in the “nation”) in a state of nature outside the social tie: “One must think of the nations of the earth,” he writes, “as individuals, outside the social tie... in the state of nature” (Sieves, Qu’est ce que le Tiers Etat?, p. 83). 3.2. Hannah Arendt, who cites this line in On Revolution, describes how sovereignty was demanded in the course of the French Revolution in the form of an absolute principle capable of founding the legislative act of constituting power. And she shows well how this demand (which is also present in Robespierre’s idea of a Supreme Being) ultimately winds up in a vicious circle: What he [Robespierre] needed was by no means just a “Supreme Being” – a term which was not his – he needed rather what he himself called an “Immortal Legislator” and what, in a different context, he also named a “continuous appeal to Justice.” In terms of the French Revolution, he needed an ever-present transcendent source of authority that could not be identified with the general will of either the nation or the Revolution itself, so that an absolute Sovereignty – Blackstones “despotic power” – might bestow sovereignty upon the nation, that an absolute Immortality might guarantee, if not immortality, then at least some permanence and stability to the republic. (Arendt, On Revolution, p. 185) Here the basic problem is not so much how to conceive a constituting power that does not exhaust itself in a constituted power (which is not easy, but still theoretically resolvable), as how clearly to differentiate constituting from constituted power, which is surely a more difficult problem. Attempts to think the preservation of constituting power are certainly not lacking in our age, and they have become familiar to us through the Trotskyite notion of a “permanent revolution” and the Maoist concept of “uninterrupted révolution.” Even the power of councils (which there is no reason not to think of as stable, even if de facto constituted revolutionary powers have done everything in their power to eliminate them) can, from this perspective, be considered as a survival of constituting power within constituted power. But the two great destroyers of spontaneous councils in our time – the Leninist party and the Nazi party – also present themselves, in a certain sense, as the preservers of a constituting moment [istanza] alongside constituted power. It is in this light that we ought to consider the characteristic “dual” structure of the great totalitarian states of our century (the Soviet Union and Nazi Germany), which has made things so difficult for historians of public law. The structure by which the State party tends to appear as a duplicate of the State structure can then be considered as a paradoxical and interesting technico-juridical solution to the problem of how to maintain constituting power. Yet it is just as certain that in both of these cases, constituting power either appears as the expression of a sovereign power or does not let itself easily be separated from sovereign power. The analogy between the Soviet Union and the Nazi Reich is even more compelling insofar as in both cases, the question “Where?” is the essential one once neither the constituting power nor the sovereign can be situated wholly inside or altogether outside the constituted order. ‫ א‬Schmitt considers constituting power as a “political will” capable of “making the concrete, fundamental decision on the nature and form of one’s own political existence.” As such, constituting power stands “before and above every constitutional legislative procedure” and is irreducible to the level of juridical rules as well as theoretically distinct from sovereign power (Verfassungs lehre, pp. 75-76). But if constituting power is identified with the constituting will of the people or the nation, as already happens (according to Schmitt) with Sieves, then the criterion that makes it possible to distinguish constituting power from popular or national sovereignty becomes unclear, and  Potentiality and Law 31 the constituting subject and the sovereign subject begin to become indistinguishable. Schmitt criticizes the liberal attempt to “contain and delimit the use of state power by means of written laws,” and he affirms the sovereignty of the constitution or the fundamental charte: the instances competent for the revision of the constitution “do not, following this competence, become either sovereign or titular of a constituting power” (ibid., pp. 107-8). From this perspective, both constituting power and sovereign power exceed the level of the juridical rule (even of rhe fundamental juridical rule), but the symmetry of this excess attests to a proximity that fades away into indistinction. In a recent book, Antonio Negri has undertaken to show the irreducibility of constituting power (defined as “the praxis of a constituting act, renewed in freedom, organized in the continuity of a free praxis”) to every form of constituted order, and, at the same time, to deny that constituting power is reducible to the principle of sovereignty. “The truth of constituting power,” he writes, is not the one that can (in any way whatsoever) be attributed to the concept of sovereignty. This is not the truth of constituting power not only because constituting power is not (as is obvious) an emanation of constituted power, but also because constituting power is not the institution of constituted power: it is the act of choice, the punctual determination that opens a horizon, the radical enacting of something that did not exist before and whose conditions of existence stipulate that the creative act cannot lose its characteristics in creating. When constituting power sets the constituting process in motion, every determination is free and remains free. Sovereignty, on the other hand, arises as the establishment – and therefore as the end – of constituting power, as the consumption of the freedom brought by constituting power. (Negri, Ilpotere costituente, p. 31) The problem of the difference between constituting power and sovereign power is, certainly, ess