The Contradictory State of Giorgio Agamben

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The Contradictory State of Giorgio Agamben Author(s): Paul A. Passavant Source: Political Theory, Vol. 35, No. 2 (Apr., 2007), pp. 147-174Published by: Sage Publications, Inc.Stable URL: http://www.jstor.org/stable/20452544Accessed: 15-12-2015 15:24 UTC

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A~2Q 47 174

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The Contradictory State 10.1177/009 of Giorgio Agamben Itosted at http:// gepub.com

Paul A. Passavant Hobart and William Smith Colleges Geneva, New York

I argue that Giorgio Agamben employs two, contradictory theories of the state in his works. Earlier works, such as The Coming Community and Means without End, suggest that the state today functions as an aspect of the society of the spectacle where spectacle is the logical extension of the commodity form under late capitalism. This part of Agamben's work attributes a deter mined character to the state and a determining power to the economic forces of capitalism that conditions particular forms of the state. Later work, such as Homo Sacer: Sovereign Power and Bare Life and State of Exception, are preoccupied with the logic of juridical sovereignty and the increased fre quency of states of emergency. This part of Agamben's work attributes a determining strength to the state under current conditions. Although his ear lier work provides a more coherent narrative of how it is possible to move from contemporary society to ideal community, it does not provide the theory of political action necessary to overcome the power of the state he describes when he theorizes the state in Homo Sacer and State of Exception. None of the three possibilities of political action present in his later works pro vides passage beyond state sovereignty without violating his philosophical commitments.

Keywords: Giorgio Agamben; sovereignty; state of emergency; homo sacer; the state

Political and legal theorists are becoming increasingly interested in the works of Giorgio Agamben.' His work ranges across many of philoso

phy's subfields, from set theory, the philosophy of language, and aesthetics, to metaphysics and ontology. His turn to the question of sovereignty, how ever, has heightened attention to his scholarship. Judith Butler, for example, borrows from Agamben to understand the logic by which the United States

Author's Note: I have accumulated debts of gratitude to Jodi Dean, Peter Fitzpatrick, Andrew

Norris, and Adam Thurschwell for their comments and criticisms of earlier versions of this

essay. I would also like to thank Mary Dietz and the anonymous reviewers for their sugges

tions. Of course I remain responsible for the remaining weaknesses or errors.

147



148 Political Theory

exempts those it keeps incarcerated in Guantanamo Bay from the most

basic legal rights.2 Agamben's work on sovereignty is appealing because of the parsimonious

way that it seemingly captures our current political situation. He describes the sovereign's role in constituting the normal legal system through its power to decide upon what is exceptional to its order. Law is withheld or suspended from the exception. Those captured within the exception face sovereign power without the mediation of legal rights, and are called "bare life" or homo sacer. These relations can be thought of topographically: the exception

indicates the space of the normal juridical order. Similarly, the paradigmatic

space of the exception is the concentration camp, which is defined by the sov

ereign. Today, we read about efforts to justify the power of the president to

order tortuous acts regardless of contrary domestic U.S. law or international law on the grounds that he is "Commander in Chief."3 We also read about

efforts to justify the camps where the United States interned Japanese and

Japanese Americans during World War 11.4 Efforts continue to define a cate gory of persons as "enemy combatants" who are asserted to be outside of the

protection of the Geneva Conventions, international human rights, or U.S.

legal rights such as the right of habeas corpus, and to maintain a camp for these persons which the administration claims is outside of the normal juridi cal system.5 In light of the 1995 Italian publication of Homo Sacer, Agamben may appear prescient today.

Theoretically, Agamben is significant as one of a group of leading schol ars who argue that our current political world, where the exception has

seemingly become the rule, is the necessary consequence of sovereignty's logic working itself out. The logic of sovereignty, in turn, is the political

manifestation of Western thought's ontological foundations. Therefore, the

only way to prevent the exclusions of the modern state and to promote human happiness is not to work within the established categories of modern

political theory, but rather to turn our attention to the matter of ontology. Only by founding a new ontology can we solve our political quandaries.6 Some of this scholarship, like Michael Hardt's and Antonio Negri's Empire, attempts to think politics beyond the representative democracy, the state, and

the law on this new ontological basis to avoid repression, alienation, and

exclusion. In this essay, I examine Agamben's work as an example of this effort to

rethink the ontological basis of politics. I argue that his scholarship does not

provide a coherent assessment of the modern state, nor does he provide a coherent set of theoretical prescriptions to solve its injustices. I find

Agamben employs two, contradictory theories of the state in his works. On



Passavant / The Contradictory State of Giorgio Agamben 149

one hand, in some of his earlier works, such as The Coming Community and

Means without End, Agamben demonstrates sympathy for those who claim

that current conditions are well described as a "society of the spectacle," and

he suggests that the state today functions as an aspect of the society of the

spectacle where spectacle is the logical extension of the commodity form

under late capitalism. This part of Agamben's work attributes a determined

character to the state and a determining power to the economic forces of cap

italism that conditions particular forms of the state. On the other hand, such

well-known works as Homo Sacer: Sovereign Power and Bare Life and State

of Exception are preoccupied with the logic of juridical sovereignty, the sov

ereign's necessary power to declare a state of exception to the legal order,

and the increased frequency of states of emergency as the contemporary evo

lution of sovereignty's logic. This part of Agamben's work attributes a deter

mining strength to the state under current conditions. Indeed, this state

determines questions of life itself. I elaborate these two conceptions of the

state and evaluate their theoretical strengths based upon Agamben's norma

tive goals. Although his earlier work provides a more coherent narrative of

how it is possible to move from contemporary society to Agamben's ideal

community, it does not provide a theory of political action that would be

necessary to overcome the power of the state that he describes when he

explicitly sets out to provide a theory of the state in Homo Sacer and State

of Exception. Although there are three possibilities of political action present in his later works that might provide passage beyond state sovereignty and

the ever-proliferating states of emergency, none, I shall argue, can be a form

of political action well matched to the problem Agamben identifies with the

state's sovereign decisions without violating his philosophical commit

ments. In conclusion, I find that traditional problems of political theory, such

as questions of power and otherness, cannot be escaped by simply displac

ing inquiry to the level of ontology. By failing to solve such problems philo

sophically at the level of ontology, I contend, politics remains.

Passage from the State of Integrated Spectacle to the Coming Community

Agamben's theory of the state of spectacle, which he produced prior to

his Homo Sacer project, considers the relation of the state to late capitalism.7

This work borrows both from Guy Debord (Means without End [MWE] is dedicated to Debord), who contended that the best way to understand con

temporary society is as a "society of the spectacle," and from Karl Marx's




theory of the commodity.8 Building upon Marx and Debord, Agamben con tends that the society of the spectacle captures the commodity's "last meta

morphosis, in which exchange value has completely eclipsed use value and can now achieve the status of absolute and irresponsible sovereignty over life in its entirety, after having falsified the entire social production." Society of the spectacle is capitalism's "becoming image" (MWE, 76). The "final stage in the evolution of the state form" is the "state of integrated spectacle" (MWE, 108), the culmination of the twentieth century's growing integration of state and economy.

By highlighting and elaborating a connection between society of the spectacle and a Marxist analysis of capitalism, Agamben locates the cause or determination of the state of the spectacle in the economy and its capi talist development: "the forms of the State and the economy are interwo ven, the mercantile economy attains the status of absolute and irresponsible sovereign," in the "final form" of capitalism (CC, 79). This merger of state and economy into the state of the spectacle is determined by the logic of capitalist development. Here, not the state but the economy is the "absolute and irresponsible sovereign."

The root of spectacle is communication; Agamben highlights the com municative aspects of language and images in spectacle. He writes, "Spectacle is language, the very communicativity and linguistic being of humans." A properly Marxist analysis should, for Agamben, acknowledge not only that capitalism expropriates our productive activity, but also that it is aimed at the "alienation of language itself, of the linguistic and communicative nature of human beings" (MWE, 82). The "'great transformation' constituting the final stage of the state form" taking place at present is leading, according to Agamben, to a state in decline with an "empty shell" that persists as a pure form of sovereignty, while "society as a whole is instead irrevocably deliv ered to a form of consumer society." Although theorists of political sover eignty such as Carl Schmitt might see these developments as the sign of the end of politics, Agamben derives useful political potential from this process (MWE, 109, 113-14).

For Agamben, the problem of a new politics, and the very purpose of

political philosophy, is to order community for a happy or sufficient life. This sufficient life is one that has "reached the perfection of its own power and of its own communicability-a life over which sovereignty and right no longer have any hold" (MWE, 114-15; emphasis added). This nonjuridical human being and this nonjuridical "politics" (MWE, 112), this being with no law, are constituted on the plane of immanence made possible by the demise of the spectacular state (MWE, 115).




The spectacle, while alienating human being from language, still con tains a positive possibility. Driving the nations of the earth to a common destiny (MWE, 85), the spectacle creates an earthly common being by dis solving social classes and producing in their place an earthly petty bour

geoisie (CC, 63). Spectacle is uprooting people from their anchoring in

"differences of language, of dialect, of ways of life, of character, of custom, and even the physical particularities of each person" (CC, 63). These dif ferences have lost all meaning, and in their place, spectacle has wrought a

petty bourgeoisie, together and mutually exposed in their vacuity (CC, 64). This "petty bourgeoisie" represents "an opportunity unheard of in the history of humanity," and which it must not let escape (CC, 65). Instead of a continuing search for a "proper identity in the already improper," humans might succeed in "belonging to this impropriety as such," a "common and absolutely exposed singularity" (CC, 65). Humans might then succeed to a

community without presuppositions and without subjects, and enter into "a communication without the incommunicable" (CC, 65). By emptying all ideologies, beliefs, religions, and traditions, spectacle will have made pos sible the experience of being sharing in language itself (MWE, 85). For the first time, humans can become a community without presuppositions and without a state.

In sum, the latest stage of spectacle capitalism is overcoming the state and is driving the nations of the earth to a common destiny united through capitalism's spectacle. Ironically, though, this revolution makes possible what Agamben has called elsewhere the most "authentic human community and communication" (TI, 35), the experience of communication itself, a pure mediality, that constitutes the purpose of both philosophy and politics (TI, 34-35; IL, 43; MWE, 60, 118). Most importantly, as far as Agamben's philosophy is concerned, the determining power of global capital enables a story of the unfolding of social change that is completely immanent along the plane of our existence.9

An Improperly Marxist Assessment

Agamben presents the globalization of spectacular capital as providing the material conditions of possibility for human beings to experience "their own linguistic essence" (MWE, 115), and politics as a sphere of "pure mediality

without end" (MWE, 117). By uprooting traditional divisions, spectacular capital enables humans to "enter a community without presuppositions," and experience "communication without the incommunicable" (CC, 65) through




the production of a "single planetary petty bourgeoisie" as "the old social classes are dissolved" (CC, 63). Unspoken in this presentation, however, is that the situation enabling Agamben's coming community is secured through a form of economic power-spectacular capital. The coming community's persistence, then, is contingent upon the persistence of this form of economic power. As this form of power wanes, so, presumably, would the coming com munity. Therefore, either decisions and actions must be undertaken to main tain this form of economic power since it is a material conditionality for the coming community, or Agamben must provide new forms of power and polit ical decisions that would substitute for these economic forces in order to

maintain the situation enabling the coming community. The name for this emerging relationality under globalizing capital,

"petty bourgeoisie," is actually a misnomer as it connotes small, indepen dent ownership of capital-precisely that which is being eradicated within the present capitalist formation.10 More pointedly, the capitalist formation presently being globalized is producing substantial socio-economic polari ties. It is producing not a common situation but material inequalities and coinciding spatial segregations."

Even if a "common" language were being globalized through spectacular capital, then, the different classes produced through this polarizing economic formation would, through their utterances, accent "common" linguistic signs differently so that this "common" language could be put into play in their con crete contexts. Indeed, this class-based, context-based inflection of the lin guistic sign might also, simultaneously, refer to or imply the other classes and contexts of existence insofar as class itself is a relational concept. By attend ing to the importance of the linguistic utterance as opposed to what linguists call langue, or the linguistic system itself, as Agamben does, we recognize that "various different classes will use one and the same language. As a result, differently oriented accents intersect every ideological sign." Since there will be an "intersecting of differently oriented social interests within one and the same sign community," which follows from the existence of different classes, the sign, then, will manifest class difference. It will also become an arena for one dimension of the class struggle-the attribution of evaluative meaning to the contemporary conditions of existence as they are differentially experienced by distinct classes."2 The sign, under conditions of class and other contextual differences, must exist in a condition of "multiaccentuality" as long as we are dealing with a living language rather than a dead one that is merely a subject of philological study. The upshot of this is that while Agamben emphasizes a material commonality produced through the globalization of the current capi talist formation that enables the coming community, there are solid empirical




grounds for emphasizing the differences and social polarities that this eco nomic formation is producing globally. So even if different classes share a

"common" language, they would not experience any common community since the common situation posited by Agamben as its condition of possibil ity does not, in fact, exist. And this lack of a common situation, as Agamben recognizes, has corresponding linguistic consequences.

Threshold I

In his more recent and better-known work, such as Homo Sacer and State of Exception (HS, SE), Agamben has taken up the task of theorizing the state explicitly. In an about-face, Agamben now condemns the "weakness of anar chist and Marxist critiques of the State" for not having understood the "orig inary structure" of the state and having too "quickly left the arcanuum imperii aside as if it had no substance outside of the simulacra and the ideologies invoked to justify it" (HS, 12). In this second approach to the state, Agamben attributes to the state an absolutely sovereign power to determine life itself. This is a state capable of bringing the impossible to reality by separating a biopolitical stratum from life and forcing it to exist (Remnants of Auschwitz, or RA). This is a strong, determining state that, through its sovereign acts, is capable of producing absolute necessity (the case of the Muselmann in Remnants of Auschwitz who has passed a certain threshold in the Nazi camps beyond agency) by its decisions and acts. Now that his primary focus is on the question of the state, Agamben describes the state in terms that contradict the understanding of the state produced in his earlier work.

This second approach to the state, however, presents certain problems for an account of social change as immanent to the world in which humans find themselves. What subjects will have the capacity to overcome this forcefully determining state? Not only does he have two, contradictory the ories of the state in play within it, but Agamben's explicit theory of the state constitutes a dead end on his own terms that seek to produce a new com munity of unalienated human being.

Agamben's Second State: Political Sovereignty and Bare Life

In Homo Sacer, Agamben accepts Carl Schmitt's theory of state sover eignty that posits the sovereign as the one who decides the exception to the




normal juridical order."3 Against liberalism, which seeks to debilitate the state from acting through individual rights and multiplying checks on deci sion, Schmitt's theory of the political relies on a concept of sovereignty where sovereignty is the one place where the decision on the "critical situ ation" or "exception" resides.14 For Schmitt, and therefore for Agamben's understanding of sovereignty, it is clear where sovereignty lies insofar as the sovereign is not hampered by checks and balances. It is the unitary place of decision.'5

For Agamben, the exception is a form of exclusion. Analogizing the way that the exception helps to establish a normal legal order to the relation of positive theology to negative theology (HS, 17), Agamben argues that the rule applies to the exception by withdrawing from it and by no longer applying to it, thereby taking the exception outside the order.'6 The relation of the legal order to the exception, then, is that of the ban (HS, 17-29). Agamben considers his work on the state to be a critique of the ban that will necessitate a putting into question "the very form of relation," and to rethink politics beyond relation (which would relate two things that are dif ferent and hence separated) and connection (HS, 29).17 Homo Sacer, as a

critique of the ban that constitutes political space, remains committed to the new ontology he sought to render manifest in the Coming Community and

Means without End. According to Agamben, the place of the sovereign is a place where the

outside is brought inside the community (HS, 35, 38, 83). Homo sacer, the one who is "captured in the sovereign's ban" (HS, 83), the one who may be killed without committing homicide but not sacrificed, exists in a parallel relation to the sovereign in the sense that he also is outside the normal

juridical order. Political space is thus constituted through a double exclu sion (HS, 83). The political sphere, the place of sovereignty and the refer ent of the sovereign's decision, is created in its separation from the divine and the juridical.

For Agamben, the production of bare life-the human life exposed to an

ever-present vulnerability to being killed, the exclusion that founds the city of men (HS, 7)-is the "originary activity of sovereignty," and this decision constitutes the "originary 'political' relation" (HS, 83, 85). Agamben traces this constitutive exclusion back to the distinction for the ancient Greeks between zoe (biological life) and bios (a way of life). The Greeks sought to exclude zoe from public or political space and confine it to the oikos (home). Therefore, the human being with logos dwells in the polis "by let ting its own bare life be excluded, as an exception, within it.... There is politics because man is the living being who, in language, separates and




opposes himself to his own bare life" (HS, 8). Agamben contends a thread

ties the modem state to the ancient creation of the political sphere in the

Western tradition. The modem state differs from the ancient in that it no

longer confines zoe to the oikos but has taken on the management of bio

logical life as its primary raison d'etre (HS, 2, 3, 6, 175). This does not

mean that modernity has managed, through biopolitics, to "heal the frac

ture" constitutive of Western political space. Despite the fact that inside and

outside have become virtually indistinguishable under contemporary con

ditions (HS, 9), the state continues to exercise its sovereign prerogative of

deciding the exception and banning bare life (HS, 131). The modem state

undertakes ever-expanding and proliferating attempts to manage its biopo

litical foundations whereby birth is the condition for full citizenship,

attempts indicating the state is entering a generalized crisis and that lead

Agamben to reiterate Walter Benjamin's aphorism observing the state of

exception is now becoming the rule (SE, 6). For Agamben, the concentration camp, the "pure, absolute, and impass

able biopolitical space," is the "hidden paradigm of the political space of

modernity" (HS, 123) and the "hidden matrix of the politics in which we

are still living" (HS, 175). He urges his readers to recognize the camp's

many metamorphoses throughout contemporary society, from the zones

d'attentes of our airports to the detention camp at Guantainamo Bay (HS,

175-76; SE, 4). The concentration camp is the creation of a declaration of a state of emergency or exception (SE, 2), and thus placed outside the nor mal legal order. The camps are the spatialization of the suspension of law

that is inhabited by bare life (HS, 175). By identifying the German body

through the negation of the Jew, the Nazi camps produced the Muselmann, an "absolute biopolitical substance" (RA, 85). In these concentration

camps, the logical extreme of sovereign power, biopower sought to pro

duce, through the Muselmann, a complete separation of living being from

speaking being, a kind of absolute biopolitical substance forced to survive

as an entirely separated stratum-an absolute separation of zoe from bios

(RA, 156). Despite the generalized indistinction between inside and outside, state

power continues its attempt to separate the human from bare life as it con

stantly redraws the line distinguishing inside from outside-a project whose futility was proved by the most radical attempt to force the impossi ble into reality in the Nazi camps (RA, 148). The witness's testimony

proves this impossibility through the witness's inseparable link to the

Muselmann, to the living dead (RA, 151, 158). The witness is the remnant

of Auschwitz (RA, 164) who illustrates, through a nonnegative relation to




the Muselmann-who represents the zoe within all of us or that which is nonlinguistic-that we are exposed in our incapacity to distance ourselves from ourselves. We are consigned to the impossibility of being other than

ourselves, as Agamben argues, following, in a manner, Emmanuel Levinas. Thus, a proper ethics or ethos begins from this place and, in line with Agamben's arguments in The Coming Community and Means without End, would manifest a political ontology that would not be founded on an orig inary negation or exclusion. This new ontology would not be founded on a relation of the ban, but instead being would be abandoned to itself and freed from every relation to law (HS, 59-60).

Because, for Agamben, politics must be immanent to being, he must find a passage from the contemporary state to the coming community from within human being as it is presently manifested. This means, paradoxi cally, that he must look to the camps as the political matrix of the present and the state of exception generally-in order to find this passage. Agamben must locate the seeds of change, the potentiality of the coming community, within the camps and within the state of exception.

The modem biopolitical state has proved that life is immediately politi cal. If this is so, and the witness proves the impossibility of isolating some thing like a bare life without a remnant, then we must recognize the impossibility of attempting to isolate bare life from human being's cohesive unity (HS, 153). In the camps and in the state of emergency generally, for Agamben, everything becomes possible. If what is happening at present is that the state of emergency is overflowing its boundaries and is beginning to coincide with the normal order, then in a general sense everything becomes possible (HS, 38). In the state of exception, law is in force even if

specific legal prescriptions or prohibitions are suspended. When law is in force without significance, law is an empty potentiality that is so much in force without content that it becomes, as it did in the camps, indistinguish able from life (HS, 52-53). But now the question arises, if a law without content has become indistinguishable from human life, then is it even in force? Does it make sense anymore to speak of law as being in force any longer under such conditions? In other words, with the slightest shift in perspective-in State of Exception, this is likened to a chessboard with two players facing each other and moving a single pawn which, depending on where one is sitting, is either law that is in force without significance or

pure means, a state of exception or revolutionary violence (SE, 62)-can we close the door on law once and for all and interrupt law's being in force (HS, 55, 57)? In the state of exception become the rule, "the two terms that have been distinguished and united by the relation of the ban (bare life and




form of law) abolish each other and enter a new dimension" (HS, 55). Drawing from Jewish theology to elucidate how the slightest shift can change everything (HS, 57-58), Agamben finds, in Franz Kafka's "Before the Law" and Jacques Derrida's mediation upon it, a moral to Kafka's story that describes how something can "really happen[] in seeming not to hap pen" (HS, 57).

I can make the point more persuasively by drawing from Agamben's State of Exception, where he locates the juridical origins of the state of exception in the problem of civil war. There, Agamben notes the relationship between the state of exception and the state of siege that might be declared in a region, city, or zone where there is a funeral for the head of state, or a tumult. Or, the relation between the state of exception and one of the periodic anomic feasts of the Middle Ages where the latter are characterized by unbridled license and a suspension of the normal legal order as the latter's hierarchies are par odied and reversed (SE, ch. 5). At a certain point, perhaps the parodic carni val in which the normal legal order is temporarily suspended can cross a line and become an actual rebellion or become revolutionary (SE, 65-73). At this point, we can imagine the Senate returning full power to the republic's citi zens so they can take whatever measures are necessary to save the state (SE, 41, 79). These actions will not be legal in any strict sense (Agamben argues against Schmitt's attempt to maintain the state of emergency's relation to the juridical, sympathizing instead with Benjamin's conception of "divine vio lence"; SE, ch. 4). The actions demanded by necessity will be mere facts committed in a juridical void (SE, 50). These actions will be indeterminate during that period-are they committed for the preservation of the state, or are they revolutionary? At that moment, the question would be completely undecidable, thereby demonstrating the close proximity of the state of emer gency or the doctrine of necessity to revolution. At this juncture, however, Agamben requires a theory of political action. Crudely put, for Agamben, how can a camp become a carnival? That is, how can conditions that he him self has described as those of absolute necessity (RA, 148) become contin gent, hence possible not to be, and a passage made toward the coming community?

Threshold II

Agamben has three possible arguments to describe passage from the pre sent state of emergency become the rule to the coming community. First, we might render sovereign power inoperative through a generalized exodus




from political action to a state of pure potentiality. This is an argument that Agamben makes most explicitly. Second, Agamben might point to the anomic potential of the carnivalesque. Third, we can become converted to a community of the faithful and, inspired through a messianic relation to the time of the now, infuse our actions with grace in the time that remains. I argue that none of these three positions are adequate conceptions of polit ical action. Agamben not only has two, contradictory conceptions of the state in his work, but also his most explicit attempt to create a theory of the state has produced a certain barrier between the present and the coming community, making passage impossible within the terms of his theory.

Bartleby

Agamben's most explicit argument about overcoming state sovereignty is for humans to recede into what they share most commonly-the capac ity to think potentiality-and to render thereby sovereignty inoperative.

Dissatisfied with all theories of constituent power because they are, at root, theories that relate power to law, hence they all fail to sever the connection between constituting and constituted power, Agamben becomes intrigued by Antonio Negri's effort to reconceive constituent power as the power of potentiality. In other words, what interests Agamben is the shift from a "strictly political concept" to a "category of ontology," the shift, that is, from "political philosophy to first philosophy" (HS, 44). Only once a "new and coherent ontology of potentiality," Agamben argues, "has replaced the ontology founded on the primacy of actuality" will a "political theory freed from the aporias of sovereignty" become thinkable (HS, 44).

Returning to Aristotle, Agamben defines pure potentiality as the potential to be (or do) and the potential not to be (or do). If potentiality is not to become lost in the act or actuality, pure potentiality must be thought rigor ously as this double possibility: "What is potential can both be and not be" (HS, 45, quoting Aristotle, Metaphysics, 1046a). Relating this back to poli tics, Agamben urges his readers to "think the existence of potentiality with out any relation to Being in the form of actuality." This means a thinking of "letting be" (HS, 47). Thus, for Agamben, "the strongest objection against the principle of sovereignty is contained in Herman Melville's Bartleby, the scrivener who, with his 'I would prefer not to,' resists every possibility of deciding" (HS, 48). This scrivener who retains his ability to act as a scribe even as he prefers not to, who remains poised in the perfect position between

inscribing and not inscribing, becomes the personification of the greatest




possible threat to sovereignty. His actions, then, are akin to Agamben's read ing of Kafka's "Before the Law" where he considers the man from the country to have performed a "complicated and patient strategy to have the door closed in order to interrupt the Law's being in force" (HS, 55). Here, "whatever being" (CC, 1-2), by remaining in this condition of pure poten tiality that refuses to decide or to pass over to actuality, would render sover eignty and its law inoperative in a withdrawal or exodus from sovereignty to a pure potentiality (HS, 62).

Despite the beauty, from the perspective of Benjamin's "Critique of Violence," of using the coming community to undo sovereignty without resort to an instrumental means that would be related to that end, this strat egy fails based on Agamben's definition of sovereignty.'8 Recall that Agamben, in Homo Sacer, employs Schmitt's definition of sovereignty. This conception of sovereignty relies on a unique and singular conception of the place of deciding the exception. Without this one place from which to decide the exception, power becomes decentered and pluralized-a form of liberal government that Schmitt criticizes in Concept of the Political and elsewhere. In separating sovereignty from human being as the outside brought inside the community, Agamben cannot account for how this refusal to act on the part of human beings would render sovereignty inca pable of simply deciding to kill or otherwise incapacitate the recalcitrant Bartleby.

If, however, sovereignty is not so singular and unified-if state power were theorized as an "ensemble of actions which induce others and follow from one another," as a "way in which certain actions modify others"-then perhaps Bartleby might help interrupt this chain or structure of articulated actions."9 If we shift our perspective from a unique sovereign capacity of decision to the terrain of government as "the way in which the conduct of individuals or groups might be directed," where to govern would mean "to structure the possible field of action of others," others through whom power is both exercised and extended, then Bartleby's strategy of recalcitrance, his refusal to decide, might indeed render this exercise of power inoperative.20

When one shifts one's theory of the state away from the sovereign decision confronting bare life to the terrain of state government, however, then there is a more complicated relation between power and freedom.2' Indeed, in order for the modern state to be able to govern at a distance, there must be an element of freedom, if not decentered and pluralized forms of power, to enable the extension of state power as it brings different forms of power under its control and activates them as an ensemble toward its ends over space and time.22 In this view, which, incidentally, is Michel Foucault's




view, freedom and plural forms of power enable the modern state to govern extensively and intensively, in a manner that is both individualizing and generalizing, through, we might say, relays and institutional articulations that become forged. This Foucauldian understanding of state power would be vulnerable to Bartleby as his refusal and the refusal of others like him would prevent state government from achieving its ends. But this is not Agamben's theory of the state. Insofar as Agamben remains committed to the formal elegance of a theory of state sovereignty based on a unique capacity to decide on the exception, Bartleby will not provide him a way to render this state inoperative. Insofar as he borrows from Foucault's theory

of the modern state, however, he might gain an effective political strategy of resistance to this state, but he must then sacrifice his formal theory of the state that is reduced to a theory of sovereignty in Homo Sacer and State of Exception, and its philosophical exposition transcending both history and geography.

The Carnivalesque

Agamben has a second understanding of political subjectivity that might provide passage from the present to the coming community. This is the example of the carnival-like atmosphere provided by the anomic feasts of the

Middle Ages that somehow cross a line to become revolutionary, thereby cre ating a zone where an emergency comes into force. This example is less per suasive from Agamben's perspective holding that law shows its true character in the extreme situation, where the latter would seem to be the camp-which he has characterized as a situation of absolute necessity and as the subtrac tion of contingency (RA, 148)-rather than the carnival. Indeed, only in the formal terms of his theory, which negates differences that are either empiri cal or in the relations of power, could a camp be equated to a carnival.

Nevertheless, insofar as it is an example of a state of emergency that could become the rule and then flip in an emancipatory direction, I consider it.

One might think that Agamben has posited-active if not rebellious

political subjects-what needs to be explained. How did we get there?

Agamben does have an answer to this question implicit within his philoso phy. This answer requires, though, a misunderstanding of how carnival functions as political critique.

In Means without End, Agamben finds ethical and political potential in the gesture. Analogizing his interest in the gesture to Gilles Deleuze's con

cept of the "movement-image," Agamben argues that the gesture interests




him because nothing is "being produced or acted, but rather something is being endured and supported." Neither production (poiesis) toward an end other than itself nor an action that is a simple end in itself (praxis), the ges ture "breaks with the false alternative between ends and means that para lyzes morality and presents instead means that, as such, evade the orbit of

mediality without becoming, for that reason, ends" (MWE, 57; emphasis in

original). The gesture, according to Agamben, "is the exhibition of a medi ality: it is the process of making a means visible as such" (MWE, 58).. It is the "communication of a communicability" (MWE, 59). Tellingly, for

Agamben, the coming politics is a pure means or a means without end. Among his examples of the gesture, Agamben's illustration of the mime

might shed light on the carnival as political action. A mime exhibits famil iar gestures toward familiar ends by suspending them so that the gestures become exhibited as such in a "sphere of pure and endless mediality"

(MWE, 58-59). Agamben's interest in the gesture, then, is like his political interest in a pure potentiality where the infinity of potential ends is held in suspension rather than becoming submerged in a finite act(uality) through a decision. Thus, on Agamben's account, perhaps performers in a carnival sever ordinary gestures from the relation they have to ends in the normal social structure and exhibit these gestures as such. This "communication of communicability," then, enacts the pure belonging of human being beyond any notion of a national people or ethnic group. It would fracture existing class and social cleavages to make clear that the coming community is in fact immanent in the gestures of the performers and the reception of these gestures by the audience.

Cultural studies, like Agamben, became inspired by how actual rebellions and clashes have emerged out of carnivals and analyzes contemporary cul tural forms with a sensitivity to the "carnivalesque." The carnivalesque rep resents a vision of the world seen from below. By reversing social or

political hierarchies and celebrating what "normal" taste or codes of conduct

revile, or by parodying social norms to excess, the carnivalesque exposes these norms and, by holding these hierarchies up to derision, deflates their authority. In this sense, the carnivalesque has been understood as populist if

not utopian. Not simply cultural ritual, cultural studies understands the car

nivalesque as a form of political resistance for those excluded, marginalized, or subordinated by the socio-political status quo.23

One criticism of this valorization of the carnivalesque might focus on how a king and queen are crowned during carnival season. This fact illus trates that carnival reaffirms the structure of the status quo while mocking its substantive values. That is, carnival is insufficiently radical because its




critique remains too tied to the social order by critical strategies that merely try to reverse or reinflect the norms of the existing social structure. Carnival fails to transcend the present with a truly new social order because its crit ical efforts rely, in dialogic relation, upon the present social imaginary in order to produce its critique. This position attacks carnival for its imma nence and for a failure to achieve transcendence from the present social order and imagine a true utopia.24

In light of this criticism of carnival, Agamben's second theory of politi cal subjectivity is an interesting misappropriation of the literature on carni val that fails upon closer examination. While its critics dismiss carnival as a form of political resistance for insufficiently transcending the present order, Agamben must take the gestures of carnivalesque performers and abstract them from their socio-political milieu, forcing them to transcend the social and political context in which they could possibly achieve meaning as social or political critique. There is no inherent reason why reference to certain aspects of the "grotesque" body should function as humorous socio-political critique. Such references achieve their socio-political charge only because a politically, socially, and economically ascendant class sought to purchase affective status for themselves by relationally reviling the bodily manners of the classes, races, and genders they wished to subordinate and from which they wished to distinguish themselves. By celebrating the grotesque in this act of inversion, not only are some bodily manners being revalued over oth ers, but also a broader insubordination is being enacted since carnivalesque performances obtain their critical meaning by referring to the social struc ture that subordinates carnival's celebrants.25 By abstracting carnivalesque gestures from their social context, Agamben ironically sacrifices exactly what made them rebellious in the first place. A carnival of pure gesture is a contradiction in terms and thus not a means for the construction of political subjectivity adequate to overcome the state and achieve passage to the com ing community.

Performances of Faith

A third political possibility exists in The Time That Remains, an engage ment with St. Paul's letter to the Romans, where Agamben refers to the remnant as the "only true political subject" that "dislodges our antiquated notions of a people and a democracy" (TTR, 57). The remnant is a term borrowed from messianic prophecy stating that, of the Israelites, upon sal vation, only a remnant will return, and it is defined as "not all" (TTR, 55).




Rejecting those who read St. Paul as a universalist, Agamben finds that Paul

subjects law's divisions to an additional division, and this second-order

division produces the remnant (TTR, 53).26 For example, starting from the

fundamental division of Jew and non-Jew, Paul, according to Agamben, divides this division with another cross-cutting separation-those who are

Jews in spirit or in the messianic law of breath, and those who are Jews in

the flesh. This division divides the category of the Jew (Jew according to

the breath, and Jew according to the flesh), and it divides the category of the non-Jew (non-Jew according to the breath, non-Jew according to the flesh).

The resulting category produced by Paul's second-order division is the

"non-non-Jew," or the remnant. The remnant is the instrument of salvation and it exists in messianic

time, which is the time of the now (TTR, 55-56). Messianic time is the sec

ular world, but, recalling Agamben's interest in Jewish theology, with a

slight adjustment (TTR, 69). How might we see things a little differently?

Perhaps we now see things in a new way because we heard the announce

ment of the apostle and were seized by its message (TTR, 70, 78). Agamben elaborates his understanding of the euaggelion, the joyful message promis ing salvation, and the effect of the announcement, in terms of speech act

theory. As Agamben explains, the "text of the letter is at every point indis

tinguishable from the announcement and the announcement from the good

announced." Thus, the "apostle seems to approximate an awareness of a particular performative power implicit in the promise" (TTR, 90-91). The announcement is potentiality. For it to pass over from potentiality to

become a successful speech act, the announcement requires the supplement of faith. Faith, which "consists in being fully persuaded of the necessary unity of promise and reality," makes potentiality active; it is "the announce ment's being in act, its energeia," the "principle of actuality and operativ ity" (TTR, 90-91). Inspired by the apostle's announcement, a remnant or

messianic community of the faithful becomes convinced "not in the psy

chological sense but in the ontological sense" (TTR, 91). A new manner of

being is born in the announcement. The announcement is "born ... in the faith of the one who utters it and

who hears and lives in it exclusively" (TTR, 91). The remnant, the com

munity of faithful, then, must live a certain way to be saved. They must

keep themselves in messianic law, indeed, "dwell in the law of the

Messiah," to remain the non-non-Jew (TTR, 51). To be so completely con

vinced in this ontological sense of the truth of the announcement, one must "strain forward" toward salvation (TTR, 78, quoting Phil. 3:13). To be fully faithful, one does not merely go through the motions and content oneself




with simply fulfilling the letter of the law and absolve oneself with the exclamation "Whatever!" should something unfortunate occur where one was not specifically bound to prevent it, or where, due to a lack of positive action on one's part, something good might have happened but did not. Faith signifies this going beyond the letter of the law to its infinite spirit, and grace (charis) signifies this excess manifested in use (chresis), in the very practice of everyday life (there where I am weak, I am strong) that nec essarily must exceed any written injunction or commandment, whether pos itive or negative. Here, law is truly coextensive with life (TTR, 107-20).

Although Agamben posits an active political subject in Time That Remains, his argument raises at least two questions of logical consistency-the prob lem the act poses for his theoretical edifice and the problem of having a con tradictory position on law-in light of his philosophical system. First, by actually producing an account of an active political subject-that is, one who is not content with merely "letting be" but who engages in acts-Agamben has produced a description of a political subject at odds with his earlier account of Bartleby as "the strongest objection against the principle of sov ereignty" because he "resists every possibility of deciding" (HS, 48). Rather than a theory of "pure means," we now have an apostle who comes forward

with a "determinate purpose," who searches for the right words (means) for the message (end or act) (TTR, 60). By positing an active subject, it no longer

makes sense to speak of "pure means." Nor does it make sense to "think the existence of potentiality without any relation to Being in the form of actual ity" in order to circumvent the problem of sovereign decisionism that yields an excluded or negated outside (HS, 47).

Let's consider the consequences of this first point. Agamben analyzes the announcement in terms of J. L. Austin's conception of performative speech acts (TTR, 13 1).27 As I illustrated above, the apostle's joyful mes sage might be likened to a performative speech act where language is not functioning denotatively but where language is action. What are the pre conditions for a successful speech act? To take one of Austin's examples of a performative speech act, if we are referring to the christening of a ship, we would want a ship, a bottle of champagne, an audience, and so on. In other words, the success of the performance is contingent upon its staging.

We also need to believe in the performance-that this is not a group of actors, say, being filmed (a simulation of a ship christening)-or, as Agamben helpfully reminds us, the announcement needs the complement of faith for it to pass from potentiality to actuality (TTR, 90). Finally, we would need to be able to secure this situation and perhaps this space against other possible uses, at least for the time it takes to christen the ship.28 This




means that other possible performatives-like a promise to develop this waterfront for X amount of money with luxury condos and a shopping mall-must not have occurred. Therefore, a particular situation, the pre conditions for a successful performative speech act, must be secured for the announcement's success. The faithful, that is, would have to make deci sions and perhaps even act with a certain measure of militancy to continue to maintain the security of the situation that enables the possibility of the truth of the announcement against other possible speech acts and their cor

responding subjects and situations.29 Agamben's philosopher-theologian St. Paul might thus require a hidden reliance upon Alain Badiou's anti philosophy, politically militant St. Paul as his very condition of possibility.

Second, in order that his active messianic subjects take correct rather than misguided actions, Agamben is forced to take a position on law that contradicts the rejection of law that he advocates in Homo Sacer and State of Exception when he is engaged in a critique of the state. In Homo Sacer, Agamben urges his readers to "think the Being of abandonment beyond every idea of law (even that of the empty form of law's being in force with out significance)" in order to move "out of the paradox of sovereignty toward a politics freed from every ban" (HS, 59). In State of Exception,

Agamben cites Benjamin's aspiration for a world that "absolutely cannot be appropriated or made juridical." Passage to this world would be marked by the day when "humanity will play with law just as children play with dis used objects, not in order to restore them to their canonical use but to free them from it for good" (SE, 64). Here, law appears as a dead language something that can be played with, perhaps even studiously, but does not inspire subjects.30 A dead language's rules are susceptible to being learned from the outside, but as long as its students remain in a relation of instru

mental exteriority to the dead language, it would not produce subjects. Likening law to a dead language, something we play with without purpose, could not be further from Agamben's description of dwelling in messianic law once we have become seized by the apostle's (that emissary with a def inite purpose that is now ours) announcement (TTR, 60)-becoming, that is, faithful subjects to the messianic situation and thus maintaining it through faithful adherence to its law.

There are passages in Time That Remains where Agamben appears to retain the antinomialism of Homo Sacer, such as his discussion of the Franciscan advocacy of usus (use) against property (TTR, 27). I believe, how

ever, that Agamben's analysis in Time That Remains points toward a more complicated relation to law. According to Agamben, Paul "almost sound[s] strongly antinomial" (TTR, 93; emphasis added). Yet Paul "repeatedly seeks




to reaffirm the sanctity and goodness of the law without any lingering strate gic cunning ... to articulate a far more complex relation between promise, faith, and law" (TTR, 93-94). Faith, Agamben reminds us, never loses its tie to the juridical sphere, from its complex relation to law, politics, and religion in the ancient world, to the critical reliance of modem law upon a notion of

bonafides (good faith) (TTR, 116). An effort to maintain a messianic situa tion requires a more complex relation to law than simply attempting to think "beyond every idea of law" (HS, 59).

By positing political subjects adequate to the messianic situation, Agamben seeks to inspire not only action, but proper action, that is, good acts. Moreover, as we would expect Agamben to recall from his studies of Schmitt, only chaos has no law.3' Insofar as he seeks to inspire a messianic situation, then, there would also correspond to this situation a law or laws to help its subjects understand what this messianic situation is or ought to be. Law and legal subjects exist in a mutually constituting relation, and Agamben seeks to inspire subjects oriented in a particular manner.32 Hence the reappearance of law in Time That Remains. Of course, as I suggested above, no formulation or formulations could possibly encompass the infi nite number of actions and inactions that would be required of those dwelling in messianic law. Thus, Agamben complicates what might appear to be a Pauline antinomialism. Paul does not negate law-he is in God's law, the law of faith and spirit. This is the law manifested in the promise to Abraham rather than later attempts to innumerate dos and don'ts-for example, Mosaic law-which has been suspended, but not annulled, in messianic time.33 How will we know what (not) to do if law is not textual ized? Agamben responds as John Locke might have: "it is not a letter writ ten in ink on tables of stone; rather, it is written with the breath of God on the hearts of flesh" (TTR, 122). Law and life, as in the state of exception, are made coextensive.34

There is a nonnormative aspect to messianic law (TTR, 95). Does this mean a law that neither prescribes nor prohibits anything? A "law" that nei ther prescribed nor prohibited would not be law. It would be a dead letter, but not a law to which we would be faithful and which we would animate (and be animated by) in our daily lives. The nonnormative aspect of law is nomos pisteos, the law of faith, the promissive aspect of law.35 That said, Agamben does not fully forgo textualizing law, citing Paul's recapitulation of the entirety of God's law with the following formula: "Love your neigh bor as yourself' (TTR, 76). Privileging the spirit over the letter of the law maintains law's openness and responsiveness to the infinite circumstances of human life requiring messianic acts. In this sense, being faithful to the




law is, strictly speaking, unformulatable in an absolute sense (TTR, 105).36 Just because this excessive aspect of the demand to act in good faith or in

the spirit of the law is unformulatable in an absolute sense, however, does not sever the relation of this injunction to law. Moreover, there are an infi nite number of wrong acts to be committed in these same circumstances if we are not careful to maintain the messianic situation. Thus, Agamben cor

rectly refers to law as a "'pedagogue' leading to the messianic" (TTR, 120, citing Gal. 3:24). If he is to maintain the messianic situation, Agamben requires faithful legal subjects, subjects faithful to messianic law. He

requires subjects who will live this law. Agamben's gesture toward the mes

sianic in Time That Remains, then, leads him to a different position than the

position on law that he suggests in State of Exception. These two contra

dictory approaches to law-antinomialism when criticizing the state in

Homo Sacer and State of Exception, and a more complicated relation to law

when engaged in a more positive project in Time That Remains requiring acts and decisions with a definite purpose at heart-manifest the ambiva

lence to law that we find in the Marxist legacy of critical theory for the last

hundred years.37 This changed relation to potentiality through an appropriation of speech

act theory, on one hand, and law and law's divisive nature, on the other, however, presents certain problems regarding Agamben's aspiration for a

coming community beyond exclusion-the very purpose of relocating analysis to the field of ontology. As good as love sounds, what if some do not want to be so loved? What of those who do not want to be part of this Judeo-Christian tradition? What of those who might resist the missionary's appeal, fearing that "love" is a cover for colonialism? What of those who either do not want to be part of this messianic situation or might resist its faithful who live by its law? In other words, once Agamben posits active political subjects who might effect a passage from contemporary society and its ever more frequent states of emergency to a "coming community" or "messianic time," he requires that a situation be constituted and main tained through the acts of the faithful who adhere to its law-a situation that is the precondition for the successful performance of the speech act that is the announcement. Of necessity, this situation must be secured against the infinite number of other ontological possibilities that might emerges to

force the speech act to misfire.38 While the business of politics is certainly to create the situation that will constitute the conditions of possibility for the successful speech act announcing our joyful message, the business of politics is also to concern ourselves with our relation to that which, will ingly or not, remains other to this situation and its call. In sum, despite his




move to "first philosophy," Agamben cannot avoid one of the basic prob lems of political philosophy-how should we relate to that which remains other to our situation? Should we relate to the other with hospitality?39 With militancy?40 As a political enemy in the shadow of death?4' Something in the middle?42 These are the questions that remain once we open the possi bility of active political subjects-questions to which Agamben's ontolog ical orientation can provide no answers.

Conclusion

I have argued that Agamben has two competing theories of the state in play within his work. His first theory of the state posits the state in a deter mined relation to the economy. From this position, he can more easily describe political change as the economic forces determining the state bear within them the seeds of the coming community. This is a theory, however, that disguises its reliance on a form of power to secure the conditions of pos sibility for a common relation to communicability, and he does not address the consequences of the possible weakening of that form of power-the globalization of spectacular capital-for the commonality that it enabled. If spectacular capital should weaken, on one hand, or if it produces not commonality but polarities, on the other, then presumably the commonality that it theoretically enabled would either wane with the weakening of this power formation or simply not exist.

Agamben's second theory of the state posits the state as a determining force over human life. Agamben establishes the state in this determining position by borrowing from Schmitt's theory of sovereign decisionism. Yet, in so doing, he erects a theoretical roadblock preventing passage to the coming community. Although I have suggested that he has conceived of three possible ways whereby subjects might decide to act to render this state power inoperative or perform actions enabling the suspension of sov ereign law and messianic passage beyond this sovereign state, each of these three forms of political subjectivity fails to do the theoretical work demanded of it.

Bartleby's manifestation of a pure potentiality might render inoperative modern state government as Foucault has described it by disrupting the linkages among the series of institutions and subjects that the modern state relies upon to govern, but it is unclear how Bartleby would affect the Schmittian unitary sovereign decision maker upon which Agamben bases his theory of the state in Homo Sacer. Agamben also points to anomic




carnivals to suggest that states of emergency can become something more, and his theory of the gesture might contribute to a description of how a car nival might become something politically revolutionary. This would require, however, forcing the gesture into a relation of transcendence with regard to carnivalesque performances-an unacceptable move for a theory that embraces immanence to the extent that Agamben does. It also misrep resents why the carnivalesque harbors emancipatory political potential within it. Finally, Agamben indicates, through the example of the apostle Paul and the remnant of those who faithfully adhere to messianic law, the possibility of active political subjects adequate to the challenge of state sov ereignty. This argument, however, contradicts his earlier positions embrac ing potentiality over the acts emblematic of sovereign decisions, and an experience of being beyond any idea of law. It also, by relying on a deter minate situation to create the conditions of possibility for a successful speech act, occludes the forms of power needed to maintain this situation against other ontological possibilities much as his first theory of passage beyond the state of integrated spectacle did. This argument also begs the question of how this messianic community might relate to that which remains other to its situation. That is, Agamben must address the very ques tions that his ontological approach to state sovereignty intended to avoid questions of power and otherness. In sum, Agamben remains haunted by the very problems that motivated not only his critique of the state but also his attempt to remove this inquiry from political philosophy to "first" phi losophy.43 At the end of Agamben's theory of the state, politics remains.

There are four implications of this critique for political theory and the state. First, the modem state is poorly understood as transcendent, unitary, and sovereign. The "state" encompasses a variety of institutions, many of which predate modernity.4 The Foucauldian understanding of government, I suggested, is the practice by which articulations between these institutions are forged-and non-state institutions are joined to this chain-and they are mobilized toward various purposes. The plural nature of this ensemble is precisely what gives extension to the modem state.45

Second, if we treat the state as an ensemble of institutions, then the con cept of a state of emergency is poorly suited to understanding our political present. Agamben rightly criticizes the USA PATRIOT Act in State of Exception. This law, like most laws that are passed in an ongoing legal sys tem, amends a variety of other laws and sits on a foundation created by these other laws, such as the Antiterrorism and Effective Death Penalty Act of 1996. The Antiterrorism Act created the possibility of attributing guilt by association since it criminalized the provision of material support for




organizations that the administration deems "terrorist"-provisions that the

USA PATRIOT Act builds upon.46 From this perspective, current policies

are less "exceptional," unfortunately, and more a continuing development

of a national security state apparatus that has been built through legislation

like the National Security Act of 1947, through discourse, and through the

creation of stakeholders (the military-industrial complex).47 In other words,

another state formation is struggling to emerge through the ruin of liberal

democracy in the United States, and this emergence (and ruin) is hastened

by those who seek to enhance surveillance and presidential powers, while

diminishing the power of courts and legislative oversight as a response to

September 11, 2001.48 Third, any social formation is constituted by elements of both contin

gency and determination. By emphasizing pure potentiality, Agamben

misses this and either cherishes the excessive quality of pure potentiality to

the neglect of the exigent needs of the present, or neglects how the active

political subjects he does defend are embedded within finite commitments

that necessarily persevere through the foreclosure of other possibilities.

Some contemporary political theorists concerned with injustice and the

lack of democracy also emphasize contingency, excess, and potentiality over determination, finitude, and acts.49 These theorists correctly seek to

disrupt oppressive patterns. Since politics-hence political change-would not be possible under conditions of absolute determination, emphasizing

contingency or excess makes sense. Yet reflection upon the retraction of

certain state services from places like the Bronx during the late 1970s per

mits us to see how neither justice nor democracy is served by excessive eco

nomic duress or violence. Not only are these contingencies unjust, but also

their incapacitating effects prevent democratic practices of government

where the latter necessarily presupposes some collective capacity to direct

and achieve collective purposes. State actions that mitigate chaos, eco

nomic inequality, and violence, then, potentially contribute to the improved

justice of outcomes and democracy. Political theorists must temper cele

brating contingency with a simultaneous consideration of the complicated

relation that determination has to democratic purposes.50 Fourth, the state's institutions are among the few with the capacity to

respond to the exigency of human needs identified by political theorists.

These actions will necessarily be finite and less than wholly adequate, but

responsibility may lie on the side of acknowledging these limitations and

seeking to redress what is lacking in state action rather than calling for pure

potentiality and an end to the state. We may conclude that claims to justice

or democracy based on the wish to rid ourselves of the state once and for




all are like George W. Bush claiming to be an environmentalist because he

has proposed converting all of our cars so that they will run on hydrogen.5" Meanwhile, in the here and now, there are urgent claims that demand finite acts that by definition will be both divisive and less than what a situation demands.52 In the end, the state remains. Let us defend this state of due process and equal protection against its ruinous other.

Notes

1. Andrew Norris, ed., Politics, Metaphysics, and Death: Essays on Giorgio Agamben's Homo Sacer (Durham, N.C.: Duke University Press, 2005).

2. Judith Butler, Precarious Life: The Powers of Mourning and Violence (New York: Verso,

2004). 3. Jay Bybee, "Memorandum for Alberto Gonzales," August 1, 2002, in Torture and Truth,

ed. Mark Danner (New York: New York Review of Books, 2004). This memo is said to have

been ghost-authored by John Yoo.

4. John Yoo, The Powers of War and Peace (Chicago: University of Chicago Press, 2005), 151.

5. Military Commissions Act of 2006, Public Law 109-366; Michael Ratner and Ellen Ray, Guant?namo: What the World Should Know (White River Junction, Vt: Chelsea Green, 2004); and David Rose, Guant?namo: The War on Human Rights (New York: New Press, 2004).

6. See also Michael Hardt and Antonio Negri, Empire (Cambridge, Mass.: Harvard

University Press, 2000); and Jean-Luc Nancy, Being Singular Plural, trans. Robert Richardson

and Anne O'Byrne (Stanford, Calif: Stanford University Press, 2000). 7. Giorgio Agamben, The Coming Community, trans. Michael Hardt (1990; reprint,

Minneapolis: University of Minnesota Press, 1993). Further references to this and Agamben's other works will be made parenthetically within the text. The Coming Community will be

abbreviated as CC. His other works that I will reference include Giorgio Agamben, Homo

Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (HS; 1995; reprint, Stanford, Calif: Stanford University Press, 1998); Giorgio Agamben, "The Thing Itself (TI;

1984), and "The Idea of Language" (IL; 1984), in Potentialities: Collected Essays in

Philosophy, trans. Daniel Heller-Roazen (Stanford, Calif: Stanford University Press, 1999), 27-38 and 39-47 respectively; Giorgio Agamben, Remnants of Auschwitz: The Witness and the

Archive, trans. Daniel Heller-Roazen (RA; Cambridge, Mass.: MIT Press, 1999); Giorgio

Agamben, Means without End: Notes on Politics, trans. Vincenzo Binetti and Cesare Casarino

(MWE; 1996; reprint, Minneapolis: University of Minnesota Press, 2000); Giorgio Agamben, The Time That Remains: A Commentary on the Letter to the Romans, trans. Patricia Dailey

(TTR; 2000; reprint, Stanford, Calif: Stanford University Press, 2005); and Giorgio Agamben, State of Exception, trans. Kevin Attell (SE; 2003; reprint, Chicago: University of Chicago Press, 2005).

8. Guy Debord, Society of the Spectacle (1967; reprint, Detroit: Black & Red, 1983); and

Guy Debord, Comments on the Society of the Spectacle (New York: Verso, 1998). 9. One might note the close similarity between Agamben's argument here and that of

Michael Hardt and Antonio Negri in Empire. For an introduction to the thought of Hardt and

Negri, see Paul A. Passavant and Jodi Dean, eds., Empire's New Clothes: Reading Hardt and

Negri (New York: Routledge, 2004).




10.1 owe this insight to communication with Jodi Dean.

11. David Harvey, A Brief History of Neoliberalism (Oxford: Oxford University Press,

2005). The geographic literature discussing how economic inequalities are being translated

geographically is massive. See Theresa Caldeira, "Fortified Enclaves: The New Urban

Segregation," Public Culture 8 (1996): 303-28; and Mike Davis, Planet of the Slums (New York: Verso, 2006).

12. V N. Volosinov, Marxism and the Philosophy of Language, trans. Ladislav Matejka and I. R. Titunik (Cambridge, Mass.: MIT Press, 1986), 23.

13. Carl Schmitt, Political Theology, trans. George Schwab (Cambridge, Mass.: MIT

Press, 1988); Carl Schmitt, Concept of the Political, trans. George Schwab (Chicago:

University of Chicago Press, 1996); and HS, 15-16.

14. Schmitt, Concept of the Political, 61, 38-39.

15. Schmitt, Political Theology, 5,1. 16. By using this analogy, Agamben is highlighting the need to think politics and commu

nity beyond sovereignty due to his interest in getting beyond a negative relation to an outside.

17. Relation would relate two distinct, hence to some degree separated, things. Connection

would also imply difference and separation. Connection might also lead to a constitutive

exclusion as these two things were connected while, say, a third was left out. We might note,

however, that only absolute alterity or absolute otherness (God?) could remain beyond rela

tion. In other words, relation implies relating to others. See Rudolphe Gasch?, Of Minimal

Things: Studies on the Notion of Relation (Stanford, Calif: Stanford University Press, 1999). 18. Walter Benjamin, "Critique of Violence," in Walter Benjamin, One-Way Street and

Other Writings, trans. Edmund Jephcott and Kingsley Shorter (London: New Left Books,

1979), 132-56.

19. Michel Foucault, "The Subject and Power," Critical Inquiry 8 (Summer 1982): 786,788. 20. Ibid., 790.

21. Ibid.

22. Ibid. See also Nikolas Rose, The Powers of Freedom (Cambridge: Cambridge University Press, 1999); Graham Burchell, "Liberal Government and Techniques of the Self," in Foucault

and Political Reason: Liberalism, Neo-liberalism, and Rationalities of Government, ed. Andrew

Barry, Thomas Osborne, Nikolas Rose (Chicago: University of Chicago Press, 1996); Vikki Bell, "The Promise of Freedom and the Performance of Freedom," in Barry, Osborne, and Rose, Foucault and Political Reason; and Paul A. Passavant, "The Strong Neo-liberal State: Crime,

Consumption, Government," Theory and Event 8, no. 3 (2005). 23. Mikhail Bakhtin, Rabelais and His World (Cambridge, Mass.: MIT Press, 1968);

Peter Stallybrass and Allon White, The Politics and Poetics of Transgression (Ithaca, N.Y:

Cornell University Press, 1986); and John Fiske, Television Culture (New York: Routledge,

1987), ch. 13.

24. Stallybrass and White, Politics and Poetics of Transgression, 13, 16.

25. For instance, coffeehouses in seventeenth-century Great Britain functioned as a "site

of assembly" for the bourgeois, with elaborate rules of patron conduct both for the control of

its space and to distinguish it socially from the more "popular" taverns and alehouses. They were also centers of bourgeois commercial and political organization. See ibid., 94-100.

26. For another rendering of St. Paul, see Alain Badiou, Saint Paul: The Foundation of

Universalism, trans. Ray Brassier (Stanford, Calif: Stanford University Press, 2003). 27. J. L. Austin, How to Do Things with Words (Cambridge, Mass.: Harvard University

Press, 1962). 28. In Austin's initial introduction of performatives, he notes that they rely on "appropri

ate circumstances"; ibid., 6.




29. Alain Badiou, Ethics: An Essay on the Understanding of Evil, trans. Peter Hallward

(New York: Verso, 2001); and Badiou, Saint Paul.

30. In Remnants of Auschwitz, Agamben recognizes that a dead language does not inspire subjects; RA, 160.

31. Schmitt, Political Theology, 12-13.

32. All law is situational law: a normal situation is necessary for a legal norm's validity, and chaos has no law. See Schmitt, Political Theology, 13; for a study informed by this

approach to law, see Paul A. Passavant, No Escape: Freedom of Speech and the Paradox of Rights (New York: New York University Press, 2002).

33. Of course, to Derridean ears, Agamben's oral or phonocentric approach to law sounds

like what Derrida would call an approach unable to free itself from the metaphysics of pres ence. See Jacques Derrida, Of Grammatology, trans. Gayatri Spivak (Baltimore: Johns

Hopkins University Press, 1976). 34. This approach to law, however, cannot escape the problem of diff?rance through the

sheer assertion that the word of his law does not suffer ruin thanks to the nearness of the word to us for its having been inscribed upon our hearts with God's breath.

35. The distinction between law of faith and law of works is not "an antinomy that involves

two, unrelated and completely heterogeneous principles." Instead, Agamben argues, "the

opposition lies within the nomos itself (TTR, 95). 36. On law's ambivalence between indeterminacy and determination as it seeks both to

encompass everything while simultaneously providing a rule by which to govern conduct, see

Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University Press, 2001).

37. Compare Zenon Bankowski, "Anarchism, Marxism and the Critique of Law," in

Legality, Ideology, and the State, ed. David Sugarman (New York: Academic Press, 1983); with E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York: Pantheon, 1975), 258-69. Hardt and Negri's Empire is symptomatic of this ambivalence. See Paul A.

Passavant, "From Empire's Law to the Multitude's Rights: Law, Representation, Revolution," in Passavant and Dean, Empire's New Clothes, 95-120. In an essay written prior to the English translation of Time That Remains, Andreas Kalyvas anticipates Agamben's ironic relation to law with the wry comment that since Agamben describes how the camp, in order to become unmediated power, had to create a rightless people through legal dispossession, it is therefore "reasonable to infer that had these rights not been revoked, the camp might not have been pos sible." See Andreas Kalyvas, "The Sovereign Weaver: Beyond the Camp," in Norris, Politics,

Metaphysics, and Death, 107-34, 115.

38. Badiou, Ethics; and Badiou, Saint Paul.

39. Jacques Derrida, Of Hospitality, trans. Rachel Bowlby (Stanford, Calif.: Stanford

University Press, 2000); and Jacques Derrida, "Hostipitality," in Acts of Religion, ed. Jacques Derrida and Gil Anidjar (New York: Routledge, 2002), 356-420.

40. Badiou, Ethics; and Badiou, Saint Paul.

41. Schmitt, Concept of the Political.

42. Chantal Mouffe, The Democratic Paradox (New York: Verso, 2000). 43. For a recent approach to politics that is not primarily focused on the question of ontol

ogy, see Jodi Dean, Zizek's Politics (New York: Routledge, 2006). 44. Michel Foucault, Discipline and Punish, trans. Alan Sheridan (New York: Vintage,

1979), is a story about a premodern institution that takes on new functions and new signifi cance in the modern era.

45. Passavant, "The Strong Neo-liberal State."




46. David Cole and James Dempsey, Terrorism and the Constitution, 3rd ed. (New York:

New Press, 2006), 135-38.

47. Amy Zegart, Flawed by Design: The Evolution of the CIA, JCS, and NSC (Stanford, Calif: Stanford University Press, 1999). I discuss how the neoliberal state differs from the

Cold War national security state in Passavant, "The Strong Neo-liberal State."

48. Kim Lane Scheppele, "Law in a Time of Emergency: States of Exception and the

Temptations of 9/11," University of Pennsylvania Journal of Constitutional Law 6 (2004): 1001-80. Yoo, Powers of War and Peace, is an example of the emergent legal regime.

49. Hardt and Negri, Empire. 50. Jacques Derrida, Rogues, trans. Pascale-Anne Brault and Michael Naas (Stanford,

Calif: Stanford University Press, 2005). 51. The radical anti-statism of Empire, in contrast with the moderation of some of Hardt's

and Negri's reform proposals, such as greater transparency and accountability for institutions

like the World Bank and International Monetary Fund, in Multitude, enables this analogy. See

Michael Hardt and Antonio Negri, Multitude (New York: Penguin, 2004). 52. On the urgency of the call of democracy, see Derrida, Rogues, 84.

Paul A. Passavant is an associate professor of political science at Hobart and William Smith

Colleges. He is the author of No Escape: Freedom of Speech and the Paradox of Rights (New

York University Press, 2002); and the editor, with Jodi Dean, of Empire's New Clothes:

Reading Hardt and Negri (Routledge, 2004).



Documents

The Contradictory State of Giorgio Agamben