“Arms, and the man I sing, who, forc’d by fate,
And haughty Juno’s unrelenting hate,
Expell’d and exil’d, left the Trojan shore.”
– Virgil, Aeneid.
Is it a coincidence that the Aeneid, one of the founding texts of Western culture, the establishing myth of Rome, begins with the word ‘Arma’, or ‘arms’? Is war really the foundation of the West? Recent events seem to indicate that Virgil was not really that far off the mark. On the 25th of July, the American House of Representatives voted against the amendments to put boundaries on the NSA and its PRISM-program. The main defence for violating the public’s privacy and keeping the country and the world in a state of exception, instigated by the Patriot Act that makes PRISM legally possible, is fear. As senator Mike Rogers said:” Have 12 years gone by and our memories faded so badly that we forgot what happened on September 11?” The War on Terror is driven by a logic that makes peace impossible and war perpetual. “Forc’d by fate” we are “expell’d and exil’d” and encounter only arms. I will support my accusation by appealing to the work of Giorgio Agamben, an Italian philosopher who has worked on subjects as the state of exception, sovereignty and the law.
The sovereign and the homo sacer
Agamben begins his book Homo sacer with the so-called ‘paradox of sovereignty’. In every juridical system there has to be an ultimate authority or sovereign who, on the one hand, stands outside the law, but, on the other hand, stands within it. He stands above the law and yet his authority is founded on the law. As a result the sovereign’s power over the law is only granted as long as the people to whom the law applies obey the sovereign. Whenever people stop complying with legal authority, the emperor is shown to wear no clothes. The sovereign cannot answer by criminalizing the dissenting, since the simple fact of disregarding the law does not necessarily imply that they break it. A group of Turkish protesters planning a sit-in in Gezi Park are not performing any criminal act and yet they upset the authority of the law and hence also of the sovereign. The latter can therefore only react by appealing to the state of exception. The sovereign suspends the law in order to force obedience and reinstate order.
In the state of exception the law refers to all legal subjects without actually applying to them. Their rights are suspended, but still exist. The exception is an inclusive exclusion, which means that the people are included in the juridical order by being excluded from it. The protestors from our previous example no longer fall under the rule of law, but this does not mean that the law is no longer interested in them. Prime Minister Erdogan did not suspend the law in order to let the protestors be. On the contrary, the withdrawal of the law makes room for a far greater force. As a result, the law exiles to protestors to a state of abandonment. This banished life is what Agamben calls the bare life of the homo sacer.
The homo sacer is a figure from ancient Roman law. He is the person that can be killed by everyone without this being homicide, but he cannot be sacrificed to the gods. Both human and divine law abandon this person in order for him to become bare life. Normally life was divided into mere natural life (zoè) and political life in a social community (bios). Bare life is the zone of indistinction between the two, it is politicized natural life, since it is cut off from the community and yet still political.
The homo sacer and the sovereign appear to be symmetrical figures in the state of exception. The former is that person for whom everyone is a sovereign, while the latter is the one for whom everyone is a homo sacer. The reason is that the sovereign, as supreme authority, has the power to expose the life of his subjects to death in war or the death penalty, without this being homicide. This symmetry is exactly the structure in which something like PRISM can arise. In the War on Terror, everyone is a potential terrorist and therefore everyone should be immediately subjected to control without having to bother with civil rights. The Patriot Act shows that nowadays the state of exception has become the rule. We all live our normal lives as immediate subjects of the sovereign who can imprison and kill us every instant without a trial. Guantanamo does not need an arrest warrant or proof of any guilt.
The state of exception and the state of nature
In his book Agamben links the state of exception to Hobbes’s state of nature. The latter is in fact the extreme scenario of the former. For Hobbes the sovereign is necessary to avoid society falling into a kind of barbarism where we are all in a ‘war of all against all’, which means that when the law is suspended there is a tendency towards anarchic chaos. The sovereign then appropriates the use of violence for himself, his police and army forces and the war of all against all is pacified. When the sovereign himself suspends the law, the state of nature is again revealed. Normally such a suspension is temporary, which makes a relapse into omnipresent violence rather unlikely. When, however, the state of exception becomes permanent, the lives of men are yet again ‘solitary, poor, nasty, brutish and short’. Everyone becomes bare life and everyone becomes a sovereign entitled to kill that life. This is what happens in times of mass hysteria, for instance, during the aftermath of the Boston Marathon Bombings. Everyone was so afraid that a massive manhunt paralyzing a city and abolishing all privacy rights went uncriticized. Soldiers could simply enter houses and arrest anyone on the grounds of ‘protecting terrorists’, when people refused to grant them access. The police and the army had absolute control over the citizenry, while the latter stayed stupefied in their houses.
We can see now that the NSA-discourse is riddled by a vicious circle. It defends the state of exception on the grounds of avoiding a state of nature, but this same state of exception produces the state of nature during limit events (for instance, terrorist attacks). The discourse feeds on our fear that ‘man is a wolf for man’ and yet it produces this same situation as a self-fulfilling prophecy.
What is to be done? Politicization or not?
The main criticism is now that exceptional times call for exceptional measures. If we don’t allow a state of exception and the occasional relapse into the state of nature, we are under permanent attack of terrorists, who also produce a state of nature. They threaten to bomb us to the Stone Age! This is true and yet problematic. Once we are in the permanent state of exception, there is indeed no turning back. Yet this would not have been a problem if the sovereign had not proclaimed the state of exception in the first place. The sovereign instigates such a state when his authority is undermined by disobedience. When he had politicized the subject instead of exceptionalizing it, we would not be in such a situation. For instance, when Erdogan starts political debate about the Gezi Park and his conservative policies instead of answering all protests with violence in order to silence all protest, a state of exception would be unnecessary.
The question is whether politicization within the sphere of the law is possible. In philosophy this position corresponds to the agonistic theory of democracy defended by Chantal Mouffe and Ernesto Laclau. In political science securitization theory (e.g. Ole Waever) comes very close. They tend to substitute the notion of sovereignty for the concept of hegemony and claim that we can avoid the state of exception by letting agonism replace hegemony. Now the discourse of the rulers prevails through most societal networks (the media, political parties, etc.). As a result, every kind of dissidence is banned outside this discourse and deemed unreasonable beyond repair (think of the way terrorists are portrayed by politicians and the media). When the democratic system would incorporate different, competing discourses on how society functions and should function, the ban is no longer necessary. Politicization avoids exceptionalization.
Giorgio Agamben is more radical. According to him, the ban is the originary relation of law and life and therefore the state of exception is prior to all politicization. We can show his argument historically. In Roman law there is the figure of the vitae necisque potestas (power over life and death) that adheres to the head of the family (paterfamilias). The head of the family had the authority to kill his family members under certain conditions without this being homicide. The Romans however did not have a distinction between civil and public law, so the sovereign was the paterfamilias of all Roman citizens. This means that in order to become a political citizen, one first had to submit one’s life to sovereign authority. Engaging in politics presupposed becoming virtually a homo sacer. The same happens nowadays, although in a less obvious way. In order to become a political citizen and therefore to engage in politicized debate, one first needs to have citizenship of a certain nation-state. The jurisdiction of this nation-state is ultimately based on the territory over which it has sovereignty. The law grants citizenship, but has a spatially limited reach. Citizenship is therefore intimately linked to sovereignty and the sovereign is ‘he who decides on the state of exception’, as Carl Schmitt claims.
Is there then nothing left to do? Should Agamben have written on the cover of his book ”Abandon all hope ye who enter here”? Agamben mentions the solution Walter Benjamin, a German philosopher who reacted to the sequences of states of emergency in the nascent Weimar Republic and the rise of Nazism. The latter wrote that the virtual state of exception should be transformed in a real state of exception through divine violence. Of course, both Benjamin and Agamben remain very abstract about what that exactly means. The latter however gives a hint when he opposes the exception as inclusive exclusion to the example as exclusive inclusion. An exception includes an object from a class by excluding or withdrawing from it. The class abandons the object. An example works in the other direction. It excludes itself from a class by including itself in it. For instance, when someone asks for an example of a tree, you can mention an oak. The oak functions as an example of the class ‘tree’. This means that it constitutes in your mind the characteristics for what it means to belong to the class of trees. It includes itself in that class and yet it also ‘stands beside it’ as a paradigm. The Greek word paradeigma means ‘something that stands beside something else’. The example is in the class it delineates and yet we must see it as outside this class in order to apprehend it. If we would not view ‘oak’ as in some way separated from ‘trees’, then mentioning ‘oak’ would not help us to understand what a tree is, since we should then already know the latter to understand what an oak is. Agamben’s solution to the state of exception is that we should turn our bare lives into examples. We should make our lives into laws themselves. In the past we became citizen by submitting to a sovereign law outside ourselves. Now we should be (not make) our own law. Or, in the words of Michel Foucault:
“What strikes me is the fact that in our society, art has become something which is related only to objects and not to individuals, or to life. That art is something which is specialized or which is done by experts who are artists. But couldn’t everyone’s life become a work of art? Why should the lamp or the house be an art object, but not our life?”
G. Agamben, Homo sacer.
G. Agamben, State of exception.
S. DeCaroli, “Boundary stones: Giorgio Agamben and the field of sovereignty” in M. Calarco & S. DeCaroli (ed.), Giorgio Agamben: sovereignty and life, pp. 43-70.
T. Hobbes, Leviathan.
C. Schmitt, Political theology.
C. Mouffe & E. Laclau, Hegemony and socialist strategy.
O. Waever, B. Buzan & J. De Wilde, Security: a new framework for analysis.
W. Benjamin, “Theses on the philosophy of history” in Illuminations, pp. 253-265.