chapter  6
28 Pages

Daniel McLoughlin (2012), 'Giorgio Agamben on Security, Government and the Crisis of Law', Griffith Law Review, 21, pp. 680-707

Second, several commentators have argued that the state of exception is an inadequate analytical tool for understanding the complexities of contemporary politics as it focuses on law at the expense of other forms of political power and organisation. For example, in a barely veiled critique of Agamben in Commonwealth, Hardt and Negri criticise the 'apocalyptic tone' of contemporary critical theory. One of the decisive problems with this 'excessive focus' on the problem of authoritarianism, state violen ce and the sovereign exception is that 'economic and legal structures of power tend to be pushed back into the shadows,5 when these provide the horizon of intelligibility for contemporary state practices: 'the political is not an autonomous domain but one completely immersed in economic and legal structures,.6 In a similar vein, Steven Colatrella argues that Agamben's emphasis on law and sovereignty leads to a marginalisation of the economic and socio-political, and hence to a 'total inability to explain why something is happening rather than to show us that it is'. 7 A number of commentators have also argued that Agamben's fetishisation of sovereignty is potentially politically problematic as, without a systematic critique ofthe way in which the socio-political and economic structures of liberal societies are implicated in the development of security politics, the idea of the exception can play into a politics that moums and attempts to restore a lost liberal status quo. 8

This artic1e responds to these issues by analysing and extending Agamben's account ofthe crisis oflegality. lexamine the factors driving the normalisation of the state of exception, and c1arify how he understands the contemporary political conjuncture. I do so by drawing on the idea of biopolitics, which Agamben draws most explicitly from Michel Foucault, who argues that modernity sees the emergence of new forms of power devoted to 'the administration of bodies and the calculated management of life,9 that supplant and transform the juridical order. While the analysis of biopolitics plays a crucial role in the Homo Sacer project as a whole, it is conspicuously absent from State 0/ Exception's account of the crisis of liberal legality.l0 Nonetheless, it is c1ear that it does play an important (if subterranean) role in Agamben's thinking about the crisis of legality - indeed, the title ofthe first chapter, 'The State ofException as a Paradigm of Government', alludes to Foucault's lectures on government, which developed out ofhis analysis ofbiopolitics. ll

seems appropriate, given Agamben's use of Schmitt, to draw upon the German jurist. In Legality and Legitimacy, Schmitt describes the form of state that dominated nineteenth century Europe as a 'legislative state' (or Rechtstaat in the German tradition). This was astate form in which norms were the 'highest expression of community will, and in which 'not men and persons rule, but rather, where norms are valid'. 12 The pre-eminent body within the state was parliament, which did not rule directly but rather established 'valid norms', which were then applied by state officials who acted 'on the basis of law,.13 In Political Theology, however, Schmitt attempts to open aspace for discretionary state power through an analysis of the relationship between law, state and the emergency situation. Schmitt argues that 'there exists no norm that is applicable to chaos', 14 and hence the effective operation of the law requires a certain minimum of order. As such, if an 'extreme emergency' threatens the order that law needs to function, the state may take the decision to suspend the application of the law, thereby allowing it to take measures that are necessary to the restoration of order and the reapplication ofthe law. This decision is 'sovereign' because it is legally unrestricted: when looked at normatively, it 'emerges from nothingness' .15