Law and life

This chapter shifts perspective from the value of life to the function and meaning of life in the biopolitical. The preceding chapter argued that this form of politics is not constituted by a rule of law so much as by power over bare life in a permeating and diverse realm of biopower. The analysis of bioethics as a form of jurisprudence revealed there to be a death-focused aspect of law in a biopolitical situation where life becomes both an object and a primary value. This chapter delves deeper into the relationship between law and life than the bioethical approach. The work of Giorgio Agamben will be useful in this regard in several ways. It develops a theory of biopolitics in response to some of the most pressing issues in legal theory currently: a so-called crisis of sovereignty and state-based law in the context of globalisation and the rise of powerful non-state actors, the geo-political realm. His thesis is also distinct in that it dissociates sovereignty from the nation state. In short, Agamben argues that the rule of law at the national level is essentially breaking down and that national states are increasingly operating in ‘states of exception’ where the rule of law does not obtain, but legal authority – or law’s force, i.e. sovereignty – continues to operate in a relatively arbitrary fashion. (Here, it is useful to note how he refers to the etymology of the word ‘sovereignty’ in German – Gewalt – which is translated in English as both ‘violence’ and ‘sovereignty’.) Understanding the way he formulates the relationship between law and

sovereignty is essential to assessing his contributions to political and legal theory, for while evidently Agamben’s theory depends to quite a degree on Foucault’s definition of sovereignty and biopower, in Agamben’s version, sovereignty is not the historical form of power but the ontology of law as such, something which is today no longer localisable in the king, the state or the rule of law. Specifically, he argues that the relationship between sovereignty and law has an essentially biopolitical structure: it is ‘based on the body exposed to death’ (1998: 122). It does not involve an absolute limit but depends on ‘the enrolment and the filing away of the most private and incommunicable aspect of subjectivity: I mean the body’s biological life’ (Agamben 2004). Received political concepts must be ‘revised without

reserve’ in light of the proliferation of such procedures across the globe (Agamben 1998: 12). One of the more important of these categories is that of rights. Referencing

Hannah Arendt on rights being continuous with citizenship, Agamben discusses how legal rights depend on the decision between outside and inside the law; thus, the meaning of rights is tied to ‘the fate of the modern nationstate in such a way that the waning of the latter necessarily implies the obsolescence of the former’ (Agamben 1996: 161). He points out that even discourses of human rights depend in the last instance on national forms of sovereignty for juridical status (1996: 161-62). It is also informed by debates around the shifts in the political and scientific meanings of life and death discussed in the previous chapter. Agamben’s concern is with the underlying political structure of sovereignty that is evident in the promulgation of states of exception. In this sense, his approach is rather different from other legal theories that call for limiting national sovereignty in response to the challenges of geopolitics through international law and supranational institutions (Ignatieff 2001; May 2005).38 While we are in the midst of an ‘unstoppable decline of the nation-state and the general corrosion of traditional political-juridical categories’ (Agamben 1996: 16), the implication of the internationalisation of law is a ‘crisis’ for the nation as a sovereign political order, but not necessarily for sovereignty per se. While the implications of his thesis are profound, critics have expressed

confusion over apparent irreconcilabilities in his text. Indeed, one way of approaching Agamben’s position is to consider the controversy it has generated. For example, in a review of the original Italian edition of State of Exception, Antonio Negri called Agamben’s critique of sovereignty fatalistic, which he contrasts with the optimism evident elsewhere in his other writing on politics after sovereignty (2003). His analysis of sovereignty of biopolitics is engaged in a ‘fated … continuous confrontation with the idea of death’ (Negri 2003). Indeed, one of his most well-known contributions is to suggest that a more appropriate model for conceiving our current political situation is not the Greek polis but the concentration camp (Agamben 1998: 123, 175-76; 2005: 2-4). Negri then notes that in other works Agamben’s theory sustains ‘the idea of [political] redemption’ (2003). These texts are shot through with gestures towards a utopian politics, a politics after sovereignty, where the force of law is inoperative and law becomes something to be cited, ‘played with’ and even enjoyed (Agamben 1993a, 2000). In a sense, therefore, there are ‘two Agambens’, one who goes ‘ethically and conceptually’ beyond sovereignty and another who leaves us asking ‘How is it possible to structure the world that [the] ontological approach constitutes?’ (Negri 2003). This heuristic inspired by Negri’s review of ‘two Agambens’ will be used

as a point of entry to consider Agamben’s work in some detail. In order to make sense of the apparent discontinuity between the two, it turns to some of his writings on first philosophy and language, which do not correspond

easily to the typology of ‘two Agambens’ (Agamben 1999). This discussion explores the value of Agamben’s approach beyond the bioethical sensibility for thinking the political implications of first principles are based on life on the one hand and violence and law on the other. These elements of his work offer unique insights for addressing the connection between law and life discussed in the previous chapter. The Lacanian ethical framework already laid out is compatible, in at least a limited sense, with Agamben’s conception of law. Both imply not universal principles but a threshold where moral and legal categories lose significance and the force of law remains. The affinity is evident in the work of Slavoj Žižek, whose discussions of the connection between law and violence will be used to stage a debate with Agamben’s formulation of law in order to produce a synthetic account of biopolitical sovereignty. The chapter concludes with a meditation on what Agamben’s theory implies about the relationship of violence and law.