Giorgio Agamben

Power, Law and the Uses of Criticism

Thanos Zartaloudis

• Publisher: Routledge-Cavendish
• Year: 2010
• Print ISBN: 9780415440226
• eBook ISBN: 9781135166755
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Giorgio Agamben: Power, Law and the Uses of Criticism is a thorough engagement with the thought of the influential Italian philosopher Giorgio Agamben. It explores Agamben's work on language, ontology, power, law and criticism from the 1970s to his most recent publications.

Introducing Agamben's work to a readership in legal theory, as well as in the humanities and social sciences more generally, Thanos Zartaloudis argues that an adequate understanding of Agamben's Homo Sacer project requires an attention to his earlier philosophical writings on language, ontology, power and time. It is through this attentive and creative analysis of Agamben's work that Zartaloudis here presents a rethinking of the ideas of justice and criticism.

Chapter 1
Sacred foundations: mythologemes of law and power

Introductory note

Over the last ten years one of my main preoccupations in legal theory has been the peculiar character of the structure implied in asking and answering the problematic question ‘what is law?’ I did not find satisfactory answers to this question in either conventional jurisprudence, in the gigantomachy between positivists and natural law theorists, which in late modern and so-called postmodern theories of law, pose a radical transcendent politics or ethics in the place of the foundation or origin of law, offer little other than the repetition of the same pseudo-referential form. I call it pseudo-referential as I perceive the answer to the question ‘what is law?’–‘The law is grounded in a transcendent Law of law’ – as an attempt to evade the question of the dogmatic foundations of law and of legal theory.

The obsessive attempts to find an answer through stipulating an ‘essence’ of law or an ‘originary or foundational’ meaning to and of ‘the law question’ did not appear adequate for reasons that I cannot analyse in detail in this work. Acknowledging what has been termed the ‘nomophilia’ of legal theory (and I would suggest of social and political theory in general), the use of a supposedly legal structuring in/of theorizing, the problem at hand appeared as a dogmatic problematization with regard to both the normative reality of law and the normative reality of the theories of law. What I perceive as a dogmatic problem, using the word dogma in a general sense, is the theoretical structure imposed in thinking law and politics (as well as ethics and society) through the form of a ‘Law of law’. That is to say: in answering the question of the origin of law through the presupposition of a hyper-normative, a supposedly transcendent, structure of law itself, the law manages to silence the fact that it attempts to juridify theorizing and life more generally.

Whereas one could see in this nomophiliac approach to law a merely, positive, acknowledgement of law’s self-referential system of truth and judgment, I further see a dogmatic juridification of truth, a legal selfreferential monotony that aims to silence its paradox of formation, rather than expose it as a problem or indeed as an embarrassment. Neither law, nor truth need to be defended. While the law in so-called modernity is perceived as a self-founding law, its self-foundation is not an answer to the question of ‘what is law?’ or ‘what is the foundation of law?’, but rather an attempt to silence its formation through violent means, through human acts. This is not to deny that law is an autopoietic system of its own making (law contains its own self-generative mechanism, i.e. precedent), but rather to assault the assumption that law can or should juridify the social or life. Or indeed, that law should assume for itself the rendering of legal foundations through violence as inevitable or unaccountable.

It needs to be stated that this work does not argue that conventional jurisprudential approaches (as in Rawls or Dworkin) have lost all relevance or indeed merit (quite the contrary), but rather to suggest that a different approach is undertaken in those theories in comparison to the manner of this work. It is, nonetheless, to accept that the old-European normative principles of universal reciprocity, consensus and rationality that inform such theories have stopped making sense. It is, also, to accept that law as well as normative claims to justice, more generally are not a legal monopoly and further that there cannot be a normative meta-principle that could unify all norms or ‘laws’. The integral problem of juridical laws remains that of achieving adequate complexity in relation to juridical consistency. But complexity is not deduced from some meta-principle or meta-normative foundation. Consistency does not preclude the acceptance of the fact that juridical forms and substantial elements are irritated by both extra-legal elements (that remain legally apt for consideration within the legal system) and by non-legal elements. The oldest distinction to be drawn and maintained is that between law and life, or that between the juridical and the non-juridical, the law of the two, to risk using the word law in a wider sense than the juridical. The central aim of this work is, then, to avoid the fusion of these two planes of law and life.

My approach to the ‘law question’ shares with natural law the impulse that the search for norms is not monopolized by law and yet that their source cannot be derived any longer by any origin or substance that would remain transcendent to human life or law. It also shares with positivist approaches the idea that while the law can observe for itself its answers to the question of, for instance, justice, the proper conceptual realm of justice is not to be found in the realms of the divine, the natural, the rational or the juridical. It also shares with late modern approaches to the ‘law question’ the acceptance of the fact that legal reasoning, in itself, cannot and does not justify legal decision-making (the indeterminacy thesis of legal reasoning). Legal decision-making necessarily contains arbitrary ruptures within its internal logic, irritations from non-rational, non-juridical aspects. My approach, finally, shares with the critique of so-called ‘postmodern’ legal theories the acceptance of the fact that the two predominant responses to legal contingency, on the one hand an obsession with juridical and political decisionism (Schmitt) and on the other hand an obsession with juridical indeterminacy (Critical Legal Studies), are inadequate not only in thinking the concept of law, but also in thinking the political and the ethical.¹ Both approaches attempt, unsuccessfully, to fuse a principle of transcendence with a principle of immanence, and vice versa, respectively. The problematic upbringing of these two twins, transcendence and immanence, remains the inherent problem of these approaches. This work will insist that such approaches continue to attempt to fuse law and life, or the juridical and the non-juridical, irrespective of their theoretical intentions. Without disregarding the benefits and the constraints of the juridical form and decision-making, as well as the important question of politics and ethics that so-called‘postmodern’ theories raise, I shall propose for two separate realms of law and life and for the need to think of law and of life in ways crucially different to earlier attempts. I shall also propose for a non-fusion of the juridical and the non-juridical in a manner that aims to avoid naïve antinomianisms or claims for the destruction of law. What is to be destroyed is the structure of the ‘Law of law’, the suggestion of non-juridical elements as juridical, primary or more progressive and so forth. It shall work under the assumption that laws as well as theories cannot achieve ‘ultimate’ justice or become the basis for revolutions. Instead, in theorizing, we have nothing to admit and nothing to recommend, in the manner of metanormative principles. To study the law, rather than advocating it, means to observe and safeguard the non-fusion of the juridical and the non-juridical, law and life. If a theoretical guideline with regard to the study of law as such is required, then it can best be expressed as follows: every time legal (and theoretical) decisions are proposed as other than merely made, that is, preceded and followed by the exposition of their own form as made, the study of law shall aim to embarrass the proponents of such views on the ground of a more radical empiricism.

It can be argued that English common law and Western law in general have inherited from theological discourses a number of concepts for the mythological schematization of the foundations of their institutions and principles, as well as for the formation of their obedient subjects. To simply state this as if it is self-evident or self-explanatory is not sufficient, let alone to suggest that such ‘inheritance’ is unproblematic. It should not be surprising that legal discourse has inherited forms and substantial principles from its originary theological realm, but this should not be perceived as an attempt to salvage theological discourse or indeed the theological discourse of law. Both theology and legal theory deny themselves as laws made (even to the point of denying the form of law). Instead, legal theory, while it cannot be closed into a legal structure, can only indicate modest and studious ‘escape routes’ which, however, must at all costs resist the perpetual temptation of taking themselves to be other than laws. The structure of a ‘Law of law’ is the shared

1 See Teubner, 2009.

apparatus of both theological and legal discourse in their attempt to fuse the legal and the extra-legal realms.

It is to be proposed in this chapter that a key exegetic device of the problematic structure of the ‘Law of law’ can be located in the scholastic distinction, from as early on as in the twelfth century, of two forms of power: an absolute power and an ordained or ordinary power. This distinction, originally a theological distinction and later a displaced canonist distinction, is a key moment in the genealogy of the Western conception of power (of the sovereignty of government). It is suggested that this distinction of powers, originally conceived in an attempt to mythologically define the omnipotence of divine power and later the omnipotence of legal and political sovereign power, comprises the earlier form of the long-modern conception of a transcendence-suffused image of intact government. It is to be posed, further, with Agamben, that such a theological understanding was in itself not originally a merely transcendence-suffused image of divine power, but instead, and from the start, an economic device in the mythologization of law and power. When the canonists borrowed this device, what they borrowed was not a mere transference of a trasncendence-suffused image of the omnipotence of power, but an economic apparatus of power, a mythologeme of government of ‘men and things’.

Throughout his work Agamben searches for an escape route from the realm of law’s triumphant self-consecration (most notably in the form of a ‘Law of law’). The focus of his work, in this sense, is the institutional integration of life and law. In rethinking both life and law it is taken for granted that law, as much as society or life, does not have a point of transcendental support that would guarantee authority or authenticity, other than its human construction as such. Thus, when in law, or in the conception of life, a surplus value or metanorm of a ‘Law of law’ or a ‘(bare) Life of life’ is postulated in the traditional image-suffused forms of a paramount or sovereign order or origin that are to be represented in the ‘higher’ (or ‘lower’) part of society, Agamben diagnoses a dogmatic formation of the spectacularization of power and of sovereign law.

This is particularly relevant today when the spreading of ‘Western’ and ‘non-Western’ fundamentalisms, the liturgical role played by politicians, jurists and the mass media, and the exponential juridification of human life attaches to the obsessive Western attempt to institutionalize humanity and to continue to attempt to link humanity and life to some all-justifying hyperbolic anthemic nature, finality or telos. Whereas today it is common to speak once more of the triumph or problem of secularization in order to once more locate problem-solving orchestrations, the preoccupation of Agamben and of this study is with the avoidance of such problem-solving apparatuses. Agamben’s work has often been perceived as quietist or nihilist precisely because Agamben is misunderstood. He is not in search of problem-solving recommendations, but rather attempts to expose the empirical remainders of such problem-solving recommendations that defy any attempt at a transhistorically preordained essence or substance. That this approach leads to the necessary questioning and collapse of well-established liberal legal distinctions and assumptions is to be welcomed as an attempt to assault the ‘story’ of the perpetual seizure of power, the perpetual colonization of a nonjuridical territory, the mythologization of life and of legal violence. That this approach is a welcome one does not, however, suggest that Agamben’s approach amends the search for metanormati...

Table of contents

• Nomikoi: Critical Legal Thinkers
• Contents
• Preface
• Chapter 1 Sacred foundations: mythologemes of law and power
• Chapter 2 From transcendental sovereignty to neo-governmentality: the oikonomia of power
• Chapter 3 Secular sovereignty: a gigantomachy over a void
• Chapter 4 The biopolitical nomos of insignificant lives
• Chapter 5 The sacrament of power and the sacrament of language
• Chapter 6 The experience of potentiality
• Chapter 7 The idea of justice
• Bibliography
• Index