The Triangle of the Sovereign, the Bare Life and the Camp
In his book Homo Sacer: Sovereign Power and Bare Life, the Italian philosopher Giorgio Agamben commends Michel Foucault for having coined the neologism biopolitics to capture a series of new developments in the modern political world. Biopolitics marks, according to Foucault, an important political shift from the territorial State to the population State (Fassin 2006). This new form of State, that emerges around the very end of the 17th century, differs from its predecessor in that it cares about the health of the nation as a whole, that is as a comprehensive population. States from the modern era show an increasing interest for the ratio of births to deaths, public hygiene measures, endemics medical issues, etc. (Foucault 1997, 213-35)
This new emphasis in the exercise of power is a small revolution in itself. While the State previously asserted its sovereignty through its recourse to some disciplinary measures meant to individualize and discipline its subjects (Foucault 1975), it now adopts a holistic approach of its population, in which its subjects are no longer considered in their individuality but rather as part of a larger body. From the viewpoint of political sociology, the State no longer relies on disciplinary institutions such as the prison, the hospital or the asylum but now turns to the development of new sciences such as demography, and provides security and assistance through previously unknown institutions such as statistical bureaus and insurance patterns to establish its authority. This historical shift might appear to tame state sovereignty, or at least to blunt its edges, insofar as it transforms the archetypical sovereign power of the Old Regime to "let live and make die" into the attempt to "make live and let die" (Foucault 1976, 177-91). But it also tremendously expanded the scope of the State's prerogatives. For the life of its citizens is no longer of interest to the State in its political dimension alone, the biological dimension of life now also falls under the yoke of State practices. From now on, power is plugged into life and has as its goal to make it prosper.
While Agamben lauds Foucault for having highlighted this previously overlooked dimension of the political, he also laments the fact that the latter would have underestimated the juridical dimension of biopolitics. Too focused on unearthing a new diagram of power made of an original constellation of institutions and knowledge that bypass the disciplinary logics and rather favor a discreet form of regulation, Foucault would have missed its juridical repercussions. And this seems to be the challenge that Agamben sets for himself in his book Homo Sacer, to fill the legal gap Foucault left in his theory of biopolitics: "The present inquiry concerns precisely this hidden point of intersection between the juridico-institutional and the biopolitical models of power. What this work has had to record amongst its likely conclusions is precisely that these two analyses cannot be separated" (Agamben 1998, 11).
Agamben's argument then takes an unexpectedâand rather risky (Zarka 2005; Balibar 2010; KervĂ©gan 2011)âturn. He argues that to provide a legal addition to Foucault's biopolitics, one should look into to the work of Schmitt on sovereignty. And what justifies this apparently bizarre gathering is the importance Schmitt granted to the juridical category of the exception (Agamben 1998, 13). One of the most often quoted claims of Schmitt is the opening sentence of his Political Theology: "Sovereign is he who decides on the exception" (2005, 5). This claim could be unpacked in the following way. Sovereignty is a borderline concept in the sense that it only applies in extreme cases. Hence the difficulty to provide a proper conceptualization and the debate the notion generated throughout its history. Capitalizing on the work of absolutist authors such as Thomas Hobbes and Jean Bodin, Schmitt paints the sovereign as the legal person whose power must be prevalent and consequently cannot be challenged or contested without losing its sovereign attribute (Schmitt 2005, 53-66). And the decisive moment to establish this sovereign capacity is the moment of the exception, when the positive legal system falls short on regulating the unexpected and is brought to the brink of dissolution. In such cases of emergency, the legal order cannot be hindered by itself if it wishes to ensure its sustainability. In other words, the sovereign has to act undeterred by checks and balances. In exceptional circumstances, the sovereign is the legal person whose authoritative decision will suspend the rule of law in order to restore it. The sovereign will paradoxically exempt himself from the norms embedded in the legal order to better uphold them. In Schmitt's words:
He [the sovereign] decides whether there is an extreme emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety. (2005, 7)
Now this seems to put the sovereign in an impossible situation. For he appears simultaneously to belong to the legal order and to exceed it, to be both inside and outside the scope of law. He sits on top of the pyramid of norms but nevertheless is directly connected to the exception. How can Schmitt make sense of this? While acknowledging that the sovereign is a somewhat paradoxical figure, Schmitt breaks down its relation to the exception into a chronological sequence. When the legal order is thrown into grave danger, the sovereign is he who is in position to declare a state of exception and to temporarily allow himself to overlook the constitution with the aim to restore it later (Schmitt 2014). The moment of exception is then crucial because it reveals the sovereign. But, despite this importance, it is meant to be fleeting. The exception is, in Schmitt's view, no more than an interlude.
While Agamben shares Schmitt's argument on the necessary link between sovereignty and exception, he nevertheless adds a further twist to it. Walter Benjamin (who had carefully read Schmitt though he found himself at the other opposite end of the political spectrum) was the first to contest that the authoritative moment of the decision on the exception could be instrumental in restoring juridical order. He rather contended that, under such an understanding of sovereignty, "the state of exception in which we now live has become the rule" (Benjamin 2013, 433). Agamben further elaborated on this assumption. Under the Agamben-Benjamin's hypothesis, the exception cannot be neatly contained (Agamben 1998, 14). It is not simply one stage in the sequence to restore constitutional order. Since the sovereign remains partly alien to the legal system and therefore embodies the exception, the state of exception remains an ever-present possibility (Agamben 1998, 17). The legal system always depends on what negates it; the norm rests on its suspension. Logically, this means that beyond a certain threshold the exception and the day-to-day functioning of the legal order can no longer be distinguished. Thus, the exception is not a moment, it is a permanent feature of the legal system that reveals its concealed nature (Agamben 1998, 19). In fact, the legal system presents itself like a Mobius strip. What it shows to be external to itself, ends up being at its very core, and vice versa (Agamben 1998, 28). As a consequence, the rule of law and the exception can no longer be neatly separated (Agamben 2003, 89-109). For, beyond a certain threshold, the arbitrary decision and the norm become too intertwined to be separated.
According to Agamben, this invasive nature of the exception echoes Foucault's work on biopolitics. For what they would both tend to demonstrate is that the sovereign power produces a very peculiar form of life, a form Agamben calls metaphorically homo sacer. In archaic Roman law, the homo sacer was an individual that could be killed in perfect impunity but that could not be sacrificed. In other words, the homo sacer's life was so worthless that it could not be offered to the gods and yet could be taken by anyone without legal consequences (Agamben 1998, 48). In Agamben's words, it was a bare life, that is a life stripped of all its attributes. Whereas life in traditional political theory had been considered ever since Aristotle as a bios, that is a life defined by its inclusion in the polis, it would now be pulled towards the zoé, that is the life of animal deprived of any social dimension. A life laid bare and made purposeless. This life, supposedly reminiscent of the biological life being taken in consideration in the Foucauldian biopolitics, would nonetheless be Schmittean to the extent that it mirrors the sovereign. For the homo sacer is included in the political community through his exclusion, just as the sovereign is. His banishment from the community would amount to a politicization of its biological life and/or to a degradation of bios into an intermediate form of zoé. To be sure, the sovereign is all-mighty and the homo sacer is powerless, but their relationship to the political community are nevertheless strikingly similar (Agamben 1998, 11). For they are both paradoxically connected to it by an inclusive exclusion (DeCaroli 2007). They found th...
